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THE

NEW YORK JUSTICES MANUAL,

CONTAINING ALL THE

LAWS OF THE STATE,

RELATING TO THE

OFFICIAL TENURE AND DUTIES OF A JUSTICE OF THE PEACE,
AND THE PROCEEDINGS IN CIVIL CASES BEFORE HIM,

IN FORCE ON THE FIRST OF SEPTEMBER, 1880:

WITH

EXPLANATORY NOTES

AND AN

APPENDIX OF FORMS,

BY

MONTGOMERY H. THROOP,

LATELY ONE OF THE COMMISSIONERS TO REVISE THE. STATUTES.

ALBANY:
JOHN D. PARSONS, Jr., LAW BOOK PUBLISHER.
1880.
 

Entered, according to Act of Congress, in the year eighteen hundred and eighty,
By JOHN D. PARSONS, Jr,
1n the office of the Librarian of Congress, at Washington.

 

WEED, PARSONS & COMPANY,
PRINTERS AND ELECTROTYPERS,
ALBANY, N. Y.
PREFACE.

The Code of Civil Procedure was prepared and reported to the legis-
lature, by the commissioners to revise the statutes, and enacted, in two instal-
ments. The first, consisting of chapters first to thirteenth, (sections 1 to
1495,) was reported at the legislative session of 1876, and on the 3d day of
June, 1876, was enacted into a law, which took effect on the Ist of September,
1877. It has been amended at each subsequent session of the legislature.
The second instalment was reported by the commissioners in 1877, in which
year it passed both houses of the legislature, but failed to become a law, in
consequence of the governor withholding his signature. It again passed both
houses, with some amendments, at the session of 1878, and again at the
session of 1879, and in each year was defeated by the governor’s veto. At
the session of 1880, it passed both houses for the fourth time; and, another
governor then being in office, it became a law on the 6th of May, 1880, to
take effect on the 1st of September, 1880. It consists of chapters fourteenth
to twenty-second, (sections 1496 to 3356,) which were added by the act of
1880, to the portion then in operation ; and one section (§ 3355) declares that,
“for the purpose of determining the effect of the different provisions of this
act”, (that is the 22 chapters,) “with respect to each other, they are deemed
to have been enacted simultaneously ”.

One chapter of this portion of the new Code, chapter 19, establishes a new
system of procedure in civil causes before justices of the peace; and by
another act, L. 1880, ch. 245, the text of which will be found at the end of
Part III of this work, the former statutes, regulating that subject, with a
mass of others, superseded by the new Code, were repealed.

The plan of this work is that which the editor, after much study of the
subject, deemed the best adapted to enable justices of the peace, and practi-
tioners before them, (1) easily to become familiar with the new system ; (2)
to overcome the difficulties, which will at first inevitably attend its practical
application to legal proceedings ; and (8) to ascertain readily, and without the
labor of continually comparing the repealing act with the statute books, what
iv PREFACE.

provisions of the former statutes, affecting those proceedings, are yet in ope-
ration, and may safely be followed.

As the changes in the procedure have been effected by affirmative pro-
visions of a very voluminous statute, much the larger portion of which does
not relate to proceedings before justices of the peace, and by the repeal
of the statutes which formerly regulated such proceedings, it seemed to the
editor, that the best method of accomplishing the first two objects above
stated, was to furnish the text of so much of the new Code as relates to
justices’ courts, eliminated from the remainder, and so arranged that the pro-
visions, affecting each particular subject, might be referred to easily and
without loss of time, those of most frequent use being most easily access-
ible; and that such explanations as would enable each provision to be
understood, construed, and applied, should be placed in close juxtaposition to
the text of the provision itself. Parts I and II of this work have been
arranged upon this plan.

Part I contains the text of chapter 19 of the new Code, entitled “ Courts of
justices of the peace, and proceedings before them”, and containing the new
system; together with the provisions relating to local courts, exercising a
jurisdiction similar to that of justices; and those relating to the fees of
justices, constables, witnesses, jurors, etc., etc. As these are the provisions
which justices, and practitioners before them, will have occasion most fre-
quently to consult, they have been placed in a Part by themselves. Hach
section has its own explanatory note, subjoined to the text of the section
itself.

Part II contains the other provisions of the new Code, which are applicable
to justices’ courts, but either only in common with other courts, and there-
fore to be less frequently referred to; or because they are primarily appli-
cable to other courts, but are taken into chapter 19 by reference. These are
annotated in like manner as the provisions contained in Part I. In both
Parts, the necessary references are facilitated by foot-notes, giving the pages
in this book where the sections designated may be found.

Part III was prepared to accomplish the third object above stated. It
contains the text, without any alteration, of all the other statutes, remaining
unrepealed on the 1st day of September, 1880, which in any manner affect
civil proceedings by or before justices of the peace, with all the amendments
and supplementary provisions, enacted to the close of the session of 1880.
Explanatory notes, and references to adjudicated cases, are also interspersed
with the text. At the conclusion is the general repealing act of 1880.
PREFAOE. v

An Appendix of Forms follows, containing forms for all the proceedings in
a civil action under the new Code; also, for the special proceedings which it
regulates, relating to animals straying on the highways, etc., and summary
proceedings for the possession of land; the new remedy for foreclosure
of a chattel lien; and various proceedings under the statutes contained in
Part IIT.

The notes to Part I and Part II are founded upon the notes prepared, in
connection with the original drafts of the new Code, by the commissioners to
revise the statutes, and submitted, for the examination and criticism of the
bench and bar, in 1872-1874. My colleague, Cuartes Sreszins, Esq., of
Cazenovia, participated fully with me in the preparation of the drafts of the
entire text, and of the notes accompanying them. The text was consider-
ably altered before the bill was enacted; and the notes have been exten-
sively changed, and, in great part, rewritten, to adapt them to such
alterations, and to take in subsequent judicial decisions. They contain full
information respecting the plans and objects of the commissioners, in pre-
paring the different provisions, and the manner in which the latter were
intended to operate, either alone or in connection with others.

In the labor of editing this book, particularly in the compilation of
the statutes contained in Part III, and the preparation of the forms in the
Appendix, and of the Index, I have been materially aided by Joun C. Fow-
LER, Esq., of the Syracuse bar.

MONTGOMERY H. THROOP.
Axpany, July 17, 1880.

x» The new statutes do not affect criminal proceedings, the laws in rela-
tion to which rernain entirely unchanged.
TABLE OF CONTENTS.

PART I.

Provisions of Tae Copz or Crvi, PRocEpurRE, SPECIALLY RELATING TO

PRocEEDINGS BEFORE JUSTICES OF THE PEAOE.

CHAPTER NINETEENTH.

PaGE.
Courts of justices of the peace, and proceedings therein.......++.0+- 1-136
Titte I. Jurisdiction and general powers ..............e-ee eee 3-9
TitLz JI. Commencement of action; appearance of parties; pro-
Vislonial TeMedless sucrose ne seaeanev nerves tee wees 10-39
Art. 1, Commencement of action. ............ 0c cece cece eee eee een eens 10-15
ART. 2. Appearance of parties. ..........02 2. cece cece ee ce eee rece aeenee 15-18
ART, (3), OTder Of BIPEBE, sei vers sisie'o sieve hte Sue ena Giae ewan NGA © 9 wie-siale ey 18-24
Ant. 4, Attachment of property... 0... 0... ccc cece cece eect ete eereee 24-33
ART HB. TROP LE VAD rie. hart a avers visa acstisiiiatese gna wee SS GEN Teles wre gieisa Betas 33-39
TiTte IE. Pleadings; including counterclaims, and pr oceedings
upon. answer of title i... cc.0.seessecscecaccevesanee 39-49
Tirte IV. Proceedings between the joinder of issue and the trial.. 49-60
ART. AGJOUPNIMONES :., 5 5 ac.5:c/eaevarsiayersed dice! daw igiesossesisig’» oie n-0%0 bem: Osa A/S. shore 49-53
Art. 2, Compelling the attendance of a Witness ...........ecs sere eevee 53-57
ArT, 3. Commission to take testimony ..........cseeece ee cess eeee eens 57-60
Titte Vz. Trial and its incidents ........ 0... cece cece econ cee 60-66
Tirtze VI. Judgment; and docketing the same.............60.- 67-72
Tirtze VII. Executions ....... Gabe doomamaceaint snes Seine ea eee 3-79
Tre VALS Appeals iis sac vee eweeee ee eewa eiinelens b Se eases 79-93
ArT. 1. Appeals generally....... a AWNSias - Gover Ate ecewicnine Nie agg Me aaen aves 80-87
ArT. 2. Appeal, where a new trial is not had in the appellate court ...... 87-89
ArT. 3. Appeal fora new trial in the appellate court...............0000- 89-93
TITLE TX, Costs, cs aeswssswewseaes edwin de eves vasa tenes sie’ wine ee 94-97
TittzE X. Actionor special proceeding, relating to an animal stray-
ing upon the highway, etc............ sees e cence 97-118
Tittz XI. Provisions specially relating to courts of justices of the
peace in the city of Brooklyn ........... aches Rata at 118-127
Tittu XII, Miscellaneous provisions ........... Said TE a aatece aie . 127-136
viii TABLE OF CONTENTS.

OHAPTER TWENTIETH.
( EXTRACTS. )

Provisions relating to certain courts in cities, and the proceedings
therein.

Titte IV. The district courts of the city of New-York, and the Pugs,

justices’ courts of the cities of Albany and Troy...... 187-147

ART. 1. Provisions generally applicable to all the courts specified in
this title csescesam saan xo nnwa ears Cake weed ae ee eee weaine 187-141

ART. 2. Provisions exclusively applicable to the district courts of the city
Of New-York). sshecuwjions astne Va 8 dee w ee tee Mewian Rie a etal area ees 141-146

Art. 3. Provisions exclusively applicable to the justices’ courts of Albany
ANE OY ccc orteapisiotadisanceie GiaukaeeaaawiGies aie sceohorais 146-147

Tite V. The municipal court of the city of Rochester ............ 147-148
CHAPTER TWENTY-FIRST.

(EXTRACTS. )

Costs and fees.

TiTLe V. Sums allowed as fees ........... isos Wa inliiaceieiegeteuswiatess 149-106
PART II.

Provisions oF THE Cope or Crvit ProcepurE, APPLICABLE TO PROOEED-
INGS BEFORE JUSTICES OF THE PEACE, AND ALSO BEFORE OTHER TRIBU-
NALS.

CHAPTER FIRST.

(EXTRACTS. )

General provisions relating to courts, and the members and officers
thereof.
Trrtz I. The courts of the State; their general powers and attrib-
utes, and general regulations pertaining to the exercise
thereof.
Art. 1, Enumeration and classification ......... 2... cece ccc ee ee ee eee 159-161
TiruE II. Provisions of general application, relating to the judges,
and certain other officers of the courts.
ArT. 1. General powers, duties, liabilities, and disabilities of judges, and
Officers acting judicially... ..... 0... cece eee cece cece cece eee eee 161-164
Art, 2, Attorneys and counsellors at law........... sites Galax. 164-165

CHAPTER SECOND.
(EXTRACTS.)
Powers, duties, and liabilities of a sheriff, or other ministerial officer,
in the execution of the process or other mandate of a court or judge,
in a civil case.
Trrte I. Provisions relating to the execution of civil mandates
generally........... dur gu eveh ay ataresteroPaya lersucka natant lageran natal 166-167
TABLE OF CONTENTS.

Trrxez II. Provisions relating to the execution, by a sheriff, of a man-

date against the person.
ArT. 1. Arresting, conveying to jail, and committing a prisoner..........
ART. 2. Jails; jail discipline ; and regulations concerning the confinement
and care of prisoners........... 0 ccc cece eee eee e cere eer ecenes

CHAPTER THIRD.
(EXTRACTS.)
Civil jurisdiction of the principal courts of record; organization,
members, and officers thereof ; distribution and dispatch of business
therein.

Titte HI. The superior city courts.
Art. 3. Provisions exclusively applicable to the superior court of Buffalo.
TirteE V. The county courts............-..eceeeee ees heraiginlotaeiens

CHAPTER FOURTH.
(EXTRACTS.)

Limitation of the time of enforcing a civil remedy.
TitLeE II. Actions other than for the recovery of real property.....
TrrLeE III. General provisions....... Oe ee

CHAPTER FIFTH.
(EXTRACTS. )
Commencement of and parties to an action.

Titte JI. Commencement of an action.
ArT. 1. The summons and accompanying papers; personal service there-

of ; appearance of the defendant ..............00.. cee ee eeee .
Tire II. Parties to an action.
Amr. 1. Parties Genera Yo. 6 ce cas sciasine: » Gwinvie we wiles joreidiereer0ld) oboe Sure aiare wiwis
ART. 3. Parties prosecuting and defending as poor persons........... aa6
ART. 4, Infant plaintiffs and defendants..............ceseeeeee a euaceraicareye

CHAPTER SIXTH.
(EXTRACTS.)
Pleadings in courts of record, including counterclaims.

Tirtz I. The consecutive pleadings in an action.
ART, SD, ANSWEOT aieeisicins oe ese dieser oe Pde e-aiaias wee. Bieie a Bie ew oie oie See's a leidin’e
Tire II, Provisions generally applicable to pleadings.............

CHAPTER SEVENTH.
(EXTRACTS. )
General provisional remedies in an action.

Titte J. Arrest, pending the action, and proceedings thereupon.
ArT. 1. Cases where an order of arrest may be granted, and persons liable
TOMITOSb ais et ese sane tener eos andr ec lee etssas Haves
ART. 2. Granting, executing, and vacating or modifying the order of arrest.
Art. 3. Discharging the defendant upon bail or deposit; justification of |
the bail and disposition of the deposit ....... seeseeeeeeseces
B

ix
PAGE.

168-170

170

171
172

173-183
183-192

193-195

195-197
197-199
200

201-204
204-205

206
206

207
x TABLE OF CONTENTS.

CHAPTER EIGHTH.
(EXTRACTS.)
Miscellaneous interlocutory proceedings, and regulations of practice.

Titte I. Mistakes, omissions, defects, and irregularities .........
Trirue III. Payment of money into court, and care and disposition

thereof’. o2sc0cesakavivs ah ePaiee Slee RL Sais go Melee este aes
Tirtz IV. Proceedings upon the death or disability of a party, or the
transfer of his interest.......... silaclanars 16) 6h wal 9 ale aierele ane

Tirte VI. Miscellaneous practice regulations.
Art. 1. General regulations respecting time... .......... eee ee eee eee eee
ArT. 5. General regulations respecting bonds and undertakings...... eee
ART..6. Other Mattersicsie vs ccceersvesnees snes ewes avaie bj alayevelmavoreinrssteys

CHAPTER NINTH.
(EXTRACTS. )

Evidence.

Titte JI. General regulations respecting evidence, and the compe-
tency and mode of examination of a witness.
ART. 1. Competency of a witness; evidence in particular cases...........
Art. 2, Administration of an oath or affirmation...............0..0-e eee
Titte II. Compelling the attendance and testimony of a witness...
TiTLz III. Depositions.
ART. 2. Depositions, taken without the State, for use within the State....
Art. 3. Depositions, taken within the State, for use without the State....
TirLz IV. Documentary evidence.
ART. 1. Documentary evidence, as a substitute for oral testimony........
ART. 2. Proof of a document, executed or remaining within the State.....
ART. 3. Proof of a document, remaining in a court or public office of the
United States, or executed or remaining without the State....
Tirte V. Miscellaneous provisions ......... 2... cece cece cece cence

CHAPTER TENTH.

(EXTRACTS. )
Trials, including jurors and juries.

Tirzx IIL. Trial jurors, except in New-York and Kings counties ;
mode of selecting them and of procuring their attend-
ance.

ART. 1. Qualifications and exemptions of trial jurors

Tirte V. Trial by jury.

ART. 1. Formation of the jury... cc... eee c cece cece ence eee
ArT. 2, The verdict ....... ...... OHUGH Sid ensek dante Rees Gan bacade

TitLe VI. Miscellaneous provisions ; including those relating to em-
bracery and other acts of misconduct..........00.00.

CHAPTER ELEVENTH.

(EXTRACTS. )
Judgments.

Titte I, Judgment in an action.
ArT, 1. General provisions...... athedbdr ih alert Seawers saeneteany wiiaeele usin

Paqg,
208-209

209

209-210
210-211

211-213
218-214

215-220
220-223
223-226

227-229
229-230

230-234
234-288

238-243
244-245

246-252

252
252-258

253-255

256
TABLE OF CONTENTS.

CHAPTER TWELFTH.
(EXTRACTS.)

Appeals.
Tirtz II. Appeal to the court of appeals...... seen eee eeeeeeereces
CHAPTER THIRTEENTH.
(EXTRACTS. )
Lzecutions.

Tirte J. Forms of execution ; time and manner of issuing an exe-
cution ; general duties and liabilities of officers...

Tire II. Execution against property.
Art. 1. Property exempt from levy and sale... ........... eee eee ee ee eee

ArT. 2, Lien of an execution upon personal property; levy upon and sale
of personal property. Rights of indemnitors of sheriff........

CHAPTER FOURTEENTH.
(EXTRACTS. )

Special provisions regulating actions relating to property.
Tirte I. Actions relating to real property.
Ant. 8. Miscellaneous actions relating to real property .......cceee--05-
Tirtz II. Actions relating to chattels.
ART. 1. Action to recover a chattel....... 0... cee eee eee Misses ee? saan
ART. 2. Action to foreclose alien upon a chattel... ...... cece eee ee ee eee

CHAPTER FIFTEENTH.

Special provisions, regulating other particular actions and rights of
action, and actions by or against particular parties.

Titte II. Actions relating to a corporation.
ArT. 1. Action by a corporation, and action against a corporation, to
recover damages OF Property.......... cece ee eee cece eeeeee
Art. 5. Provisions applicable to two or more of the actions specified in
GIS CIT socne anh Sieiscaptrased <a S45 Se wleraTwiniah-Salersrora pide oa Nare any eee
Trrte III. Actions relating to the estate of a decedent.
ART. 1. Action by or against an executor or administrator...............
Titte IV. Other special actions and rights of action.
Art, 8, Action by a private person for a penalty or forfeiture ...........
Art. 4, Certain actions to recover damages for wrongs......... eee ee
Art, 5. Miscellaneous actions and rights of action..... sinters saree SEE a 23
TirLE V. Other actions by or against particular parties.
Ant. 1. Action by or against an unincorporated association ..............
Art. 2. Actions by or against certain county, town, and municipal officers
ART. 3. Actions and rights of action against and between joint debtors. ...

CHAPTER SIXTEENTH.
Actions in behalf of the people, and special proceedings instituted, in
their behalf, by State writ.
TrrtE J. Actions in behalf of the people.

ART. 8. Action for a fine, penalty, or forfeiture, or upon a forfeited recog-
NIZANCE) 6 a 5.05, 4 6 sjo-s Sa AvveeENenwe we i Feet eee s SS Heewal eeu etar

xi

257

258-259
260-263

263-266

267-269

270-285
285-287

288-291

291-292

292-293

293-296
296-297
297-303

303-307
807-310
310-317
xii TABLE OF CONTENTS.

ArT, 6, Miscellaneous provisions, relating to actions, etc., in behalf of the PAGE.
Peoples 65 ics sdesvids wwhevaeeeawwoows aera, qe eKee See 9% 820-821

Tire II. Special proceedings instituted by State writ.
Art, 2. The writ of habeas corpus, to bring up a person to testify....... 821-322

CHAPTER SEVENTEENTH.
(EXTRACTS.)
Certain special proceedings instituted without writ.

Tite II. Summary proceedings to recover the possession of real
property....... suereg@ Rane yee wae Relaaeaie SS Sea ow Slee 323-345

CHAPTER TWENTIETH.
(EXTRACTS.)

Provisions relating to certain courts in cities, and the proceedings
therein.

Tirtz I, The marine court of the city of New-York....... ceeceee 846-847

CHAPTER TWENTY-FIRST.

(EXTRACTS.)
Costs and fees.

Titte I. Awarding and enforcing payment of costs.

ART, 2. Regulations respecting the awarding of costs in particular cases... 348-350
Titte II. Fixing the amount of costs.

ART. 1. Sums allowed as costs ; disbursements...........ccccecscceeees 351-352
Tire IV. General provisions relating to fees.............ee0eee0. 852-854

CHAPTER TWENTY-SECOND.

Definitions and regulations concerning the construction, effect, and ap-
plication of this act.

Trrte J. General definitions, and rules of construction............ 355-359
Tirtz II. Provisions regulating the effect and application of this act. 359-365

PART IIL.

ConstrrutTionAL Provisions, AND STATUTES REMAINING UNREPEALED, RELATING
To JusTICES OF THE PEacrE IN THEIR crviL CAPActry.
I. Provisions relating to the election, residence, qualification, and official
oath and bond of justices of the peace, and resignation of, removal

from, and vacancies in thetr Office.... 0.4.4. aisha aiaiade unser rons: 367-3881
Election and official tenure...............000- th Vidwwews wes oe. 367-374
Const. of N.Y. State, art. vi, 8$ 13, 18, 21.0... cece cee eee e cece ees 867-368

LR, §.,705,-5)1. hdmi, 86,88). cue: acada seduce ddat ease bene eaeieen 368
1R.S., 111, 112, 8§ 85-46 (1 Edm., 101-102)... 2. ce eee eee eee 3868-370

Ty, 1929, ch.856 (B-Hdm., 39)... 206. ceeca vices aye cece n geese eeu a vine 871

Ti, 1880,. ch 290 (Hd it... 40). ssc cs sis ard wig editte g 044 qeigis 24 gearing asad weer 371-372

L, 1833, ch. 270:(3 Bdim., 40).2 6 ans ccnainccecee eee cee eee gence cemeenees 372-373
TABLE OF CONTENTS. xiii

PaGk.
Residence . cesta ile apache eae pian crag apgaels wm Piouasahe Sisley sie ates eases 874
1R. S., 102, g 12 (t Edm, aia antes we haakau cance ee’ age yf els 874
Qualification. ........... 0.0.00. Rises ceases Danis Wemtenerarememnits seers 374
1R.G., 116, $1 (1 Edm, 106)...... cece ec ce cee e sec c cee eeccecennseeeeucs 374
L, 1852, ch. 304, § 5 (3 Edm., 336)...... 0... cece eee cece ee eee ee eens 874
Official oaths and bonds........... eo er ota anctana - 874-379
1 R.8., 119-121, §§ 20-31 (1 Edm., 109-111) abodidie: pias di miaimunsieioloversaarer eee Se 374-3875
Le, 1882, chs 1093 HGih 298). a5 sive acamnereayayorn tre anc. crurdieesoualb eters ealg asia’, 09 9° 376
L. 1878, ch. 107, as arsentted by Ly, 1878, Ch. BOT cca c ccc ew ede iaeeseess 376-377
Ls 1879,- Chi QOL sit oc oonseeltecandn weal eck a Gale ein Hoe aoe ee teateecees 377
Tete, 1879 CW BGO vii oicciecn cists cietesles sla otee grea me ginaan parece ve ee oe dgee deals 378
Tis 1880) Chis 221 ct ssinsavslie vetsnemedlde: Aber waaure sidan wiadoes ge be eee ss 378
Ti, 1800), eh Al ey ctx tewsxinaae aeennwedualammenmiinny Gavnerees iw 379
Resignation and removal from office........... setunacale Ske eiike aie dv . 379-380
AT GS Bee Geena AI. shee act nreatodthncciccatces ecane vee ame et oae 379
1B OAS: 11138 86 (1 Wdmis 101) 3.5 ven dnctscvrascesannme an ockevseesterve 379
L. 1847, ch. 280, § 25 (4 Edm., 563), as amended by L. 1880, ch. 354....... 379-380
Vaan Clee: suicil eisud tape wig dno ses visto thigicegeanes <iveweeews eenes 380-381
1R.S&., 122, 8§ 34, 36, 40 (1 Edm., 112-118)... 0... eee eee ee cee 880-381
L. 1859, ch. 476 (8 Edm., 322), as amended by L. 1875, ch. 166....... ee 381
LD, Turisdiction .. cc. cece cece eee eee NikMee bee Teese Raa . 382-387
Jurisdiction in particular cases........... a ide Stein lori nia rs olor ey aan each 382-384
L, 1842, ch. 180, § 5, as amended by L. 1847, ch. 240, § 2 (1 Edm., 116).... 882

L, 1870, ch. 291, tit. 5,§ 3; id, tit. 8, §§ 7 and 9 (7 Edm., 694, 702, 703), as
amended by L. 1878, ch. 59, 8§ 6 and 9......... cece cece cece seen ee eees 882-383
G.1878)ch: 646.0, Bd. 698)... sc cucgwecewecey eae pasice ieee es tee gioneats 383-384
2B. 8.,'286, § 59: (2 Edm., 296) soo ciae esicnccs suessceeesaneewersetecceuee 884
Civil jurisdiction of police justice... ..... cc eee eee eee seeeeees 885-387
L. 1880, ch. 285.......... pala Gctacareel tenia aa cate ou aise Gane eenindea amare 3885
L. 1875, ch. 514, as amended by L. 1876, ch. 808..........0ce cesses ee eees 885-387
III. Proceedings before them regulated .........eeececeeee eleeweues 387-401
OLVICE Of MANCALCS esis saseaiersd en's Veiae DEA Wow aaeuarale eviessaise os 387-391
1.R.S.; 675; § 69. (1 Bd), 628) jicsccve tess scasse® acnonosos enineden 209s 387
Vis1847, chi. 349 (4 Wdiniss°45) «04.05 wcandhiwseaw aes oveds pox cs base sexe 387-388
eS I is Weds Bos 2 5 2s.5 xcasnwasiimadnmtareue axaten ee ees 388
L, 1842, ch. 130, § 4 (1 Edm. 116).........ccc ccc ceeceeeeeceeeaee een eens 388
Pic AB 1S; cCheBod Gaseceie ys £5.45 Melati A wdeene eater aoe hae AERA SAM Sean 389
S18. 985-Be Deny OB, OOO) wcwnunsnbalenuaeesaxdunasesdsoakor 389
Ti 1879, Chi 102 sc rcnde deste t.ca.s Remnant poeeeeeeawlsa aad Sameera ne 890-391
Tx 1879; (chi2300 sini Oi oss eeeure geeen win haaeaeaies sien Wad So tegearsiooweraes 391
VIN C6: ois, bs cies etek ce ieee a hes eee wa eles aL read eee eeu eve OOL=B98
L.1870, ch, 291, tit. 8, 3 8:77 Hdm.,%02) . os scwescdewessee sesnseensccenee 391-392
Ua 187%, chy Bilesas cccccs cass sa tacsawenesiseeenashesnragsvegadacuseans 392
Ts, LST9,. Chis 21 iis schoo ee hee 20S HSS AMOR RORRAT RE FG SNES ORE SEES 892-393
Ti, 1880, Ch i36 ac eceean se aes see eine CeO rer eR eee Coe 393
Actions by executors...........0.-0000 ieee alerstelaehee se oma ae ees 393-394
2 Re 8. 118,85 1-4 2. Editi, 11) woke eat cara nes iene aa Serre tess 393-394
2R.8., 447, 448, §§ 1, 2 and 11 (2 Edm., 467, 468) 0.0... 0... eee eee eee eee 394
Proceedings to recover surplus on tax sales....... nee aes rire 395
2R. 8., 555, §§ 28-30 (2 Edm., 576) 2... cece eee cee eens 3895
Pein al testis ccsen Nav Gastuoesia cteca Sanh a aueesrara dow wl aura oilers wie iausd eae te 895-398

Li; 1875, ch, 482; §1, subd. 15. cc eec esc ces seen nedeaws cov ew eens a6 ea 395
xiv TABLE OF CONTENTS.

PaaeE
Li, 1876) chs BB sssaurrnacsae vesicinwe eee eae scare cinerea es eee ee eeeneeee . 396
L189) Che V1 picvrsawdgaadisa de cstaans eadaeeewaawaseneweeaswaieneen 397
2 RK. S., 229, $§ 23 and 24 (2 Hdm.,245)...... 0. cece cece cece nec eeeeee 397-398
oR, 8.5 267, § 231 (2. Bdim., 275) coccccc ee sek vveviesvevsewas eheeeeeee 398
Proceedings to recover books, etc., of canal employees .........++6+ 398
1 R.S., 249, $8 183 and 184 (1 Edm., 250)......... cece cece eee ence eens 898
Actions, etc., by or against towns............56 se cece tree eeeenes . 899-400
R. 8., 356, 857, $8 1-6 and 8 (1 Hdm., 329, 330).......0cceeeeeeeee eee ees 399-400
Actions, etc., by or against counties.......... as shiaisalieeyexhoce cote apetans 400-401
TERS), BOA NES CL Midinisy B07 )u.ueconaw nav ene wea hnaw Rea W euedlue o venE Set 400
1B. S., 884, $3 1-6 (1 Edm., 856) 0.00... cccccceeeseeeeeeeeeeceeeeeeees 400-401
2B. 8, 556, § 85 (2 Bdm., 577)... .ccceseveeseceeavseeneceseeeeeseeees 401
IV. Political powers and duties ....ncscccsccecesceeee ceveceeees 401-423
Duties of justices of the peace at town meetings.....:...++006- «..- 401-402
1B.S., 842, 8§ 11-13 (1 Edm., 315)... 0... eee ee cece eee teen eens 401-402
Proceedings by justices of the peace relative to vacancies in town
offices, and to the resignation and removal of officers........ 402-405
1R. S., 347, 348, §§ 31-87, as 8§ 34 and 37, are amended by L. 1830, ch.
320 (1 Edm., 320, 321), and § 31 by L. 1874, ch. 548 (9 Edm., 968) ....... 402-403
L. 1845, ch. 180, § 4(8 Edm., 804)... .... cece cece eee e eee eet e ee eeeee 404
L. 1845, ch. 180, § 2, as amended by L. 1847, ch. 455, § 1 (3 Edm., 311).... 404-405
GE. BBP £8 968-905 978 Ent, B81) ninnancxnensicnawanvadsiseresaneas 405
LR. S., 124,847 (1 Bdmy 118). cssscisiccsoeveasevernsese seers eeaerienes 405
Of the board of auditors of town accounts....... ayaa ara saeuage%s oo» 405-421
1B. S., 855, 88 46-49 (1 Edm., 898)..... 0c cee ececeeee eens ee eeseeeaeees 406
L. 1840, ch. 305, as § 2 is amended by L. 1844, ch. 228 (3 Edm., 302)...... 406-407
2R.58., 555, § 27 (2 Edm., 575), as amended by L. 1874, ch. 321 (9 Edm.,
BOI, Sora ec pscre Pe anes stele RIS a A i kno fat Ae wae ate 407-408
L. 1845, ch. 180, §§ 23-27, as amended by L. 1847, chs, 455 and 490 (3 Edm.,
B01, :808 SLO) e.e ssinesccd wae eee Keds dere fe PREMERA aR ET eee 408-409
L, 1847, ch. 455, §§ 24 and 26 (8 Hdm., 318)....... 2. . cece eee ee eee eens 409-410
L. 1866, ch. 882 (6 Edm., 867), amending L. 1860, ch. 58 (8 Edm., 323)...... 410-411
L. 1869, ch. 855, § 6, as amended by L. 1870,ch. 432, § 1, and L. 1871, ch.
21449 Edin (3)acageiscsd. wees vcwedwes aca stews Sens awins nan sSweeets 411-412
L,, 1863, ch. 172(6 Edin. 84) s.06ccsvcavees caviar sees ove ewe seer cewees 412-413
LL 1845; ch. 334, 88. 4-7'(4 Edm, 8)scccecavsicv sve cses eradesnneveesemees 413-414
1 RB. S., 627, 88 52 and 53 (1 Edm.,579)......c.cceseeeseeeeseseeeeeees 414-415
Li; 1864, chi 197 (6 Hdm,, 241): cacceew. aeiex wiocer sivas scam ewe te cleeoeis cave 415-417

L. 1862, ch. 244, $$ 1 and 2,amending 1 R. S., 708, 8$ 1 and 4 (1 Edm., 655). 415-416
L. 1865, ch. 442 (6 Edm., 485), amending L. 1858, ch. 108, § 1 (8Edm., 543). 417-418

G..1874, ch, 587 O Edm. 96) osccssocsadeaseeesaguase osansldeesaes sass 418-419
{FE 8.888, SS Land 2:2 Bam, $815 .0c0s caueusanensen ses ass Bist slats 419-420
1 RB. S., 385, §§ 1, 2 and 4, and part of § 8 (1 Edm,, 857)... ............0 0 420-421
LR. 8.5 62858 OF ( Bdms; 580) nes eweasuew ee baeeeresanoweadeaewauapaen 421
1882) chy 26) $1. (4 Bdiny 4): sccsrenssinscysaasaetoaiioawsietasewaiare dies 421
Powers of commissioners of deeds conferred on justices of the peace. 421-422
Es 1840; ch.298, 8:1.(8:- dm, B02) 0.5 sccm sus vleneaw ed cedery cai apes anise ens 421-422
QR Bo OOo oa HAM, 298) snus noe cainemncagneudismecengeacesiceees 422
Justices of the peace as coroners........ adalat aad onotectie i Giagseitoretacehe wee 422-423
Te 1864 veh.379 (6: Bd. 260)cccovssiew, Geeesess esx yee ys see see ee Seas 422-423
V. Certain civil special proceedings ....... cee cee cee eee eens «+ 423-493
Proceedings relating to strays..............5. ee er 423-425

1) R$ ,858$8 19-29) Cl Bidun., 824) cs sicseieucss oe sinisiewreea ei eae acai 423-425
TABLE OF CONTENTS. xv

PAGE,

Proceedings relating to division fences..............- cee ee ens 425-429
1B. §., 353, 88 80-45 (1 Edm., 326), as mend} by L. 1850, ch. 319; f
1860, ch. 267; L. 1866, ch. 540; L. 1871, ch. 635, and L. 1872, ch. 877 (9

Edm, 106; 862) 01s a0 cnatntas set net veda nivy sohd aie pasate taanaNdons 425-429

Li. 1888, ch. 261 (8 Hdim:; 800). vcaacsiesice Gemscene dace laeeies canines stedie 429

Proceedings upon the non-payment of highway tax .............. ‘ 430

1B. S., 510, 8§ 41-45 (1 Edm., 469), as § 45 ig amended by L. 1880, ch. 308. 430

Proceedings to recover penalty for obstructing highways ........... 431-434
1B. 8., 521, $$ 102-108 (1 Edm., 481), as amended by L. 1840, ch. 300, and

L. 1870, ch. 125 (7 Edm., 660)........ iS oyna hia asa asaieranmunnayao ecolavelre Nualtacasiaadaae 431-432

L. 1862, ch. 243 (8 Edm., 546)......0....cccce cessceesececeeeeceracers 433-434

Proceedings to remove gates on highways.............. see ees 434-435

1R. S., 523, $$ 113-117 (1 Edm., 488)... 0... cece ee eee eee eee rece eee 434-435

Proceedings to assess highway damages....... chiara ate SERS Dery es 435-442
L. 1845, ch. 180, § 5, as amended by L. 1847, ch. 455, § 2, and L. 1872, ch.

Sis @ Hdmi, 819; O.Mdms., B60}: cours sacraansas cc caeaverncecedcanada 435-436

L. 1847, ch. 455, $$ 3-7 and 11 (8 Edm., 312-814, 815)................0.. 436-488

L. 1857, ch. 491, as amended by L. 1858, ch. 51 (8 Edm., 589) ............. 439

1R.5., 514, § 60 (1 Edm., 473), as amended by L. 1877, ch. 465........... 439-442

Proceedings relating to landlord and tenant.......... Geienedous 442-447

1R. S., 745-748, §§ 7--27 (1 Edm., 696-699) ....... cece eee ceeeeee eee 442-445

L. 1846, ch. 274 (4 Edm., 482), repealed by L. 1880, ch. 245.............6. 445

L, 1860, ch. 345 (4. Hdm., 483) c.c.ssecceseiescesescessssiieneneneveoeoce 446

L, 1878, ch. 583:(9 Edm,,.658) 2 coc cccccscetetaecscccdencesecsecasasens 446-447

Proceedings to create and enforce a mechanic’s or laborer’s lien..... 447-474
L. 1854, ch, 402 (4 Edm.,673), as amended by L. 1873, ch. 489(9 Edm., 620),

and Li 1875, ch. 290! 4. scsi senteaetwwdaeteceGeaeseve tessa seaes 447-458
Li; 1854, ch: 402;'S 15 (4 Hdim.,677) cc.sc.ecceseeue wees vest sasea sez aees ve 458
2h, 1858; ch. 204.(4 Bdm., 679) 0:65 siccwscsadeesewndovisanat soaeneels tae yeaa 459
Dy. 1870, ch. 629 (7 Edim,, 754). -s:accssiacemegseeea ewan heels gen dau asses ee 459
Li; 1872, chy 669 (9 Hdm., 419) .ssccssccanswe veri vencevscesecesaussainayy 459
Li; 1880: chi440 ccseesle veins cals eels sees atearmeee teens ee so ecedeeexes 459-465
Wa. 1875; Chy 898: weswsewine soee ss 42 6bes Geena See oe ved 0S44958 Ge ea ae 465-467
Te 1878, CB BUD: ois n seascs secon caverns asee x Sieg See wl avs winced dacs iare Hohe raduaeaneracee 467-470
Dic DL BROS CW ASG: secs cock viacovte es cide Beis a0 scar ooo dlava eon areaajunne musaseauNe Del aie dMatmnesIND 471-474
Proceedings to enforce penalties for violation of game laws. ...... . 474-493
L. 1879, ch. 584. as amended by:

Gs, 1880,:chs, 584 and O31is. ceccceaa keds hart ewnaahananayennes 474-491
Gi 1880;:chy 531585 6-93.05 seals siestsiewicsiesiieis wie deeiessuleive cess eunnels 491-492
T1880; chy, 450.8 wana cde esa sawwagrnnck cet anavies se cease ees 492-493
Toy 1880, Chi. 282 vresisicsaciiee e's Sateeeie cea seawaes eUeee eaten Tee eis eels 493

VI. Proceedings relating to the public health, hawkers and peddlers,
absconding parents, and other ee TOGUIALIONS 0. ooo eve ce ccceceee 493-500
leat: iiss. wee esi sage rane aie Sheen igs ceux sera roua eh otars 'e eia teas heen 493
1R.8., 451, § 22 (1 Edm. 398) PROPEL ES ZSOe ¢ eae sVeRUSeVeSEEEREOeE tesa 493
Hawkers and peddlers........ i viveierdidip eeden wi oe ela omnes sues ecole 494-495
1B. 8., 576, 677, $$ 8-12 (1 Edm., 534, 535)... .. cece ee. cece ee ero renee 494-495.
Absconding parents........ 0 ccc cece cece cece eee Ske SAS easioe ed 495-496
1B. 8., 615, 616, $$ 8-12 (1 Edm., 567,568)... 0... cece ee eee eee eee 495-496
Relief Of POOP sac .sisats se sock See tadedavawleeoseas sone ddaslblat ie ote 496-498

1 B.S. 624, 625, 98 42-44 (1 Edm, B77)......0recccsccasesessccsuscuees 496-497
xvi TABLE OF CONTENTS.

PaGE,

Ji, 1834,ch, 286 (4: Bdim,, 8). sie sicnsnsatniwesdiworiecnbuwssancecwanes siete 498

1s; 1645; eh, 804, 88 G Fd i sccannasacas eas deredeateenesawe Se aeuai 498

Sale of intoxicating liquors.......... 2.0006 egal iia'a elves 498-500
L, 1857, ch. 628, 88 19 and 20 (4 Hdm., 52).......c.cecsecesccceceeceees 498-499

Ty AST oh AA A Wa OID, ca nisnnsns wneer aut eewerwrewaedunss 500
THE GENERAL REPEALING ACT OF 1880....... cecceeeee 501-514
* Ge 1880 ch. 245... ceavisnwes socio taae, Gasdsoed caves eer eek ee tae samaeeiew ne 501-514

APPENDIX OF FORMS ............ cece eee cece cecccecceee S1L5-575
THE

NEW YORK JUSTICES MANUAL.

PART I.

PROVISIONS OF THE CODE OF CIVIL PRO.
CEDURE, SPECIALLY RELATING TO
PROCEEDINGS BEFORE JUSTICES
OF THE PEACE.

CHAPTER XIX.

COURTS OF JUSTICES OF THE PEACH, AND PROCEED-
INGS THEREIN.

TITLE I— JURISDICTION AND GENERAL POWERS.

TITLE II—ComMMENCEMENT OF ACTION; APPEARANCE OF PAR-
TIES; PROVISIONAL REMEDIES.

TITLE III— PLEADINGS; INCLUDING COUNTERCLAIMS, AND PRO-
CEEDINGS UPON ANSWER OF TITLE.

TITLE IV.— PRocEEDINGS BETWEEN THE JOINDER OF ISSUE AND
THE TRIAL.

TITLE V.—TRIAL AND ITS INCIDENTS.

TITLE VI.—JupGMENT; AND DOCKETING THE SAME,
TITLE VIl— Exxcvurtions.

TITLE VIII.— AppEALs.
JURISDICTION. [CODE CIV. PROC.

TITLE IX.— Costs. 7

TITLE X.— AcTION OR SPECIAL PROCEEDING, RELATING TO AN
ANIMAL STRAYING UPON THE HIGHWAY.

TITLE XI.— PRovIsions SPECIALLY RELATING TO COURTS OF JUS-
TICES OF THE PEACE IN THE CITY OF BROOKLYN.

TITLE XII.— MIscELLANEOUS PROVISIONS.

PRELIMINARY Notz.—In preparing the notes to this chapter, the
editor’s chief object has been to lessen, as far as possible, the doubts
and embarrassments which justices of the peace, and those practicing
before them, must unavoidably experience from the enactment of a
new statute, containing a complete system of procedure, which, in
many particulars, is different from that formerly in use, although
examination and practical experience will show that the changes are
less numerous and extensive than it has been generally supposed.
Accordingly the editor’s efforts have been mainly directed to pointing
out the interdependence between the various parts of this chapter, the
connection between this chapter and other chapters of this Code, and
the differences between this chapter and the former statutes relating to
justices’ courts, so that the persons referred to may the more readily
understand the meaning and effect of the language employed, and dis-
tinguish those provisions which accomplish changes in matters of
substance, from those which affect the phraseology merely, leaving
the directions of the former statutes practically unchanged. The
better to carry out this object, he has, except occasionally, where a
particular point was to be elucidated, refrained from extensive cita-
tions of decisions under the former statutes, because they are so
numerous, that to collect them and explain them fully would swell the
notes to such a bulk, that their usefulness for the editor’s main pur-
pose would be greatly impaired. Such of the adjudications as are
applicable to the new statute can readily be applied, where the points
of divergence or convergence between the new statute and the old
have been ascertained. Indeed, the most material changes, effected
by this chapter, are those which tend to conform the procedure
in justices’ courts to that of the supreme court and the other
principal courts of record; for the statutes regulating the juris-
diction and general powers of justices of the peace, and many of the
provisions relating to the procedure before them, have been subjected
to few and comparatively unimportant changes. With respect to those
particulars in which the procedure has been thus assimilated, the author-
ities upon the procedure in the principal courts of record will be gene-
rally applicable to that of justices’ courts, because the phraseology, as
well as the substantive directions of the provisions of this chapter,

2
CHAP, XIX. | JURISDICTION. 8§ 2861-2862.

TITLE 1,
regulating the latter, has been closely conformed to those of the other

chapters relating to the former.

In applying the provisions of this chapter, it must be remembered
that, by the terms of § 3347, subd. 11 and 12, nearly all its pro-
visions are expressly excluded from operating upon actions and special
proceedings commenced before September 1, 1880.(*)

TITLE I.

Jurisdiction and general powers.

Sxc. 2861. Justice’s jurisdiction must be specially conferred by law.
2862. General civil jurisdiction.
2863. No jurisdiction in certain cases.
2864. Confession of judgment.
2865. Actions by and against officers, etc. ; and by executors, etc.
2866. Tavern keepers disqualified.
2867. Members of legislature not compelled to act.
2868. Justices to hold courts; general powers,
2869. In what town, etc., action must be brought.
2870. Criminal contempts.
2871. Id.; how punished.
2872. Offender to be heard.
2873. Record of conviction.
2874. Requisites of commitment.
2875. Fine to be paid to overseer or superintendent of the poor.

§ 2861. A justice of the peace has such jurisdiction in civil sustice’s
jurisdic-

actions and special proceedings, as is specially conferred upon him by tion must
e@ spe-
cially con-
statute, and no other. ferred by
aw.

[New in form; an amplification of the last clause of the opening
sentence of Co, Proc., § 53.]

§ 2862. Except as otherwise prescribed in the next section, a jus- General
tice of the peace has jurisdiction of the following civil actions: dintion,
1. An action to recover damages upon or for breach of a contract,
express or implied, other than a promise to marry, where the sum
claimed does not exceed two hundred dollars,
2. An action to recover damages for a personal injury, or an in-
jury to property, where the sum claimed does not exceed two hun-
dred dollars.

3. An action for a fine or penalty, not exceeding two hundred
dollars.

 

(a) Section 3347 will be found on page 360.
§ 2862.

. TITLE 1,

JURISDICTION. [coDE CIV. PROC.

4. An action upon a bond conditioned for the payment of money,
where the sum claimed to be due does not exceed two hundred dol-
lars ; the judgment to be rendered for the sum actually due. Where
the sum secured by the bond is to be paid in instalments, an action
may be brought for each instalment, as it becomes due.

5. An action upon a surety bond, taken by any justice of the
peace.

6. An action upon a judgment rendered in a court of a justice of
the peace, or in a district court of the city of New York, or ina
justices’ court of a city, being a court not of record.

7, An action to recover one or more chattels, with or without
damages for the taking, withholding, or detention thereof, where the
value of the chattel, or of all the chattels, as stated in the affidavit
made on the part of the plaintiff, does not exceed two hundred dol-
lars.

[Co. Proc., § 53, amended, in matter of substance, as follows: The
phrase, “excepting as in the second section it is provided”, has been
omitted from the preliminary sentence ; it is unnecessary, and, in
that place, unintelligible. This phrase was inserted by L. 1861, ch.
158; and the “second section” referred to was the second section of
that act, which preserved the jurisdiction in actions to recover chattels.
In subd. 1 of the foregoing section, the phrase, “to recover damages
upon or for breach of a contract express or implied”, has been substi-
tuted for “arising on contracts for the recovery of money only”, so as
to harmonize the language of the subdivision with that of other parts
of this Code; and the phrase, ‘‘other than a promise to marry”, has
been inserted, as it was thought that such an action should not be tried
in a justice’s court. Subd. 2 is subd. 2 of the Code of Procedure,
unchanged in meaning. The meaning of the phrase, ‘‘for a personal
injury, or an injury to property”, which has been substituted for
the phrase, ‘‘ for injury to rights pertaining to the person, or to per-
sonal or real property”, will be rendered quite clear by reference
to § 3343, subd. 8, 9 and 10, of this act. See Coulter v. A. M.
U. Express Co., 56 N. Y., 585. Subd. 3 consists of subd. 3 of
the Code of Procedure, amended by inserting, “fine or”, before
“penalty”, to harmonize the language with other portions of this
Code. ‘The fourth subdivision of the Code of Procedure, which reads,
“an action commenced by attachment of property, as now provided
by statute, if the debt or damages claimed do not exceed two
hundred dollars”, has been omitted ; because such an action will,
under this Code, come clearly within either subd. 1 or subd. 2 of this
section. The phrase in subd. 4 of this section, “where the sum
claimed to be due does not exceed two hundred dollars”, has been
substituted for ‘‘not exceeding two hundred dollars, though the pen-
alty exceed that sum”, in the fifth subdivision of the Code of Proced-
ure; as the latter phrase does not express the intent of the legislature,
which was, that an action might be maintained, whenever the sum to

4
CHAP. XIX. | JURISDICTION.

be recovered did not exceed two hundred dollars, although the bond
was conditioned for the payment of a greater sum. Subd. 5 consists of
subd. 6 of the Code of Procedure, amended by substituting the words,
“any justice of the peace”, for ‘‘them”, to avoid an ambiguity in
the present statute, and omitting, as unnecessary, the words, “though
the penalty or amount claimed exceed two hundred dollars”. Subd.
6 consists of ‘subd. 7 of the Code of Procedure, amended, by omitting
the phrase, “where such action is not prohibited by section seventy-
one”, as it is covered by the opening clause of this section, and the
subject provided for in § 3154, post; and by substituting the phrase,
“in a district court of the city of New-York, or in a justices’ court
of acity, being a court not of record”, for the phrase, “by a justice
or other inferior court”, so as to exclude judgments rendered in courts
of record. The eighth subdivision of the section of the Code is
improperly included therein, as its subject is not embraced in the
opening phrase of the section. It is provided for in § 2864, post.
Subd. 9 of the Code of Procedure is omitted; as it is fully covered
by subd. 2 of this section, the acts specified therein being clearly
injuries to property, within the definition contained in § 3343, subd.
10. Subd. 7 of the foregoing section is subd. 10 of the Code of
Procedure, amended by adding the clause in reference to damages;
by omitting the words, ‘“‘his agent or attorney”, the subject being
provided for in §§ 2920 and 1712 of this act; and by substituting
“two” for ** one’’, in accordance with L. 1876, ch. 431. The remain-
der of L. 1860, ch. 131, which was inserted by the publishers of the
several editions of the Code of Procedure in the tenth subdivision, is
provided for in tit. 2, art. 5, of this chapter. It will be seen from
this explanation, that the foregoing section makes no material changes
in the jurisdiction of justices of the peace under the former statutes. | (*)

§ 2863. But a justice of the peace cannot take cognizance of a
civil action, in either of the following cases :

1. Where the people of the State are a party, except for one or
more fines or penalties not exceeding two hundred dollars.

2. Where the title to real property comes in question, as pre-
scribed in title third of this chapter.

3. Where the action is to recover damages for an assault, battery,
false imprisonment, libel, slander, criminal conversation, seduction,
or malicious prosecution.

4, Where, in a matter of account, the sum total of the accounts
of both parties, proved to the satisfaction of the justice, exceeds
four hundred dollars.

5. Where the action is brought against an executor or adminis-
trator, as such.

[Co. Proc., § 54, amended by substituting “two” for “one” in
subd.1, and inserting the words, “one or more fines or”, in accordance
with asimilar change made in § 2862, subd. 3, ante. Sce 66 N. Y., 646.]

5

 

(a} Section 1712 is on page 281; 8 3343 on page 356. L. 1880, ch. 235, §3, limits the civil
jurisdiction of village police justices to cases where the village is a party in interest.

§ 2863.

TITLE 1.

No juris-
diction in
certain
cases.
§§ 2864-2867 JURISDICTION. [CODE CIV. PROC.

TITLE].
Confession

of judg-
ment.

Actions by
and

against
officers,
etc.; and
by execu-
tors, eto.

Tavern
keepers
disquali-
fled.

Members
of legis-
lature not
compelled
to act.

§ 2864. A justice of the peace has also jurisdiction to render
judgment, upon the confession of a defendant, as prescribed in title
sixth of this chapter, where the sum confessed does not exceed five
hundred dollars.

[Co. Proe., § 53, subd. 8.]

§ 2863. An action, cognizable by a justice of the peace, may be
brought by or against a corporation; by or against a natural person
in his own right; by or against a town or county officer in his official
character; or by an executor or administrator.

[2 R. 8., 226, Part 3, ch.2 tit. 4,§ 5(3R.8., 5th ed., 327; 2

Edm., 241), amended so as to expressly allow an action to be brought
against, as well as by a corporation, in accordance with L. 1847, ch.

‘470, § 45 (4 Edm., 589). This section is probably unnecessary in view

of the fact that § 2863, ante, defines the cases in which a justice shall
have no jurisdiction, and §§ 446, 449, 450, 454, 455, 468 and 749,
are made applicable to justices’ courts by § 3347, subd. 3 and 6.
Under these provisions, all persons interested, may be made plaintiffs ;
the action must be brought by the real party in interest, except that
trustees, etc., may sue without joining the person interested ; a mar-
ried woman may appear, prosecute, or defend, as if she was single ;
persons severally liable for the same demand may be sued together or
separately ; the defendants thus sued may apply for any relief they
would have been entitled to, had they been sued separately ; infants
may bring actions; and actions upon securities given to or taken by per-
sons, officers, guardians, committees, or other trustees, may be main-
tained by such persons in their official or representative capacity.
Actions against joint debtors are allowed by § 3020, post. ](*)

§ 2866. A justice of the peace, who is an innholder or tavern
keeper in fact, has no power or jurisdiction under any provision of
this chapter; but if a judgment has been actually rendered by him,
oefore he became so disqualified, he may give a transcript thereof, or
issue execution thereupon, or satisfy the judgment upon payment
thereof.

[L. 1846, ch. 140 (3 R. S., 5th ed., 427; 4 Edm., 548), amended by
inserting the provisions allowing the justice to give a transcript and to
satisfy the judgment upon payment thereof. It was held in
Rice v. Milks, 7 Barb., 337, that a justice, who is a tavern keeper, was
not disqualified, either under the act of 1846, or under the section
of the Revised Statutes which it superseded, from entertaining a special

proceeding ; but this section is broader, and forbids such a justice from
entertaining any proceeding regulated in this chapter, ]

§ 2867, A justice of the peace, who is a member of the senate

or assembly, is not obliged to take cognizance of a civil action or
6

 

(a) The sections referred to in this note, not belonging to this chapter, will be found on
pp. 195—197; 200; and 209.
CHAP. XIX. ] JURISDICTION. §§ 2868-2869.

special proceeding ; but he may take cognizance thereof, in his dis-
cretion.

[Section 7 of the R. S., amended by inserting the words, ‘ or special
proceeding ;” and by omitting the words, “‘ or being a judge of any
county court.”’]

§ 2868. A justice of the peace must hold, within his town or
city, a court for the trial of any action or special proceeding, of which
he has jurisdiction, brought before him. He must hear, try, and de-
termine the same, according to law and equity; and for that pur-
pose, where special provision is not otherwise made by law, the court

is vested with all the necessary powers possessed by the supreme
court.

{Id., § 1, amended by omitting, after ‘‘justice of the peace,”
“elected in any town of this State, or appointed for any city in
which special courts are not established by law,” and by substituting
the words, “or special proceeding, of which he has jurisdiction,” for
‘in the next section enumerated.” The omitted phrase is both
incorrect and unnecessary. The other amendment needs no explana-
tion. |

§ 2869. An action must be brought before a justice of a town
or city wherein one of the parties resides, or a justice of an adjoining
town or city in the same county, except in one of the following
cases :

1. Where the defendant has absconded from his residence, it may
be brought before a justice of the town or city in which the defend-
ant, or a portion of his property, is at the time of the commencement
of the action.

2. Where the plaintiff is not a resident of the county, or if there
are two or more plaintiffs, where all are non-residents thereof, it may
be brought before a justice of the town or city, in which the plaintiff,
or either of the plaintiffs, or his attorney, is at the time of the com-
mencement of the action.

3. Where the defendant is a non-resident of the county, it may be
brought before a justice of the town or city, in which he is at the
time of the commencement of the action.

4. Where it is specially prescribed by law, that a particular action
may be brought before a justice of the town, city, county, or district,

where an offence was committed, or where property is found.
, 7

TITLE 1.

Justices
to hold |
courts ;
general
powers.

In what
town, etc.,
action
must be
brought.
8§ 2870-2871. GENERAL POWERS. [CODE CIV. PROC.

runt A defendant designated in section 2879, section 2880, or section

2881 of this act, is deemed, for the purposes of this section, a resi-
dent of the town or city where the person, to whom a copy of the
summons is delivered, resides.

[Id., §§ 8 and 9, consolidated and amended, in accordance with the
construction given to § 9,in Hunter v. Burtis,10 Wend., 358, and
Onderdonk v. Ranlett, 3 Hill, 323; also by inserting in subd. 2, the

words, “or his attorney ;” and by adding subd. 4. See L. 1873, ch.
43, in appendix, § 2861, subd. 3, § 2862, and § 2919, post.]

fa. S 2870. A justice of the peace has power to punish, for a crimi-
nal contempt, a person guilty of either of the following acts:

1. Disorderly, contemptuous, or insolent behavior towards him,
while engaged in the trial of an action, the rendering of a judgment,
or any other judicial proceeding ; where such behavior directly tends
to interrupt the proceedings, or to impair the respect due to his au-
thority.

2. Breach of the peace, noise, or other disturbance, directly tend-
ing to interrupt his official proceedings.

3. Resistance wilfully offered, in his presence, to the execution of
his lawful mandate.

He has not power to punish, for a criminal contempt, in any other
case.

[2 B.S., 273, Part 3, ch. 2, tit. 4, § 274 (3 R. S., Sthed., 460 ; 2 Edm.,
281), amended by inserting in subd. 1 and 2 the word, “directly,”
so as to make the section conform to the similar provision, relating to
courts of record, in § 8. The word, “mandate,” is defined in § 3348,
subd. 2. The rulings in Rutherford v. Holmes, 66 N. Y., 368, cited
also in the note to § 3001, post, are applicable to this section, as
well as to the section of the R. 8.]

§ 2871. Punishment for a contempt, specified in the last sec-
tion, may be by sine not exceeding twenty-five dollars, or by impris-
onment in the county jail not exceeding five days, or both, in the dis-

4
Id.; how
punished.

cretion of the justice. Where a person is committed to prison for
the non-payment of such a fine, he must be discharged at the expi-
ration of ten days; but where he is also committed for a definite
iime, the ten days must be computed from the expiration of the
definite time.

[Id., § 275, amended by adding the last clause. |
8
CHAP. XIX. | GENERAL POWERS. §§ 2872-2875.

TITLE1.
Offender

for a contempt, until an opportunity has been given him to be heard en

§ 2872. A person shall not be punished by a justice of the peace

in his defence. And, for that purpose, the justice must issue a
warrant, directed, generally, to any constable of the county, requiring
the constable to bring the offender before him.

[Id., § 276, amended by the insertion of the words, “directed,
generally, to any constable of the county.”]

§ 2873. A justice, who convicts a person of a contempt, must, Record of
convic-

within ten days after the conviction, make up, subscribe, and file in to.
the county clerk’s office, a record thereof, stating therein the particu-

lar circumstances of the offence, and the punishment awarded by
him upon the conviction.

[Id., § 277, amended by condensing its language, but with no ma-
terial change, except the substitution of the words, ‘‘ the conviction,”
for “its date,” and the clause, “punishment awarded by him
upon the conviction ”, for “ judgment rendered thereon,” ]

§ 2874. A warrant of commitment fora contempt must set forth Requisites
of commit.

the particular circumstances of the offence; otherwise it is void. ment.
[Id., § 278.]

§ 2875. An officer, who collects or receives a fine, imposed by a Fine to be
paid to

justice of the peace for a contempt, must, within ten days there- overseer
dd or super-

after, pay the money, for the benefit of the poor, to the overseer or ranteae

superintendent of the poor of the town, city, or district, wherein ie
the fine was imposed ; or, where there is no such officer, to the officer
or officers performing corresponding functions under another name ;
unless the board of supervisors has directed the payment of fines
and penalties to the supervisor of the town, in a case where it is

authorized by law so to do.

[New. There are several local statutes for the support of the poor,
whereby certain officers, whose official titles and territorial juris-
diction vary considerably in different localities, are charged with
the duties which elsewhere devolve upon the overseer or superintend-
ent of the poor. This section is so framed as to provide for the pay-
ment of fines to such local officers, where they have been created.]

[2] 9
§ 2876.

TITLE 2.

Action ;
how com-
menced.

COMMENCEMENT OF ACTION. [cop crv. proc.

TITLE II.

Commencement of action ; appearance of parties; provisional
remedies.

ARTICLE 1. Commencement of action.
2. Appearance of parties.

. Order of arrest.

. Attachment of property.

. Replevin,

ot B® co

e

ARTICLE FIRST.
COMMENCEMENT OF ACTION.

Src. 2876. Action ; how commenced
2877. Contents of summons.
2878. Service of summons.
2879. Id.; upon a corporation.
2880. Id.; special provision relating to railroad corporations.
2881. Id.; relating to express companies.
2882. Last two sections qualified.
2883. Second and third summons; effect thereof.
2884. Where name of defendant is unknown.
2885. Return of summons.

§ 2876. An action is commenced before a justice of the peace,
either by the voluntary appearance and joinder of issue by the
parties, or by the service of a summons.

[2 R. §., 227, Part 3, ch. 2, tit. 4,§ 11 (3 BR. 8., 5th ed., 428; 2
Edm., 243), amended by substituting ‘‘ commenced ” for “instituted ;”
“ joinder of issue by ” for “agreement of,” and “the service of a sum-
mons” for ‘‘ process ;” and by omitting at the end, ‘‘ when by process,
it shall be either a summons, a warrant, or an attachment.” Under the
statutes superseded by this chapter, there were no less than six differ-
ent kinds of process for the commencement of an action in a justice’s
court, to wit: long summons, short summons, long attachment, short
attachment, warrant, and summons in an action to recover the posses-
sion of personal property. This diversity has been a fruitful source of
confusion and litigation ; to remove which this section prescribesa
summons as the only process by which an action can be commenced, «
leaving the replevin of the property claimed, the arrest of the defend-
ant, or the attachment of his property, to be obtained by a separate
proceeding, as in courts of record. The other amendments supersede
sections 12 and 13 of the R. 8.; the only substantial change being,
that the action 1s to be deemed commenced at the time of the service

10
CHAP. XIX. ] SUMMONS. 5 S§ 2877-2878.
of the summons, as in courts of record. It has been provided, in en
§ 400, that the delivery of the summons to the proper officer shall be

deemed equivalent to the commencement of an action, for the purpose

of saving the statute of limitations. The insertion of the words,
“joinder of issue,” is in conformity with the decision in Lester v.

Crary, 1 Denio, 81.](*) :

§ 2877. The summons must be directed, generally, to any con- Contents

of sum-
stable of the county where the justice resides ; and it must command "°"*

him to summon the defendant to appear before the justice, at a place
specified therein, to answer the complaint of the plaintiff in a civil
action. Where the summons is accompanied with an order to arrest
the defendant, it must be made returnable immediately upon the
arrest of the defendant, within twelve days after the day when it
was issued; in every other case, it must-be returnable at a time
therein specified, not less than six nor more than twelve days after
the day when it was issued.

[Id., § 14, amended by omitting in the first sentence before the
word ‘‘ place,’ the words “time and;” and before the words, “to
answer,” the phrase, ‘‘not less than six nor more than twelve days
from the date of the same”; also by substituting “the complaint of
the plaintiff in a civil action” for “the plaintiff in the plea, in the
same summons to be mentioned,” in accordance with the decision in
Smith v. Joyce, 12 Barb., 21; Reno v. Pinder, 20 N. Y., 298, and
other cases ; and by the addition of the last sentence. The general
repealing act of 1880, also abolishes the provisions of the non-imprison-
ment act for a short summons or a short attachment, where one of the
parties is a non-resident. L. 1831, ch. 300, §§ 32, 33 (3 RB. S., 5th
ed., 462; 4 Edm. 472). Where a defendant is arrested, justice to
him, as well as to the plaintiff, requires that the summons should be
returnable immediately; but the commissioners thought, and most
persons who are familiar with the proceedings in justices’ courts, wil’
agree with them, that the provisions for short process, where the
action was commenced in the ordinary way, had survived their utility,
since the facilities of communication between different portions of the
State have become so great. It very rarely happens, that an action is
tried upon the return day of a short summons. The former multi-
plicity of forms of process was, as already stated, an evil, which has
been remedied by abolishing all those forms, which could be dispensed
with. For general provisions, as to the form of summons and other
mandates, see § 22 and § 3135, post. ](°)

§ 2878. Personal service of the summons must be made by de- Service of
livering a copy thereof to the defendant ; except where it is specially
prescribed in this chapter that personal service may be made by
delivering a copy to another person. Where service of a summons

is personal, it inust be made at least six days before the time of ap-
11

 

(a) Section 400 is on page 184. (b) Section 22 is on page 160.
§§ 2879-2880. SUMMONS, ‘[copE cIV. PRoc.

TITLE 2.

Id.; upon
a corpora-
tion,

Td.; special
provision
relating to
railroad , '
corpora-
tions.

pearance specified therein ; except where it is accompanied with an
order of arrest.

[Substituted for id., § 15, as amended by L. 1876, ch. 277. In this
section the first exception has been extended to cover cases like those
under §§ 2880-2882, post; the provisions for a service by leaving a copy
at the defendant’s last place of abode have been omitted, and the last
exception has been added. Service by copy had generally become
an idle ceremony, since the repeal of the provision of the R. S., allow-
ing a warrant to be issued upon the return of a summons served by
copy ; except, perhaps, that it might occasionally have saved the
statute of limitations, within the ruling of Cornell v. Moulton, 3 Denio,
12. The provisions of § 2883, post, render it unnecessary to preserve
that mode of service for such a purpose. As a service, either per-
sonally, or in one of the modes provided by special statutes as a
substitute for personal service, is ordinarily necessary before a
judgment can be taken, the mode of service by leaving a copy
has been abrogated. Under §§ 2877 and 2898, post, an order of
arrest may be executed at any time before the return day of the
summons; and, for obvious reasons, it is not only proper, but
necessary, that the same rule should govern the service of the sum-
mons. No special provision is necessary for the service of a summons
accompanied with a warrant of attachment, or a requisition in repievin;
because it is provided, in articles 4 and 5, that the warrant or requisi-
tion must be executed six days before the return day. Post, §§ 2910
and 2922. Where it is not otherwise specially prescribed by law, as
is the case in this section, time is to be reckoned in accordance with
§ 788, which is made applicable by § 3347, subd. 6, as is also § 787
and § 826, though the latter sections will probably be of no use at
present in a justice’s court. ](*)

§ 2879. Where the defendant to be served is a corporation, the
summons may be personally served upon it, by delivering a copy
thereof to an officer or person, to whom a copy of the summons in
an action, brought against the corporation in the supreme court,
might be delivered, as prescribed in sections 431 and 482 of this
act; or, to any director or trustee of the corporation, by whatever
official title he is called.(°)

[Co. Proc., § 64, last clause of subd. 15, and L. 1847, ch. 470, § 45,
last clause (4 Edm., 589), consolidated, and verbally amended. The
latter provision was not repealed by the Code of Procedure. Wheeler
vy. N.Y. and H. R. RB. Co., 24 Barb., 414. It is, however, not to be
found in the 5th edition of the R. 8. See § 2869, subd. 4.]

§ 2880. Where the defendant to be served is a domestic railroad
corporation, and no officer thereof resides in the county, to whom a

copy of the summons may be delivered, as prescribed in the Iast
12

 

(a) Sections 787 and _788 are on page 210; section 826 on page 214; and section 3347 on page 360.
(b) Sections 431 and 432 are on page 194.
CHAP. XIx. | SUMMONS. $$ 2881-2882.

section, it may be personally served, by delivering a copy thereof to
a local superintendent of repairs, freight agent, agent to sell tickets,
or station keeper of the corporation, residing in the county; unless,
at least thirty days before it was issued, the corporation had filed, in
the office of the clerk of the county, a written instrument, designat-
ing a person residing in the county, upon whom process to be issued
by a justice of the peace against it may be served; in which case,
the summons may be personally served by delivering a copy to the
person so designated.

[L. 1854, ch. 282, $$ 14 and 15 (2 R. S., 5th ed., 697 ; 3 Edm., 645),
consolidated, and amended verbally. The clause making a certified
copy of the designation evidence is covered by § 933. It was
held, in Wheeler v. N. Y. and H. R. R. Co., 24 Barb., 414, that the
return of the constable is evidence, not only of the official character
of the person served, but also of the facts which justify such service.
See § 2869, subd. 4, ante.](*)

§ 2881. Where the defendant to be served is a corporation, asso-
ciation, partnership, or person, doing business in the State as an express
company, and no person resides in the county to whom a copy of
the summons may be delivered, as prescribed in the foregoing sec-
tions of this article, it may be personally served, by delivering a copy
thereof to any local or general agent, agent to receive freight or
parcels, route agent, or messenger of the defendant, residing in the
county ; unless, at least thirty days before it was issued, the defendant
had filed, in the office of the clerk of the county, a written instru-
ment, designating a person residing in the county, upon whom pro-
cess to be issued by a justice of the peace against the defendant, may
be served; in which case, the summons may be personally served
by delivering a copy thereof to the person so designated.

[L. 1864, ch. 411, §§ 1 and 2 (6 Edm., 286), consolidated, and
amended so as to correspond to the last section. See also § 2869,
subd. 4, ante. |

§ 2882. Where a person has been designated, as prescribed in
either of the last two sections, and the designation has been revoked,
or it appears, by affidavit or the return of the constable, to whom a
summons has been duly delivered for service, that the person desig-
nated is dead, or has ceased to reside within the county; or that he

cannot, after due diligence, be found within the county, so as to de-
13

 

(a) Section 933 is on page 235.

ART. 1.

Id.; relat-
ing to ex-
press com.
panies.

Last two
sections
qualified.
§§ 2883-2884. SUMMONS. [CoDE CIV. PROG.

TITLE 2,

Second
and third
summons;
effect
thereof.

Where
name of
defendant
is un-
known.

liver a copy of the summons to him; the original summons, or the
second or third summons, issued as prescribed in the next. section,
may be served as if the designation had not been made. Such a
designation may be revoked by a writing, executed and filed in like
manner as required for the purpose of making the designation.

[New. Prepared in order to supply deficiencies in the former
statute. |

§ 2883. Whereit appears, by the return of the constable, to whom
a summons has been duly delivered for service, that it was not served
for any cause, a second summons may be issued by the same justice,
in the same action, within twenty days after the first summons was
issued ; and, upon the like return thereof, a third summons may be
issued, within twenty days after the second was issued. The second
or the third summons, as the case may be, relates back to the time
when the first summons was issued; and, with respect to all pro-
ceedings before actual service, the service thereof has the same effect,
as if the first summons had been seasonably served. For the
purpose of issuing a new summons, as prescribed in this section, a
previous summons may be returned upon the sixth, or any subsequent
day, before the return day thereof.

{New. Some such provision will frequently be necessary, in order
to prevent an inconvenience in the working of several of the amend-
ments to the former legislation, effected in this chapter. One case,
where this section will be useful, is suggested in the note to § 2878,
ante ; but there are many others. For instance, without such a pro-
vision, the action will be discontinued, and new papers must be pre-
pared, where an order of arrest, an attachment, or a requisition in
replevin accompanies a summons, and there is a failure to serve the
summons within the time allowed for that purpose. On the other hand,
it is easy to see, that a power to revive indefinitely an abortive action,
will be open to abuse. We endeavored so to frame the section, as to
avoid both these dangers. |

§ 2884. Where the plaintiff is ignorant of the name, or part of

the name of a defendant, that defendant may be designated in the
summons, and in any other process or proceeding in the action, by
a fictitious name, or by so much of his name as is known, adding a
description, identifying the person intended. The person so desig-
nated must thereupon be regarded as a defendant in the action, and as

sufficiently described therein for all purposes. When his name, or
14
CHAP. XIX. ] APPEARANCH. §§ 2885-2886.

the remainder of his name, becomes known, the justice before
whom the action is pending, must amend the proceedings already
taken by the insertion of the true or full name, in place of the
fictitious name, or part of a name; and all subsequent proceedings
must be taken under the name so inserted.

[2 RB. 8., 274, Part 3, ch. 2, tit. 4, § 282 (3 R.S., Sth ed., 461; 2
Edm., 282), amended so as to correspond to the provisions of this act,
which relate to the same subject in the principal courts of record. |

§ 2885. A constable, who serves a summons, must, at or before
the time when the same is returnable, make and deliver to the justice
a written return thereof, under his hand, stating the time when, and
the manner in which, he served it. A constable who fails seasonably
to serve a summons, delivered to him for service, must make a writ-
ten return thereof under his hand, stating that it was not served,
and the reason why he failed to serve it,

[2 R. S., 228, Part 3, ch. 2, tit. 4, § 16 (BR. S., Sth ed. 428; 2
Edm., 244), amended by inserting the clause, “at or before the time
when the same is returnable,” by not requiring the return to be upon
the summons ; and by adding the last sentence. For the rule as to a
defective return, see Sperry v. Reynolds, 65 N. Y., 179.]

ARTICLE SECOND.

APPEARANCE OF PARTIES.

Szc. 2886. Parties may appear in person or by attorney.
2887. Guardian ad litem for infant plaintiff.
2888. Id.; for infant defendant.
2889. When constable, etc., may not act as attorney.
2890. Authority of attorney ; how proved.
2891. Plaintiff to prove his case.
2892. Defendant may offer to compromise ; proceedings thereupon.
2893. Justice to wait one hour.

§ 2886. A party to an action before a justice of the peace, who
is of full age, may appear and prosecute or defend the same, in person
or by attorney, at his election, unless he has been judicially declared
to be incompetent to manage his affairs.

[2 R. 8., 232, Part 3, ch. 2, tit. 4, § 39, and first clause of § 41 (3
R.8., 5th ed., 482 ; 2 Edm., 248), consolidated, and amended so as
to correspond to the provisions of this act, which relate to the same
subject in the principal courts of record. See 42 N. Y. 26, and 65
N. Y., 180. ]

15

ART. 2,

Return of
summons.

Parties
may ap-
pear in
person
or by ate
torney.
§§ 2887-2889. APPEARANCE. [CODE CIV. PROC.

TITLE 2. ones ; : .
Guardian § 2887. Before a summons is issued in behalf of, or an issue is

ad litem

forinfant joined without summons by, an infant plaintiff, the justice must
plaintiff. ‘

appoint a competent and responsible person, nominated by the
plaintiff or his general guardian, to appear as his guardian for
the purpose of the action. The written consent of the person
so appointed must be filed with the justice, before his appointment.
The guardian so appointed is responsible for the costs.

[Id., § 40, amended by the substitution of a guardian for a next
friend, and the words, “competent and responsible,” for ‘ suitable,”
to correspond to the provisions of this act, which relate to the same
subject in the principal courts of record. The original said, that an
issue joined by an infant plaintiff, without process, should not be
“heard,” till a next friend was appointed. If that meant that the in-
fant might join issue without a next friend or guardian, the statute
ought to have been changed before. No such construction is possible
under this section. The words, ‘or his general guardian,” have also
been inserted, to provide for the case where the plaintiff is not pres-
ent, or is too young to name a guardian; and a clause has been added,
expressly requiring the guardian’s written consent to be filed before
the appointment, in accordance with the supposed meaning of the
original. ]

fa.; for § 2888. After the service and return of a summons against an

defendant. infant defendant, no other proceeding shall be taken in the action,
until a person has been appointed to appear as his guardian for the
purpose of the action. Upon the nomination of the defendant, the
justice must appoint a proper person for that purpose. If the
defendant does not appear upon the return of the summons, or if
he neglects or refuses to nominate, the justice may, on the application
of the plaintiff, appoint any proper person as his guardian. The
written consent of the person, so appointed, must be filed with the
justice before his appointment. The guardian so appointed is not
responsible for any costs.

[1d., §§ 42 and 43, consolidated, aad amended by expressly requiring
the consent to be filed before appointment made.

Whencon- § 2889. Subject to the provisions of sections 63 and 64 of this
ptaetss act, any person, other than the constable who served the summons

ti f . . .
omomey or the venire, or the law partner or clerk of the justice, may be the

attorney for a party to an action before a justice of the peace.(*)
[Id., § 44, as amended by L. 1864, ch. 421 (6 Edm., 295); further
amended by adding the first clause, which refers to the prohibition
16

(a) Sections 68 and 64 are on page 165,
CHAP. xIX.] APPEARANCE; OFFER OF JUDGMENT.  §§ 2890-2892.

against any but an admitted attorney practicing in New-York or Kings
county, and by omitting the provision allowing the partner or clerk of
the justice, or the constable who served the summons or venire, to act
as attorney in any proceeding in the action, except as an advocate
upon the trial. The latter amendment is in accordance with the prin-
ciple of L. 1847, ch. 470, §§ 52 and 53 (3 B.S. 5th ed., 466 ; 4 Hdm.,
590). It was held in Moz v. Jackson, 8 Barb., 355, that section 52 did
not apply to justices’ courts ; but the evil, which that provision was
intended to remedy, was quite as great in those courts, as in courts of
record, and it was thought that too great care could not be taken to
purge them from even the appearance of evil. The reasons which
suggested the amendment to the R. 8., made by L. 1864, ch. 421, are
equally applicable to this amendment of the act of 1864; since the
obtaining of an adjournment by a defendant is often as beneficial to
him, as the obtaining of a nonsuit. ]

§ 2890. The attorney’s authority may be conferred orally or in
writing; but the justice shall not suffer a person to appear as an
attorney, unless his authority is admitted by the adverse party, or
proved by the affidavit or oral testimony of himself or another.

ee § 45. The original section did not permit a justice to render
judgment against a defendant upon whom the summons was not
served, upon the appearance of a person as his attorney, unless the
attorney’s authority was proved, although the plaintiff did not require
proof. Sperry v. Reynolds, 65 N. Y., 179. The ruling is equally ap-
plicable to this section. ]

§ 2891. If a defendant fails to appear and answer, the plaintiff
cannot recover without proving his case.

[Co. Proc., § 64, subd. 8.]

§ 2892. Except in an action to recover a chattel, the defendant
may, upon the return of the summons and before answering, file
with the justice a written offer to allow judgment to be taken against
him for a sum therein specified, with costs. If there are two or
more defendants, and the action can be severed, a like offer may be
made by one or more of the defendants, against whom a separate
judgment may be taken. If the plaintiff thereupon, before taking
any other proceeding in the action, files with the justice a written
acceptance of the offer, the justice must render judgment accord-
ingly. If an acceptance is not filed, the offer cannot be given in
evidence upon the trial; but, if the plaintiff fails to obtain a more
favorable judgment, he cannot recover costs from the time of the

offer, and must pay the defendant’s costs from that time.
[3] 17

ART, 2.

Authority .
of attor-
ney; how
proved.

Plaintiff to
prove his
case.

Defendant
may offer
to com-
promise;
proceed-
ings there-
upon.
8 2893.

TITLE 2.

Justice to
wait one
hour.

Ad Ld $0 mw
mreol

Ar orl vs,
SAW RW.
~ Garb. bo.

ORDER OF ARREST. [CoDE crv. PROC.

[Co. Proc., § 64, part of subd. 15, amended by adding the excep-
tion ; by requiring the offer to be filed when made ; by adding the sec-
ond sentence ; by not allowing the offer to be given in evidence ; by
substituting the words, ‘‘ a more favorable judgment,” for the clause,
“judgment fora greater amount, exclusive of costs, than has beén
specified in the offer” ; by inserting “from the time of the offer” ;
and by substituting the last three words for “‘ accruing subsequent to
the offer”. All these changes have been made so as to remove some
obscurities, and conform the section to the language of the provisions
of this act relating to the same subject in the principal courts of record. ]

§ 2893. Upon the return of a summons duly served, the justice
must wait one hour, after the time specified therein for its return,
unless the parties sooner appear.

[2 R. &., 233, Part 3, ch. 2, tit.4, § 46 (3 R. S., 5th ed., 433; 2 Edm.,
249), amended by substituting “duly ” for “personally.” See §§ 2910,
2912 and 2934, post.]

AKTICLE THIRD.

ORDER OF ARREST.

PretiminaARy Note.—The following article effects substantial
changes, with respect to the arrest of a defendant, in an action brought
in ajustice’s court. They were imperatively demanded by the former
anomalous condition of the statutes ; and by the very great alteration,
which has taken place in public sentiment, since the enactment of the
Revised Statutes, with regard to the causes for which a defendant in a
civil action should be arrested, either before or after judgment. The
theory upon which the provisions of the R.8., and of the non-impris-
onment act, seemed to have been based, was that the issuing of a war-
rant should depend, not so much upon the character of the act, with
which the defendant is charged, as upon the fact of the non-residence
of a party, who might suffer inconvenience, if the trial of the action
should be delayed, until the lapse of the usual time between the service
and the return of an ordinary summons. Indeed, the effect of the
former statutes, was, not to confer upon the plaintiff the privilege of
obtaining a warrant, which he might waive, if he was satisfied with the
pecuniary responsibility of the defendant ; but to require him to prose-
cute a non-resident defendant, in an action for tort, by warrant. Of
course, such a theory is irreconcilable with the principles, upon which
all the provisions of this act, relating to arrests in civil actions, have
been framed; and, indeed, with any theory which obtains at the present
day in the State. In determining what alterations it was expedient to
propose in the former statutes on this subject, the first question to be
considered related to the character of the act charged upon the de-

18
CHAP. XIX. | ORDER OF ARREST.

fendant, which should authorize his arrest. By the former statute he
might have been arrested in any action, not “arising upon contract
express or implied ” ; and also in an action sounding in contract (under
the common law forms of pleading), where it was brought to recover
money collected by a public officer, or for official misconduct or neglect
of duty, or for damages for misconduct or neglect in any professional
employment. L. 1831, ch. 300, §§ 30, 31 (3 R.S., 5th ed., 462 ; 4 Edm.,
472). Those actions comprise, in substance, all those specified in the
provisions of this act regulating arrests dependent upon the cause of
action (§ 549), of which a justice of the peace has jurisdiction ; and
the commissioners were clearly of the opinion that the rule should be
the same with respect to this question, asin acourt of record; espe-
cially since a plaintiff, whose demand amountsjto any sum between $50
and $200, has now with respect to most of the causes of action enu-
merated, an absolute election in which court to sue. Consequently no
substantial changes were made in the enumeration of the causes of
action which authorize the granting of an order of arrest.

The next question was, whether the right to arrest, pending such
an action, should be absolute ; or whether the plaintiff should be re-
quired to show that special circumstances exist, which render it ne-
cessary to arrest thedefendant before judgment. In a court of record,
an order of arrest may be obtained at any time before judgment,
whenever an execution against the person can issue upon the judg-
ment; and, at first sight, it would seem as if the same rule ought to
obtain in justices’ courts. But we thought, after much reflection,
that’sound policy required a more limited rule for the latter tribunals.
Tn courts of record, actions are not commonly brought without some
deliberation, as the plaintiff becomes responsible for a considerable
amount of costs; the damages claimed are considerable ; there 1s the
intervention of an attorney, who would ordinarily discourage an un-
necessary or malicious arrest; and the order is granted by an impar-
tial and experienced judge, who, in a trifling or doubtful case, may
fix the bail at so small a sum as to render the arrest practically
idle. But in justices’ courts, actions are oftener brought hastily, in
the heat of passion, and for the mere purpose of annoyance ; the plaint-
iff incurs but little responsibility for costs ; the damages claimed are
often trifling ; and, generally, there is no intervention of an attorney,
For these reasons, and also because the granting of an order affects
the time when the summons is returnable, the commissioners were
of opinion, that the right to arrest the defendant should be substan-
tially restricted to the same cases, where a warrant could be issued,
under the former statute ; that is, where, in consequence of non-resi-
dence, or some other fact shown, there appears to be a special neces-
sity for it. It would be intolerable, if, for every trifling and, perhaps,
involuntary trespass, by cattle or otherwise, a defendant was lable

19

§ 28094.

ART, 3.
§ 2894.

TITLE 2,

Order of
arrest ; in
what cases
it may be
granted.

ORDER OF ARREST. [CODE CIV. PROC.

to be arrested, a3 the instance of an irritable or malicious neighbor ;
dragged before a justice ; and compelled at once to try the cause or
to give bail for his subsequent appearance.

In this article, the order of arrest has been made a strictly provi-
sional remedy ; and a summons has been substituted for a warrant, as
the process for the commencement of the action. This leaves it op-
tional with the plaintiff to obtain an arrest, in cases where he is enti-
tled to it, and enables his right to this process to be determined,
independently of the decision upon the merits of the action. As the
time between the issuing and the return of an ordinary summons is
short, no provision has been made for the obtaining of an order, except
simultaneously with the summons ; and provision has been made in
§ 2901 for an application to vacate the order, either upon the defend-
ant’s being brought before the justice, or at any subsequent time
before judgment. The giving of bail by the defendant is provided for
in § 2963, post.

Src. 2894. Order of arrest; in what cases it may be granted.
2895. Id. ; in what actions. .
2896. Id.; upon what papers.
2897. Id. ; its contents.
2898. Duty of constable.
2899, Return. When plaintiff notified must appear.
2900. Constable to keep defendant in custody.
2901. Motion to discharge from arrest.
2902. Effect of discharging defendant.
2903. When plaintiff must prove extrinsic facts,
2904, Privilege from arrest.

§ 2894. At the time when the summons is issued, in an action
specified in the next section, the justice who issues the summons
must, upon the application of the plaintiff, and upon compliance by
him with the provisions of this article, grant an order for the arrest
of the defendant, in either of the following cases:

1. Where the defendant to be arrested is not a resident of the
county.

2. Where the plaintiff is nota resident of the county; or, if there
are two or more plaintiffs, where all are non-residents thereof.

3. Where it appears to the satisfaction of the justice, by the affida-
vit of the plaintiff or another person, that the defendant is about to
depart from the county, with intent not to return thereto.

But such an order cannot be granted, where the defendant, against
whom it is applied for, is a female.

20
CHAP. XIX. ] ORDER OF ARREST, §§ 2895-2896.
[2 R. S., 228, Part 3, ch. 2, title 4,817 (3 R. &., 5th ed, 429;2 A#™*

Edm., 244), amended by substituting the opening clause, for the
words, ‘* A justice shall, upon application, issue a warrant in the fol-
lowing cases,” by omitting from subd. 2 the provision for security to
be given by the plaintiff, which is covered by the general provision in
§ 2896, post, and adding thereto the last clause; by omitting subd. 4,
which allows a resident freeholder to be arrested, where it appears to
the justice that the plaintiff is in danger of losing his debt, unless a
warrant is granted ; and by adding the last paragraph, which is taken
from 2 R.8., 253, § 158 (3 KR. S., 5th ed., 449; 2 Edm., 270). Section
18 of the R. 8., allowing the justice to issue a summons or a warrant,
where the defendant is not a freeholder or a householder, or after the
return of a summons served by copy, has also been omitted ; because
the right to an arrest should not be within the discretion of the mag-
istrate; nor should an arrest be allowed, without cause shown therefor. |

§ 2895. An order of arrest shall not be granted, except where Id. in
the action is’ brought for one or more of the following causes: Hons:
1. To recover a fine or penalty.
2. To recover damages for a personal injury. of which a justice of
the peace has jurisdiction; an injury to property, including the
wrongful taking, detention, or conversion of personal property ; mis-
conduct or neglect in office, or in a professional employment ; fraud ;
or deceit. But this subdivision does not apply to a claim fur dam.
ages in an action to recover a chattel.
3. To recover for money received, or to recover a chattel ; where
it appears that the money was received, or that the chattel was em-
bezzled or fraudulently misapplied, by a public officer, or by an
attorney, solicitor, or counsellor, or by an officer or agent of a cor-
poration or banking association, in the course of his employment ;
or by a factor, agent, broker, or other person in a fiduciary capacity.

[Substituted for L. 1831, parts of §§ 30 and 31 (3 R. S., Sthed.,
462; 4 Edm., 472), and modelled upon the provisions of this act, re-
lating to the same subject in the principal courts of record. ‘The
reasons for the changes made in the former statute, are fully stated in
the preliminary note to this article. ]

§ 2896. Where it appears to the justice, by the aftidavit of the 14,; upon
plaintiff or another person, that a sufficient cause of action exists, papers.
against the defendant, and that the case is within the provisions of
the last two sections, he must grant the order of arrest. But before
granting it, he must require a written undertaking to the defendant,
on the part of the plaintiff, with one or more sureties, approved by

21
§§ 2897-2899, ORDER OF ARREST. [CODE CIV. PROC.

TITLE 2

Id.; its
contents.

Duty of

constable.

Return.
When
plaintiff
notifled
must ap-
pear.

the justice, to the effect that, if the defendant recovers judgment,
the plaintiff will pay all costs which may be awarded to the defend-
ant, and all damages which he may sustain by reason of the arrest,
not exceeding the sum specified in the undertaking, which must be
at least one hundred dollars.

[Substituted for 2 R. 8., 228, Part 3, ch. 2, title 4, last clause of
subd. 2 of § 1%, and §19 (3 RB. §., 5th ed, 429; 2 Edm., 244), and
modelled upon the provisions of this act, relating to the same subject
in courts of record. It seems eminently just, that the plaintiff should
give security in every case, where he procures the arrest of a defend-
ant, as well in justices’ courts as in courts of record. Under the
former statute the plaintiff might, unless he was a non-resident, pro-
cure a warrant without giving security. The provisions of §§ 728,
729, 730 and 810-816 of this act, apply to an affidavit made or an
undertaking given in an action or procecding in this court. See §
3347, subd. 6-(0)

§ 2897. The order must be subscribed by the justice, and in-
dorsed upon or attached to the summons. It must briefly recite the
ground of arrest; and it must direct the constable, who serves the
summons, to arrest the defendant ; to bring him forthwith before the
justice; and to notify the plaintiff of the arrest, if he can do so
with reasonable diligence.

[Id., § 20, stating the contents of a warrant, amended in accordance
with the changes proposed by the foregoing sections of this article. |

§ 2898. The constable must, at the time of serving the summons,
execute the order of arrest, by arresting the defendant, and taking
him forthwith before the justice. If the justice is absent, or unabie
to try the action, the constable must forthwith take the defendant
before another justice of the same'town or city; who must take
cognizance of the action, and proceed therein, as if the summons
had been issued, and the order of arrest had been granted, by him.

[Id., § 21, amended in like manner, and by omitting the provision,
relating to proceedings where the justice is a material witness, which
is taken into § 3151, post.]

§ 2899. The constable, executing the order of arrest, must forth-
with deliver to the justice the order, and a written return thereto,
under his hand, stating the manner in which he has executed it, and
either that he has notified the plaintiff, or that he could not do

80, with reasonable diligence. If he returns that he has notified the
29

 

(a) For the sections referred to see pp. 208, 209 ; 211—213; 360.
CHAP. XIX.] ORDER OF ARREST. 8§ 2900-2902.

plaintiff, the latter must appear within one hour after the defendant
is brought before the justice; otherwise judgment of nonsuit must
be rendered against him.

[Id., § 22, amended by requiring the return to be made forthwith,
and “under his hand; ” by inserting the words, “ with reasonable dili-

gence,” in accordance with § 2897, ante; and by adding the last sen-
tence. |

§ 2900. The constable executing the order, or another consta-
ble, by direction of the justice, must keep the defendant in custody,
until he is discharged by the order of the justice, or judgment is
rendered in his favor; but the detention shall not, in any case, ex-
ceed twelve hours froin the time when the defendant is brought be-
fore the justice; unless, within that time, a venire is issued, or the
trial of the action is commenced, or unless either is delayed with the
express assent of the defendant.

[Id., § 25, amended by inserting the clauses, “ or another constable,
by direction of the justice,” and “or judgment is rendered in his fa-
vor.” There may be good reasons, why the defendant should be
placed in charge of another constable; as, for instance, where the lat-
ter is better able to accommodate him, or the first constable is needed
to serve the venire. |

§ 2901. A defendant, arrested as prescribed in this article, may,
without notice, upon the appearance of the plaintiff before the jus-
tice, or at any time afterwards before judgment, upon two days’
notice given personally to the plaintiff, or to his agent or attorney
who appeared for him before the justice, apply to the justice for an
order, discharging him from the arrest. The application may be
founded upon the papers upon which the order of arrest was granted,
and upon the complaint, if it has been made. The justice must
grant the application, where it appears that the case is not within
the provisions of sections 2894 and 2895 of this act. The justice
must also, upon the defendant’s application, grant an order discharg-
ing him from arrest, if the plaintiff fails to take out, from the jus-
tice, an execution upon a judgment in his favor, before the expira-
tion of one hour afier he is entitled thereto.

[New; conforming generally to the provisions of this act, regulating
similar proceedings in courts of record. |

§ 2902. The discharge of the defendant from arrest, before
23

ART. 3.

Constable
to keep de-
fendant in
custody.

Motion to
discharge
from ar-
rest.

Effect of
discharg-
§§ 2903-2904. ATTACHMENT OF PROPERTY. [copE CIv. PROC.

TITLE 2.
ing de-
fendant.

judgment, as prescribed in the last section, or in section 2963 of this
act, does not affect the jurisdiction of the justice over the action,
which must proceed, as if it had been commenced in the ordinary
manner. His discharge from arrest, after judgment, as prescribed in
the last section, does not affect the execution.

[New; inserted in consequence of the substitution of an order of
arrest, as a provisional remedy, for a warrant as process for the com-
mencement of an action. The general theory of the section is that
the discharge from arrest does not affect the right of the plaintiff to
take out execution against the defendant’s person, as if he had not
been discharged. |

When, § 2903. Where an order of arrest has been granted and exe-
plaintifg

must preve cuted, in a case specified in subdivision third of section 2595 of this

facts, :
ah act, the plaintiff cannot recover upon a default, and the defendant is

entitled to judgment upon a trial, unless the plaintiff establishes all
the matters of fact, which are required, by that subdivision, to entitle

him to an order of arrest.
[New.]

Privilege § 2904. This article does not abridge or otherwise affect a privi-

rest, : : :
lege from arrest given by law, or a right of action for the breach

thereof. A privileged person is entitled to be discharged from arrest,
by the order of the justice before whom he is brought, upon proof,
by affidavit, of the facts entitling him to a discharge ; or he may apply
for and obtain an order for his discharge, as prescribed in section
564 of this act.()

[New. ]

ARTICLE FOURTH.

ATTACHMENT OF PROPERTY.

PRELIMINARY Note.—The following article is a substitute for
the provisions of the Revised Statutes, relating to attachments in
justices’ courts (3 R.S., Sth ed., 430-432 ; 2 Edm., 245-248), as modi-
fied by the non-imprisonment act, L. 1831, ch. 300 (3 R.8., 5th ed.
462; 4 Edm., 465). The principal changes made were those neces-
sary to assimilate the proceedings, as far as practicable, to corre-
sponding proceedings in the supreme court and other principal
courts of record. In framing this article, however, as well as other
articles of this chapter, the commissioners found it impracticable,

24

 

(a) Section 564is on page 206.
CHAP. XIX. | ATTACHMENT OF PROPERTY.

owing to the nature of and constitution of justices’ courts, to follow
absolutely the provisions regulating the proceedings in the higher
courts. But a considerable advance was made in that direction ;
and, in framing this and other articles of this chapter, we used,
whenever it was practicable, the language employed in former
chapters of this work relating to kindred subjects ; so that the
decisions, in cases arising in courts of record, will be generally ap-
plicable to cases originating in these courts.

The notes to the sections will sufficiently explain the different
ameudments proposed, except one of considerable importance, to
which attention is called in this place.

By the Revised Statutes, an attachment could be issued by a justice
of the peace, only upon proof that the defendant had departed, or
was about to depart from the county of his residence, with intent to
defraud his creditors, or kept himself concealed with the like intent.
2R.8., 230, Part 3, ch. 2, tit. 4, § 26 (8 RS, 5th ed, 430; 2 Edm,
245). Section 34 of the non-imprisonment act provided, that an ac-
tion on contract might be commenced by attachment, ‘‘ whenever it
shall satisfactorily appear to said justice, that the defendant is about
to remove from the county any of his property with intent to defraud
his creditors, or has assigned, disposed of, secreted, or is about to as-
sign, dispose of or secrete, any of his property with the like intent,
whether such defendant be a resident of the State or not.” (3 B.S,
5th ed., 462; 4Hdm.,473.) Section 31 of the same act forbade the is-
suing of a warrant in an action arising upon contract, except in a few
infrequent cases ; and § 33 provided that where, by the provisions of §
31, a warrant could not issue, and the defendant resided out of the
county he should be proceeded against by summons or attachment, re-

turnable not less than two nor more than four days from the date ,

thereof. Upon comparing the language of the latter section with that
of § 34, and also with § 43, which makes the provisions of the Revised
Statutes applicable to the act of 1831, it seemed, at least, doubtful,
whether, by § 33, the legislature intended any thing more than to re-
quire the plaintiff, in case the facts warranted an attachment against a
non-resident, to proceed against him by an attachment returnable in not
less than two nor more than four days (instead of not less than six nor
more than twelve days, as required by the R, §.), in order that the
defendant might have a speedy trial. Such was the construction
given to the section by CowgEn, J., in Ackerman v. Finck, 15 Wend.,
652 ; although he afterward retracted his opinion in Bates v. Relyea,
23 Wend., 336, basing his retraction entirely upon the principle of
stare decisis, and yielding to the authority of Clark v. Luce, 15 Wend.,
479; wherein it was held, not only that a short attachment might
issue of course, where che defendant was a non-resident, but that it
was not necessary for the plaintiff to show the fact of such non-resi-

[4] 25

§ 2905.

ART. 4,
§ 2905,

 

TITLE 2.

ATTACHMENT OF PROPERTY.  [copz crv. proc.

dence, or to give a bond. In the latter respect, the case has been
overruled by Yaylor v. Heath, 4 Denio, 592; Bennett v. Brown, 4N.
Y. (4 Comst.), 254; and numerous other cases. But it has been
assumed, if not expressly decided, that the legislature intended, by the
non-imprisonment act of 1831, to authorize an attachment to be issued
against a non-resident defendant, without proof of any of the facts re-
quired by § 26 of the R.8., or § 34 of the act of 1831. Van Kirk v.
Wilds, 11 Barb., 520; Williams v. Barnaman, 19 Abb. Pr., 70; Bas-
com v. Smith, 31 N. Y., 595. It seemed to the commissioners to be un-
necessary and plainly unjust, to seize a person’s property, upon an ex
parte allegation of the existence of a demand, simply because such
property happens to be found out of the county where the alleged
debtor resides ; and, accordingly, this article abolishes that practice ;
extending, however, the right to issue an attachment, to cases where
the defendant is about to remove his property from the county where
it is found, as well as from the county where he resides.

The earlier cases laid down very stringent rules, in regard to the
manner in which the fraudulent intent of the defendant must be
stated in the affidavit. This has been a very fruitful source of con-
troversy ; and the reports are full of cases, where it has been held,
that an attachment was void, for the want of proper allegations in the
affidavit upon which it was founded. So stringent were those rulings
that, at one time, it appeared to be almost necessary to prove the de-
fendant’s fraudulent intent by direct and affirmative evidence, so that
the cases were rare, in which the plaintiff could obtain a valid attach-
ment; forit is not often that a debtor, designing to cheat his cred-
itors, manifests his intention in such a manner, that it is suscepti-
ble of direct proof. But the case of Schoonmaker v. Spencer, 54 N.
Y., 366, authoritatively established much Jess stringent rules than the
former cases. See, also, Horton v. Fancher, 14 Hun, 172. The
provisions of this article so nearly resemble those of the sections re-
lating to attachments in the principal courts of record, that doubt-
less the decisions under the latter, which establish rules allowing the
attachment to be made a remedy of great practical value, will be
generally applicable to this article, upon the question which has given
rise to most of the difficulties referred to.

Src. 2905. In what actions, warrant of attachment may be granted.
2906. What must be shown to procure a warrant.
2907. Warrant ; form and contents thereof.
2908. Undertaking.
2909. Warrant; how executed,
2910. Service of summons and warrant upon defendant.
2911. Undertaking by defendant ; re-delivery to him.
2912. Claim by third person; bond and delivery thereupon.
2913. Action upon bond.

26
CHAP. XIX. ] ATTACHMENT OF PROPERTY. §§ 2905-2906.

Src. 2914. When defendant may prosecute bond.
2915. Return of warrant.
2916. Motion to vacate or modify warrant, etc.
2917. Effect of vacating warrant.
2918. Proceedings where summons not personally served.

§ 2905. In an action brought before a justice of the peace, a
warrant of attachment against the property of one or more defend-
ants must be granted, upon the application of the plaintiff, as
prescribed in this article, there the action is brought upon a
judgment, or to recover for one or more of the following causes :

1. Breach of a contract, express or implied.

2. Wrongful conversion of personal property.

8. Any other injury to personal property, in consequence of neg-
ligence, fraud, or other misconduct.

[Substituted for parts of §§ 26 and 27 of tit. 4, ch. 2, Part 3 of the
R. 5. (3 B.S, 5th ed., 430; 2 Edm., 245), and framed in accordance
with the principles stated in the preliminary note to this article. The
words, “rendered within this State,” are omitted after “judgment,” so
as to make the section correspond, in that respect, to L. 1831, ch. 300,
§ 34 (4 Edm., 473).]

§ 2906. To entitle the plaintiff to such a warrant, he must show,
by affidavit, to the satisfaction of the justice, as follows:

1. That a sufficient cause of action exists against the defendant,
to recover damages for one or more of the causes specified in the last
section. If the action is upon a judgment, or to recover for breach
of a contract, the affidavit must show that the plaintiff is entitled
to recover a sum stated therein, over and above all counterclaims
known to him.

2. That the defendant is either a foreign corporation; or not a
resident of the State; or, if the defendant is a natural person, and a
resident of the State, that he has departed, or is about to depart,
from the county where he last resided, with intent to defraud his
creditors, or to avoid the service of a summons; or keeps himself
concealed, with the like intent; or, if the defendant is a natural per-
son, or a domestic corporation, that he or it has removed, or is about
to remove, property from the county where the defendant, being a
natural person, last resided, or, being a corporation, last kept its
principal office, or from the county in which the action is brought,

with intent to defraud his or its creditors ; or has assigned, disposed
27

ART. 4.

In what
actions,
warrant of
attach-
ment may
be granted.

What must
be shown
to procure
a warrant.
§ 2907. ATTACHMENT OF PROPERTY. [cops ctv. Proo.

“TITLE 2, ; é ‘
of, or secreted, or is about to assign, dispose of, or secrete, property,

with the like intent; or that the defendant, being a natural person of
full age, and a resident of the State, has been continuously without
the United States for the space of six months or more, immediately
before the application, and either that he has not made a designation
of a person, upon whom to serve a summons in his behalf, as pre-
scribed in section 430 of this act, or that service upon the person so
designated cannot be made, with due diligence, in the county
where the person making the designation resides.

The affidavit must be filed with the justice. when the warrant is
granted.(*)

[The remainder of § 26, and part of § 28 of the R. S., and L. 1831,
ch. 300, § 34(3 RB. 8., 5th ed., 462; 4 Edm., 473), consolidated, and
amended by omitting the provision as to who shall make the affidavit,
thus allowing the plaintiff to prove the facts by any competent testi-
mony ; by including a case where the defendant is a foreign corpora-
tion, and adding provisions appropriate to that case, including the re-
moval, etc., of property of such a corporation from the county in which
the action is brought; also, by adding the provision for a case, where
the defendant is absent from the State, without having made a desig-
nation under § 430 of this act ; and by adding the last sentence. The
words, ‘“‘ with due diligence”, will enable the justice to grant the attach-
ment, if it clearly appears that an attempt to serve the summons upon

the person designated would be fruitless, without the effort having
been actually made, as § 438 requires in courts of record.

Warrant; § 2907. The warrant must be granted by the justice who issues
form and

coments the sumimons, at the time when the summons is issued; and it must

be indorsed thereupon, or annexed thereto. It must be subscribed
by the justice, and must briefly recite the ground of the attachment.
It must require the constable, to whom the summons is delivered, to
attach, on or before a day specified therein, which must be at least
six days before the return day of the summons, and safely to keep,
as much of the defendant’s goods and chattels, within his county, as
will satisfy the plaintiff's demand, with the costs and expenses, and
to make return of his proceedings thereon to the justice, at the time
when the summons is returnable. The amount of the piaintiff’s de-
mand must be specified in the warrant, as stated in the affidavit.

[Sec. 30 of the R. 8., amended by adding the first sentence, and the
clause specifying the time when the attachment 1s to be made, in lieu
of the provision in the original, specifying the time when the return

28

 

(a) Section 430 ison p. 193.
CHAP. x1x.]} ATTACHMENT OF PROPERTY. 8§ 2908-2910.

is to be made. Section 2909, post, provides, in analogy to the exist-
ing statute, that the warrant must be executed six days before the
return day; and it is eminently proper, that this restriction should
appear upon the face of the warrant. ]

§ 2998. Before granting the warrant, the justice must require a
written undertaking to the defendant, on the part of the plaintiff,
with one or more sureties, approved by the justice, to the effect that,
if the defendant recovers judgment, or the warrant of attachment is
vacated, the plaintiff will pay all costs which may be awarded to the
defendant, and all damages which he may sustain by reason of the
attachment, not exceeding the sum specified in the undertaking,
which must be at least two hundred dollars; and that if the plaintiff
recovers judgment, he will pay to the defendant all money received
by him from property taken by virtue of the warrant of attachment,
or wpon any bond given therefor, over and above the amouut of the

judgment, and interest thereupon.

[Id., § 29, amended by substituting an undertaking for a bond, thus
abrogating the ruling, under the former statute, in Ziffany v. Lord,
65 N. Y., 310, that a bond was necessary ; and by inserting the words,
“or upon any bond given therefor,” to protect the defendant from a
possible loss under § 2913, post. Sections 728-730 and 810-816, re-
lating to undertakings and affidavits, are applicable to justices’ courts.
See § 3347, subd. 6.](*)

§ 2909. The constable, to whom the warrant of attachment is
delivered, must execute it at least six days before the return day of the
summons, by levying upon and taking into his custody so much of
the goodsand chattels of the defendant, not exempt from levy and
sale by virtue of an execution, including money and _bank-notes,
which he finds within his county, as will satisfy the plaintiffs demand,
with the costs and expenses. He must safely keep the property at-
tached, to be disposed of as prescribed in this article, and must im-
mediately make an inventory thereof, stating therein the estimated
value of each item or article.

[Id., the first part of § 31, amended as required by the general plan
of this article. |

§ 2910. The constable must, immediately after making the inven-
tory, and at least six days before the return day of the summons,
serve the summons, together with the warrant of attachment and in-
ventory, upon the defendant, by delivering to him personally a copy

29

 

(a) The sections referred to in this note are on pp. 208, 209; 211—213; 360.

ART. 4.

Under-
taking.

Warrant:
how exe-
cuted.

Service of
summons
and war-
rant upon
defendant.
§§ 2911-2912. ATTACHMENT OF PROPERTY. [copE ctv. proc.

nian each, if he can, with reasonable diligence, be found within the

county ; or, if he cannot be so found, by leaving a copy of each, cer-
tified by the constable, at the last place of residence of the defendant
in the county, with a person of suitable age and discretion ; or, if
such a person cannot be found there, by posting it on the outer door,
and also depositing another copy in the nearest post-office, inclosed
in a sealed post-paid wrapper, directed to the defendant at his resi-
dence; or, if the defendant has no place of residence in the county,
by delivering it to the person in whose possession the property
attached is found.

[Id., the remainder of § 31, as modified by § 36 of the act of 1831,
amended in accordance with the general plan of this article; and b
providing for the mode of service, where no one can be found at the
defendant’s last residence. |

Undertak- — § VOLT. The defendant, or his attorney or agent in his behalf,
Se may, at any time before judgment is rendered in the action, execute

him, ; iy a
vem: and deliver to the constable an undertakin g to the plaintiff, in a sum

specified therein, at least twice the value of the property attached,
as stated in the inventory; with one or more sureties, approved by
the constable, or by the justice who issued the warrant; and to the
effect that, if judgment is rendered against the defendant, and an
execution is issued thereupon, within six months after the giving of
the undertaking, the property attached shall be produced to satisfy
the execution. Thereupon the constable must redeliver the prop-
erty to the defendant.

[Id., § 82, and part of § 34, amended as follows: The right to reclaim
has been confined to the defendant, or his agent or attorney, instead
of being conferred upon ‘any person,” as a claim by a third person

; is provided for in the next section ; an undertaking has been sub-
stituted for a bond; the penalty of the undertaking has been fixed
at twice the inventory value of the chattels attached ; the justice has
been allowed to approve of the sureties ; and the defendant has been
authorized to reclaim the property, at any time during the pendency
of the action. See note to § 2908, ante, for provisions applying to ac-
knowledgment, etc., of undertakings. ]

Claim by § 2912. Ifa person, not a party to the action, claims any prop-
ird per-

son 5004 erty attached, which is not reclaimed by the defendant, as prescribed
atom” in the last section, he may, at any time after the seizure, and before

execution is issued upon a judginent rendered in the action, execute,

and file with the justice, a bond to the plaintiff, with one or more
30
cuap. x1x.| ATTACHMENT OF PROPERTY. 8§ 2913-2914.

sureties, approved by the constable or by the justice; in a penalty
at least twice the value of the property claimed; and conditioned
that, in an action upon the bond, to be commenced within three
months thereafter, the claimant will establish that he was the gen-
eral owner of the property claimed, at the time of the seizure; or,
if he fails so to do, that he will pay to the plaintiff the value thereof,
with interest. The constable must thereupon deliver the property

claimed to the claimant.

[Id., § 33, and part of § 34, amended by confining the provision to
property unreclaimed by the defendant; by requiring the bond to be
filed with the justice; by allowing the justice to approve of the sure-
ties; by limiting the penalty to twice the value of the property
claimed ; and also as follows: The word, ‘‘ general,” has been inserted
before “owner,” in accordance with Pierce v. Kingsmill, 25 Barb.,
631; and the word, ‘‘claimed,” has been substituted for ‘‘ seized.”
This section retains the bond required by the former statute, instead
of substituting an undertaking therefor, in accordance with the rule,
adopted in various similar cases, that, in general, the substitution
should not be made, where the object of the security is to lay the
foundation of an independent action, by or against a person nota
party. A bond avoids various questions relating to the consideration,
and to the statute of frauds; and it may sometimes be necessary to
bring the action in a jurisdiction, where the decisions of our courts
upon those questions will not fully control. ]

§ 2913. A judgment for the plaintiff, in an action upon a bond,
given as prescribed in the last section, must award to him the value
of the property seized and delivered to the claimant, with interest
thereupon from the time of the delivery. If the amount so recovered
exceeds the amount, which the plaintiff recovers, in the action in
which the warrant of attachment was issued, he is liable to the de-
fendant in that action for the excess.

[Id.,§§ 36 and 37, amended by omitting, as unnecessary, the first
clause of § 36.]

§ 2914. If the warrant of attachment is vacated or annulled, the
defendant may maintain an action, upon the bond specified in the
last two sections, in his own name, in the same manner and with the
like effect, as the plaintiff might have done, if the warrant had re-
mained in full force.

[Substituted for id.. § 38, which fails to provide for the case of a
recovery of judgment by thedefendant. For a definition of “annulled”,
see § 3343, subd. 12.](*)

31

 

(a) Page 357.

ART. 4.

Action
upon
bond,

When de-
fendant
may prose-
cute bond.
§§ 2915-2916. ATTACHMENT OF PROPERTY. [cope civ. proc.
ee a § 2915. The constable executing the warrant of attachment
Ranenrs must, at the time when and place where it is returnable, make a re-
turn thereto, under his hand, stating all his proceedings thereupon.
He must deliver to the justice, with the return, each bond or under-
taking delivered to him, pursuant to any of the foregoing provisions
of this article, and a certified copy of the inventory of the property
attached. The return must state the manner in which the warrant
and inventory were served, and, if they were served otherwise than
by delivering a copy thereof to the defendant personally, the reason
therefor, and the name of the person to whom the copy was de-
livered, unless his name is unknown to the constable; in which case,
the return must describe him so as to identify him, as nearly as

may be.

[Id., § 35, and part of § 36 of the act of 1831, consolidated, and
amended by requiring the return to show the mode of service, where
it was not personal. ]

Motionto  § 2916. A defendant, whose property has been attached, may,

vacate or

ate ee ‘
meow ‘Wpor the return of the summons, apply to the justice, who issued

it the warrant of attachment, to vacate or modify it, or to increase the

plaintiff's security. Such an application may be founded upon the
papers upon which the warrant was granted ; or upon proof, by afti-
davit, on the part of the defendant; or upon both. If it is founded
upon proof on the part of the defendant, it may be opposed by new
proof, by affidavit, upon the part of the plaintiff, tending to sustain
any ground for the attachment, recited in the warrant, but no other.
The justice may, upon the return of the summons, or at any other
time to which the action is adjourned, vacate the warrant of attach-
ment upon his own motion, if he deems the papers, upon which it
was granted, insufficient to authorize it.

[New ; but in substantial accordance with similar provisions, relat-
ing to attachments in actions brought in courts of record. As the
time is so short, between the levy under the attachment and the
return of the warrant, it is unnecessary to provide, that the motion may
be made upon notice, or by a person acquiring title after the levy.
It seems proper to permit a motion to vacate the warrant; for, under
the scheme of this article, the action does not fall with the war-
rant, where the latter is vacated. The last sentence is designed to
alow the justice to rectify an error, into which he may have inad-
vertently been led, in the haste which usually attends the issuing of
an attachment. ]

32
CHAP. XIX. | REPLEVIN. §§ 2917-2918.

ART. 5.

§ 2917. Vacating the warrant of attachment does not affect the poco op
vacating

jurisdiction of the justice to hear and determine the action, where Warrant,
the defendant has appeared generally in the action; or where the
summons was personally served upon him; or where judgment may

be taken against him, as being indebted jointly with another defend-

ant, who has been thus summoned, or has thus appeared. In every

other case, the justice, who vacates a warrant of attachment against

the property of a defendant, must dismiss the action as to him.

[New ; inserted in consequence of the amendments, making a war-
rant of attachment a provisional remedy, instead of the process for the
commencement of the action.]

§ 2918. Where the defendant has not appeared, and the sum- Proceed-

ings where

mons has not been personally served upon him, and property of the not per.

defendant has been duly attached by virtue of a warrant, which has served.

not been vacated, the justice must proceed to hear and determine
the action; but, in an action subsequently brought, the judgment is
only presumptive evidence of indebtedness, and the defendant is not
barred from any counterclaim against the plaintiff. The execution,
issued upon a judgment so rendered, must require the constable to
satisfy it out of the property so attached, without containing a di-
rection to satisfy it out of any other property.

[L. 1831, ch. 300, § 39 (3 R.S., 5th ed., 463 ; 4 Edm., 474), amended.
See § 2948, subd. 5, post, which however is confined to actions on
contract. |

ARTICLE FIFTH.

REPLEVIN.

PRELIMINARY Nors.— In this article, as in the third and fourth
articles, an effort has been made to assimilate the proceedings in jus-
tices’ courts to those in the principal courts of record, as nearly as the
jurisdiction of the former, and the general mode of procedure therein
rendered it practicable so todo. The alterations in the former statutes,
which have been made, are not, however, so importantas to call for any
special notice here, except the one relating to the time within whicha
requisition to replevy must be executed. There is an obscurity, and
perhaps an inconsistency in the provision relating to this subject, con-
tained in L. 1860, ch. 131 (printed generally, but erroneously, as part
of § 53 of the Code of Procedure). Section 4 of that act provided that

[5] 33
§ 2919. REPLEVIN. [CODE CIV. PROC.

TITLE 2. ‘ 4
the summons might be returnable at any time within twelve days ; but

no specific time was pointed out, within which the property was to be
replevied. Hence it might have been plausibly argued, that a summons
might be returnable on the day when it was issued, and of course
that the property might be replevied on the same day; or, if the
summons had twelve days to run,on the last day. On the other
hand, § 6 provided that the defendant might, within two days before
the return day of the summons, except to the sureties in the under-
taking ; and § 7 allowed him to reclaim the property at any time be-
fore the return day. Apparently these provisions implied that the
property must have been replevied at least two days before the return
day; but the true construction is doubtful. Even if two days must have
clapsed before the return day, it frequently would have been impossible
for a defendant, although residing in the county, to be seasonably in-
formed of the proceeding against his property. Itis evident, therefore,
that, under the most favorable construction of the former statute, there
was room for much abuse; especially as § 12 allowed a judgment to be
taken in a certain case, without service of process on anybody.

After careful consideration, the commissioners concluded, that the
best mode of removing this defect in the statute was to limit the time,
within which the requisition must be executed, to six days before the
return of the summons. This divides the usual lifetime of the sum-
mons equally between the plaintiff and the defendant, and will gener-
ally give the latter sufficient time to protect his rights. It has also
the advantage of corresponding with the time, within which a warrant
of attachment must be executed, in which respect, this Code leaves
the law, as it has remained in force for upwards of sixty years.

Sxc. 2919. When action for a chattel may be brought.
2920. Plaintiff may procure replevin ; affidavit and undertaking,
2921. Requisition,
2922. Id. ; how executed. Service of summons, etc.
2923. Return of constable.
2924. Defendant may except to sureties ; proceedings thereen.
2925. Defendant may reclaim chattel ; proceedings thereon,
2926. Justification of sureties.
2927. When and to whom constable must deliver chattel.
2928. Penalty for wrong delivery by constable.
2929. Claim of title by third person.
2930. Defendant may demand judgment for return.
2931. Proceedingsin the action ; action upon undertaking.
2932. Proceedings when summons not personally served.
2933. When action not affected by failure to replevy.

eras § 2919. An action to recovera chattel, with or without damages
1

os for the wrongful taking, withholding, or detention thereof, can be

enreve brought before a justice of the peace of the county in which the

34
CHAP. XIX.] REPLEVIN. §§ 2920-2922.

chattel is found, in a case, and subject to the qualifications, specified
in sections 1689, 1690, 1691, and 1692, and subdivision seventh of
section 2862 of this act.(*)

[Substituted for that part of Co. Proc.,§ 53, subd. 10, as controlled
by L. 1860, ch. 181, § 4, relating to the place of trial, which is not in-
cluded in section 2862, ante. ‘The reference to §§ 1689-1692, dis-
penses with the necessity of repeating here the provisions of those
sections. |

§ 2920. The plaintiff may, at the time when the summons is is-
sued, but not afterwards, require the chattel to be replevied, as pre-
scribed in this article. For that purpose, he must deliver to the
justice an affidavit and an undertaking, similar, in all respects, to the
affidavit and undertaking required to be delivered to a sheriff, as
prescribed in sections 1695, 1697, 1699, and 1712 of this act ; except
that the sureties in the undertaking must be approved by the jus-
tice.(°)

[L. 1860, ch. 131, §§ 2 and 3, and a part of § 4 (2 Hdm., 235; 5 id.,
134), amended, by substituting a reference to the provisions of
chapter 14 of this act, relating to the undertaking and affidavit
in a court of record, in place of the provisions specially regulating
the same papers in a justice’s court. Sections 728-730 and 810-816,

relating to affidavits and undertakings, apply to justices’ courts. See
§ 3347, subd. 6. See, also, § 2957, post, last sentence. ](°)

§ 2921. Upon receiving the affidavit and undertaking, the jus-
tice must indorse upon or attach to the affidavit a written requisition,
subscribed by him, requiring the constable, to whom the summons
is delivered, to replevy the property described in the affidavit, on or
before a day specified in the requisition, which must be at least six
days before the return day of the summons. The affidavit and re-
quisition must be delivered to the constable, with the summons.

[Id., the remainder of § 4, amended by adding the clause, ‘‘on or
before a day specified in the requisition, which must be,” etc., for the
reason mentioned in the note to § 2907, ante; by requiring the requi-
sition to be executed by the officer who serves the summons; by
substituting the ordinary summons for the anomalous one, prescribed
in the former statute ; and by requiring the requisition to be attached
to the affidavit. ]

§ 2922. The constable must execute the requisition, as a sheriff

is required to execute a requisition, in an action brought to recover a

chattel, as prescribed in sections 1700, 1701, and 1702 of this act ;
30

 

(a) The sections referred to, not in this chapter, are on pp. 272, 273.
ey The sections referred to are on pp. 27T4—276 ; 281.
(c) The sections referred to, not in this chapter, are on pp. 208, 209; 211—213; 360.

ART, 5.

Plaintiff
may pro-
cure re-
plevin ;
affidavit
and under-
taking.

Requisi-
tion

Id.; how
executed.
Service of
summons,
etc.
88 2923-2924. REPLEVIN. [copE crv. PROC.

TITLE 2.

Return of
constable.

Defendant
may ex-
cept to
sureties;
roceed-

pgs
thereon.

except that he must serve the summons, affidavit, and requisition,
within the time and in the manner prescribed, by section 2910 of
this act, for the service of a summons, warrant of attachment, and
inventory.(*)

[The first sentence applies to constables, the provisions of chapter
14, ante, prescribing the duty of a sheriff, with regard to the property
replevied. The remainder of the section consists of a part of § 5 of
the act of 1860, relating to the time and mode of service, with amend-

ments, which are fully explained in the note to § 2910, ante, and the
preliminary note to this article. ]

§ 2923. The constable must, on or before the return day of the
summons, make a return to the requisition, under his hand, stating
all his proceedings thereupon ; and file it, with the affidavit and re-
quisition, with the justice. The return must state the manner in
which the summons, affidavit, and requisition were served; and, if
they were served otherwise than by delivering the requisite copies
to the defendant personally, the reason therefor, and the name of the
person to whom the copies were delivered, unless his name is un-
known to the constable; in which case, the return must describe him

so as to identify him, as nearly as may be.

[L. 1860, ch. 131, last clause of § 5, amended by prescribing more
in detail the contents of the return, in accordance with § 2915, ante.]

§ 2924, At any time after the chattel has been replevied, and at
least two days before the return day of the summons, the defendant,
unless he requires a return of the chattel, may serve upon the plaint-
iff, or upon the constable, a written notice that he excepts to the
plaintiff’s sureties; otherwise he is deemed to have waived all
objections to them. If such a notice is served, the sureties must
justify upon the return of the summons; or the plaintiff must then
give a new undertaking, to the same effect as the original under-
taking, with other sureties, who must then appear and justify before
the justice.

{Id., § 6, amended and also by omitting, at the end, the clause,
“or said justice shall order said property delivered to defendant, and
shall also render judgment for defendant’s costs and disbursements”.
The first branch of this clause is covered by the provisions of § 2927,
post; and, with respect to the second, no good reason exists why the
action should not proceed, although the plaintiff’s sureties have
failed to justify. See the note to § 2896, ante, as to undertakings. ]

36

 

(a) See pp. 276, 277, for $8 1700-1702.
CHAP. XIX.] REPLEVIN. §§ 2925-2927,

ART. 5.

§ 2925. At any time before the return day of the summons, the pefenaaut
defendant may, if he does not except to the plaintiff’s sureties, serve claim
upon the justice a notice that he requires the return of the chattel es

thereon.

replevied. With the notice he must deliver to the justice an affida-
vit and an undertaking, similar, in all respects, to those required to
be given by a defendant upon requiring a return of a chattel, as
prescribed in sections 1704 and 1712 of this act, omitting the pro-
vision in the undertaking, “or if the action abates in consequence
of the defendant’s death.” The sureties in the undertaking must
justify before the justice upon the return of the summons. If the
plaintiff has stated separately in his affidavit the value of one or more
chattels or classes of chattels, as prescribed in section 1697 of this
act, the defendant may require a delivery of part of the property
replevied, as prescribed in that section.(*)

[Id., § 7, amended in conformity to the corresponding provisions of
chapter 14 of this act. The principal change consists in requiring an
affidavit, and also allowing the defendant to require the return of a
part of the chattels replevied, in certain cases. ]

§ 2926. Except as otherwise expressly prescribed in this article Justifica-
the examination and qualifications of the sureties, and the allowance sureties.
of the undertaking, upon a justification pursuant to either of the
last two sections, must be the same as upon a justification of bail, as
prescribed in sections 579, 580, and 581 of this act, substituting the
Justice for the judge; but after such allowance, the undertaking
must be filed with the justice. The constable is thereupon exon-

erated from liability.(°)

[Id., § 8, without substantial change. The last sentence, and the
provision requiring the undertaking to be filed, are new. |

§ 2927. If the defendant neither excepts to the plaintiff ’s sure- When and
owhom
ties, nor requires the return of the chattel, within the time pre- constable

scribed for that purpose; or if he fails to procure the allowance of liver
his undertaking ; or if the plaintiff, after the defendant has excepted
to his sureties, duly procures the allowance of his undertaking, the
* constable must, except in the case specified in the next section but
one, immediately deliver the chattel to the plaintiff. If the plaintiff,
after the defendant has excepted to his sureties, fails to procure: the
allowance of his undertaking; or if the defendant, after he has

37

 

(a) Section 1704 is on p. 278; section 1712 on p. 281; section 1697 on p. 275.
(b) The sections referred to are on p. 207.
§§ 2928-2930. REPLEVIN. [CODE CIV. PROO.

TITLE 2, .
required the return of the chattel, procures the allowance of his

undertaking, the constable must immediately deliver the chattel to
the defendant.

[Substituted for the last clause of id., § 7, in conformity to § 1706,
ante. |(*)

Tonaley § 2928. A constable who delivers to either party, without the

for wrong
esnsanie” consent of the other, a chattel replevied by him, except as prescribed

in the last section, or, by virtue of an execution issued upon a judg-
ment in the action, forfeits to the party aggrieved the sum of one
hundred dollars; and is also liable to him for all damages which he
sustains thereby.

[New. Designed to place the constable under a penalty and liabil-
ity corresponding, except in amount, to that of the sheriff in a like
case in a court of record. |

Claim of § 2929. The provisions, regulating the proceedings, where a per-
v

third per- son, not a party, claims property which has been replevied, and the
rights of such a person, and of the sheriff, as prescribed in sections
1709, 1710, 1711, and 1712 of this act, apply to a like case in an
action, brought as prescribed in this article, substituting the constable
for the sheriff; except that service of a notice and of a copy of the
claimant’s affidavit, upon the plaintiff’s attorney, as prescribed in
section 1709, must be made, either upon the plaintiff personally, or
apon the attorney who appears for him before the justice; and that
the sum specified in the undertaking, given by the plaintiff to the
constable, need not exceed, in any case, three hundred dollars.(°)

[Substituted for so much of id., § 9, as applies, Co. Proc., § 216, to
an action for a chattel in a justice’s court. ]

Defendant — § 29390. Where a chattel has been replevied, and the defendant
may de-

mavdient Has not required the return thereof, pending the action, as prescribed
ton re a the foregoing sections of this article, he may, in his answer, demand

judgment for the return thereof, either with or without damages for
the taking, withholding, or detention.

[Substituted for part of id., § 11, which reads as follows: “The
defendant by answer shall claim areturn thereof.” The reasons which
induced the commissioners to substitute a notice for a demand in
the answer, in an action in a court of record, do not apply to a jus-
tice’s court. |

38

(a) Page 278. (b) The sections referred to are on pp. 279—281.

 
CHAP. XIxX.] PLEADINGS. _ 88 2931-2933.

TITLE 3.

§ 2931. Section 1373, section 1731, excluding subdivision first proceod-

thereof, and sections 1722, 1726, 1730, 1782, 1733, 1734, and 1735 acon
1
of this act, substituting the constable for the sheriff, apply to the gene.

proceedings in an action in a justice’s court to recover a chattel, and
to an action against the sureties in an undertaking given therein,
except as otherwise specially prescribed in this chapter.(*)

[Substituted for id., § 10, as amended by L. 1865, ch. 616 (6 Edm.,
559), and the remainder of § 11. The defects of the former statute
are well illustrated in Connors v. Joyce, 3 Lans. 315. The sections
referred to are those which relate to the rule of damages in a case of
depreciation ; the verdict, or decision of the court; the judgment ;
the execution; and an action against the sureties in the undertaking. ]

§ 2932. Where the defendant does not appear, and the sum- Proceed-

ings when

a summons
mons has not been personally served upon him, and a chattel, or part summon

of a chattel, to recover which the action is brought, has been re- Served.

plevied, and the proceedings thereupon have been duly taken, as
prescribed in this article ; the justice must proceed to hear and de-
termine the action, with respect to that chattel or part of a chattel ;
or, if the action is brought to recover two or more chattels, with
respect to those which have been replevied ; in like manner and with
like effect, as if the summons had been personally served.

[Substituted for § 12 of the same statute. ]

§ 2933. Where the summons has been personally served upon when ac-
tion not

the defendant, or where he appears, the justice must proceed to hear affected by
ALUTe

and determine the action, although the plaintiff has not required the TePlevy-
chattel to be replevied, or the constable has not been able to replevy it-

[New. The act of 1860 was so drawn, as to render it very doubtful
whether any recovery could be had, where the property had not been
replevied, although the summons was served. |

TITLE Il.

Pleadings ; including counterclaims, and proceedings upon
answer of title.

Szc. 2934. When issue to be joined.
2935. Pleadings.
2936. Complaint.
2937. What causes of action may be joined.
39

 

(a) The sections referred to are on pp. 258, 284; 281—285.
§§ 2934-2935. PLEADINGS. [CoDE CIV, PROC.

TITLE 3,

When
issue to be
joined.

Pleadings.

SEc. 2938, Answer.
2939. Demurrer.
2940, General rules of pleading.
2941. Account, or instrument for payment of money.
2942, Court may require items to be exhibited.
2943. Immaterial variance to be disregarded.

. 2944, Amendment of pleadings.

2945. Counterclaims.

2946. Id.; where executor or trustee is a party.

2947. Consequence of neglect to plead counterclaim.

2948. The last section qualified.

2949. Judgment upon counterclaim.

2950. Judgment when accounts exceed $400.

2951. Answer of title.

2952. Undertaking thereupon.

2953. In what court new action to be brought.

2954. When action before justice to be discontinued.

2955. Effect of failure to give undertaking.

2956. When title comes in question on plaintiff’s own showing.
2957. Pleadings in new action. Undertaking before justice, when applicable.
2958. Answer of title as to one of several causes of action.

§ 2934. At the place, and within one hour after the time, speci-
fied in the summons for the return thereof; or, where an order of
arrest is granted and executed, within twelve hours after the defend-
ant is brought before the justice; or, where no summons is issued,
at the time when the parties voluntarily appear to join issue, the
pleadings of the parties must be made, and issue must be joined.
Where both parties appear upon the return of the summons, an issue
must be joinéd before an adjournment is had, except when the de-
fendant refuses or neglects to plead.

[2 R. S., 233, Part 3, ch. 2, tit. 4, § 47, as amended by L. 1845, ch.
25 (3 RB. S., 5th ed., 434; 2 Hdm., 249). This section has been made
applicable to a case where an order of arrest has been executed. ]

§ 2933. The pleadings in a justice’s court are:

1. The plaintiff’s complaint.

2. The defendant’s answer.

3. The defendant’s demurrer to the complaint, or to one or more
distinct causes of action, separately stated therein.

4. The plaintiff’s demwrer to one or more counterclaims stated
in the answer.

[Co. Proc., § 64, subd. 1, amended by the addition of the last two |
subdivisions, so as to correspond with subd. 6 of the same section, as
amended in § 2939, post. |

40
CHAP. XIX. ] PLEADINGS. 8§ 2936-2939.

TITLE 3.

§ 2936. The complaint must state, ina plain and direct manner, complaint.

the facts constituting the cause of action.
{Id., subd. 3, unaltered, |

§ 2937. The plaintiff may unite, in the same complaint, two or what :
. causes 0
more causes of action, where they all arise out of action may

be joined.

1. The same transaction, or transactions connected with the same
subject of action; or

2. Contract, express or implied ; or

3. Personal injuries, and injuries to property, or either.

But it must appear, upon the face of the complaint, that all the
causes of action so united belong to one of the foregoing sub-
divisions of this section; that they are consistent with each other ;
that they require the same judgment ; and, except as otherwise pre-
scribed by law, that they affect all the parties. Where a cause of
action, for which a defendant might be arrested, is united with a
cause of action, for which he cannot be arrested, an execution
against the person of the defendant cannot be issued upon the judg-
ment.

[New. The subject has been heretofore unprovided for, whence con-
siderable confusion has arisen. This section has been modelled upon
§ 484 of this act, which regulates the joinder of causes of action in
courts of record, omitting matters inapplicable to a justice’s court,
and those which are sufficiently provided for elsewhere in this chapter.
The concluding portion of the section varies also from that of § 484
in various particulars, in order to adapt it toa justice’s court. ]

§ 2938. The answer may contain a general denial of each allega- answer.
tion of the complaint, or a specific denial of one or more of the
material allegations thereof. It may also set forth, ina plain and
direct manner, new matter, constituting one or more defences or
counterclaims.

[Co. Proc., § 64, subd. 4, amended by substituting “general denial
of each allegation of the complaint, or a specific denial of one or more
of the material allegations thereof,” for “denial of the complaint or
of any part thereof ;” and “it may also set forth,” for “ notice ;” by
omitting ‘‘ of ” after “manner ;” and bysubstituting ‘‘new matter,”
for ‘“‘any facts,” and, “one or more defences or counterclaims,” for
“a defence or counterclaim.” ]

§ 2939. In a case specified in subdivision third or fourth of sec- pomurrer.

tion 2935 of this act, a party may demur to the pleading of the adverse
[6] 41
§§ 2940-2941, PLEADINGS. [CODE CIV. PROC.

TITLE 3.

General
rules of
pleading.

Account,
or instru:
ment for
payment
of money.

party, or, if it is a complaint, to one or more distinct and separate
causes of action, where it is not sufficiently explicit to be understood ;
or where it does not state facts sufficient to constitute a cause of
action, or counterclaim, as the case may be. If the court deems the
demurrer well founded, it must permit the pleading to be amended ;
and if the party fails so to amend, the defective pleading, or part of
a pleading, demurred to, must be disregarded. If the court deems
the demurrer not well founded, it must permit the party making it.
to plead over, at his election.

[Id., subd. 6 and 7, amended by adding the reference to § 2935; by
substituting the words, ‘‘or, if it isa complaint, to one or more dis-
tinct and separate causes of action,” for ‘or any part thereof;” by
substituting the words, “be understood,” for ‘enable him to under-
stand it;” and the clause at the conclusion of the first sentence for
“or it contains no cause of action or defence, although it be taken as
true.” These amendments are merely for the purpose of correcting
obvious defects of expression, except the clause permitting the de-
fendant to demur to a distinct cause of action, or the plaintiff to
demur to a distinct counterclaim. It is not intended, by the latter
amendment, to make any change in the essential requisites of the
pleadings; on the contrary, the provisions of subd. 2 and 5 of § 64 of
the former Code are substantially retained in the next section. But
it appeared to be desirable, especially in view of the recent extension
of the jurisdiction of these courts, and the special provisions for try-
ing issues of law upon appeal, to enable the parties, if they prefer so
to do, to present distinctly questions of law, arising upon one or more
separate causes of action stated in the complaint, or separate counter-
claims stated in the answer, substantially as m courts of record. This

is all the object and effect of the amendment. The last sentence was
inserted to supply an omission in the former statute. ]

§ 2940. A pleading, except as otherwise prescribed in section
2951 of this act, may be oral or written. If it is oral, the substance
thereof must be entered by the justice in his docket-book : if it is writ-
ten, it must be filed by him, and a reference to it made in his docket-
book. A pleading is not required to be in any particular form ; but
it must be so expressed, as to enable a person of common under-
standing to know what is intended.

{Id., subd. 2 and 5, amended by adding the exception in the first
sentence, in accordance with Co. Proc., § 55.]

§ 2941. For the purpose of setting forth a cause of action, de-
fence, or counterclaim, founded upon an account, or upon an instru-
ment for the payment of money only, it is sufficient for the party to

42
CHAP. XIX. | PLEADINGS. 8§ 2942-2944.

deliver the instrument, or a copy of the account to the court, and to. 77*"*

state that there is due to him thereupon, from the adverse party, a
specified sum, which he claims to recover or to set off.

[Id., subd. 9.]

§ 2942. The court may, upon the request of either party, made Court, may

when issue is joined, require the adverse party to exhibit his account items to be
or demand, or to state the nature thereof, as far as it is in his power

so to do, at that or another specified time ; and in case of his default,

it may preclude him from giving evidence of such parts thereof, as

have not been so exhibited or stated.

[Id., subd. 14, amended by substituting “or” for “on,” before
“demand,” for the purpose of correcting a supposed error committed
in engrossing the act. The commissioners, having made a special
application to ascertain how the original statute read, were informed
by the secretary of State, that the word is plainly ‘‘on;” although in
Judge Epmonps’s edition of the statutes, it is printed “or.” See 5
Edm., 18.]

§2943. A variance, between an allegation in a pleading and the Immate-
Trial vari-

proof, must be disregarded as immaterial, unless the court is satisfied Bae See

that the adverse party has been misled thereby, to his prejudice. sardods
[Id., subd. 10. ]

§ 2944. The court must, upon application, allow a pleading to Amend.
ment o

be amended, at any time before the trial, or during the trial, or upon Pleadings.
appeal, if substantial justice will be promoted thereby. Where a

party amends his pleading after joinder of issue, or pleads over upon

the decision of a demurrer, and it is made to appear to the satisfac-

tion of the court, by oath, that an adjournment is necessary to the

adverse party, in consequence of the amendment or pleading over,

an adjournment must be granted. The court may also, in its discre-

tion, require, as a condition of allowing an amendment, the payment

of costs to the adverse party.

[Id., subd. 11, amended so as to give to either party an absolute
right to amend, in accordance with Ayan v. Lewis, 3 Hun, 429;
Wood v. Shuitis, 4 Hun, 309; and Walsh v. Cornett, 17 Hun, 27;
also by making the second sentence applicable to a case where a party
pleads over pon the decision of a demurrer. In general, the court,
under the former statute, would not allow amendments upon appeal.
McGinms v. Mayor, etc., of N. ¥., 6 Daly, N. Y.C. P., 416. This

section, however, puts amendments upon appeal on the same footing,
as those made in the court below.]

43
"§§ 2945-2948. COUNTERCLAIM. [CODE CIV. PROC.

 

Counter  § 2945, Sections 501 and 502 of this act apply to a counterclaim
laims, is
on an action brought in a justice’s court; except that such a coun-

terclaim cannot be interposed, unless it is of such a nature, that a
justice’s court has jurisdiction of a cause of action founded thereon.(*)

[Substituted for 2R. 8., 234, Part 3, ch. 2, tit. 4, § 50 (3 R.S8., 5th
ed., 484-435; 2 Hdm., 250-251). It was held in Willams vy. Butner,
1 Lans., 200, that Co. Proc., § 64, subd. 4, permitted the interposition
of a counterclaim in a justice’s court, of the same nature as the counter-
claim allowed in an action in acourt of record. If this ruling was
correct, the effect of § 64 of the Code of Procedure was to repeal subd.
1-6 of § 50 of the R. 8. Even if it did not declare the true construc-
tion of the former statute, such a rule should be established, subject,
of course, to the limited jurisdiction of a justice’s court. The re-
mainder of § 50, and §§ 52, 55 and 56 of the R.S., as well as the
provisions of Co. Proc., § 150, are contained in §§ 501, 502, 505 and
506; which are made applicable by this and the next section, as
qualified by § 3134, post, to an action in a justice’s court, as far as
the constitution of that court and its mode of procedure enable the
application to be made. See, for a further explanation of this com-
plicated question, the notes to §§ 501 and 502. }

Id.; where § 2946. Sections 505 and 506 of this act apply to a counterclaim

executor

t ti . . . . . . .
isaparty. in an action against a person sued in a representative capacity, or in

favor of an executor or administrator, except that the defendant
cannot take judgment against the plaintiff upon a counterclaim, for
a sum exceeding two hundred dollars.(°)

[Substituted for id., §§ 55 and 56. The making of § 505 applicable
supplies in part an omission in the present statute. |

Conse- § 2947. Where the defendant, in an action to recover damages
quence of

neglect to : ’ i
fiend upon or for breach of a contract, neglects to interpose a counter-

counter- : sae . : .
claim. Claim, consisting ofa cause of action in his favor to recover damages

for a like cause, which might have been allowed to him upon the
trial of the action, he, and every person deriving title thereto through
or from him, are forever thereafter precluded from maintaining an
action to recover the same, or any part thereof.

[Id., §57 (8 R.S., 5th ed. 436; 2 Edm., 252), with amendments,
to conform the statute to changes since made in the law, with respect
to counterclaims and the assignability of things in action.]

The last § 2948. But the prohibition contained in the last section does
qualified. not extend to either of the following cases:
1. Where the amount of the counterclaim is two hundred dollars
more than the judgment which the plaintiff recovers.

44

 

(a) For sections 501 and 502, see pp. 201, 202. (b) Sections 505 and 506 are on p. 203,
CHAP. XIX.] COUNTERCLAIM.

2. Where the counterclaim consists of a judgment, rendered before
the commencement of the action, in which it might have been inter-
posed.

3. Where the counterclaim consists of a claim for unliquidated
damages.

4, Where the counterclaim consists of a claim, upon which another
action was pending, at the time when the action was commenced.

5. Where judgment is taken against the defendant, without per-
sonal service of the summons upon him, or an appearance by him.

[Id., § 58, as amended by L. 1840, ch. 317, with such alterations as
were required to make the section correspond to the foregoing pro-
visions of this title, and also the following: Subd. 3 of the original,
which is taken into the next succeeding section, has been omitted
here; and subd. 4 has also been omitted, because its substance is con-
tained in subd. 5 of this section. Subd. 3 (subd. 5 of the original),
omits the words, “ which could not be set off on the trial of the cause,
according to the preceding provisions.” The whole subdivision was
unnecessary in the Revised Statutes, as the cases included within it
did not come within the language of the next preceding section; but
now a counterclaim includes a recoupment as well as a set-off, so that
this section retains the first clause of the subdivision; but the second,
which has been omitted, would now lead to consequences not contem-
plated by the framers of the statute. Subd. 5, as already stated,
includes the case provided for in subd. 4 of the original. It also covers
L. 1831, ch. 300, § 39, last clause (3 R. 8., 5th ed., 464; 4 Edm., 474),
as modified by the provisions of § 2918, ante; but it extends, also, to
various other cases, arising under statutes subsequent tothe R. 8., and
analogous to the cases thus provided for, in the respect that judgment
may be taken against a defendant, without his having actually had
an opportunity to interpose his counterclaim.]

§ 2949. Where a counterclaim is established, which equals the
plaintiff’s demand, the judgment must be in favor of the defendant.
Where it is less than the plaintiff’s demand, the plaintiff must have
judgment for the residue only. Where it exceeds the plaintiff’s
demand, the defendant must have judgment for the excess, or so
much thereof as is due from the plaintiff, unless it is more than the
sum of two hundred dollars. If it is more than two hundred dol-
lars, or if no part of it is due from the plaintiff, the justice must,
at the election of the defendant, either:

1. Set off so much of the counterclaim as is sufficient to satisfy
the plaintiff’s demand, and render judgment for the defendant for
his costs; in which case, the defendant may maintain an action for

the residue ; or,
45

§ 2949,

TITLE 3.

Judgment
upon
counter-
claim.
§§ 2950-2951. ANSWER OF TITLE. [copE civ. Proc.

“TITTLE 3,

 

2. Render a judgment of discontinuance with costs; in which
case, the defendant may thereafter maintain an action for the whole.

Where part of the excess is not due from the plaintiff, the judg-
ment does not prejudice the defendant’s right to recover, from an-
other person, so much thereof as the judgment does not cancel.

[Id., §§ 52 and 53, and § 58, subd. 3, consolidated, and amended by
dropping superfluous expressions and provisions; by increasing the
sum from one hundred to two hundred dollars ; and by providing for
the cases where the excess is not due, in whole or in part. ]

Judgment § 2950. Where, upon the trial of an action, the sum total of

when ac-
ceed e400, the accounts of both parties, proved to the satisfaction of the

justice, exceeds four hundred dollars, judgment of discontinuance
must be rendered against the plaintiff, with costs.

[Id., § 54, amended by the substitution of the words “the sum total
of the accounts of both parties, proved to the satisfaction of the jus-
tice,” for “‘it shall appear that the amount of the plaintiff’s claim,
together with the demands set off by the defendant, according to the
preceding provisions ”; so as to correspond to § 2863, ante. Section
54, subd. 4, of the Code of Procedure, and § 54 of the R.S., were
doubtless intended to refer to the same case; but the difference in their
phraseology left room for a question as to whether the latter might not
include some cases not covered by the former. It was thought very
desirable to do away with this discrepancy; especially as the definition
of a counterclaim under the Code of Procedure was much wider than
that of a set-off under the R. 8. The commissioners hesitated whether
it was expedient, in this section and in § 2863, ante, to retain the
expression, ‘to the satisfaction of the justice.” It has been held, that
his decision, upon the questions of fact involved in the accounts, is as
conclusive asupon any other question of fact. Parker v. Eaton, 25
Barb., 122; Glackin v. Zeller, 52 id., 147%. Under this ruling, he must
necessarily pass upon the accounts; and it seems inconsistent to require
him so to do, when the very object of the statute was to withdraw
them from him. But equally embarrassing questions would arise, if
this phrase had been omitted; and it was therefore concluded to pro-
pose no material alteration in these sections. ]

Answer of § 2951. The defendant may, either with or without other matter
ne of defence, set forth in his answer facts, showing that the title to
real property will come in question. Such an answer must be in
writing ; and it must be signed by the defendant, ‘or his attorney or
agent, and delivered to the justice. The justice must, thereupon.

countersign the answer, and deliver it to the plaintiff.

[Co. Proc., § 55.]
46
CHAP XIX.| ANSWER OF TITLE. §§ 2952-2954.

§ 2952. In the case specified in the last section, the defendant Pavey.

7 A ‘ . . i th =
must also deliver to the justice, with the answer, a written under- ypon.

taking, executed by one or more sureties, approved by the justice ;
to the effect that, if the plaintiff, within twenty days thereafter,
deposits with the justice a summons and complaint in a new action,
for the same cause, to be brought in the proper court, as prescribed
in the next section, the defendant will, within twenty days after the
deposit, give a written admission of the service thereof. Where the
defendant was arrested in the action before the justice, the under-
taking must further provide, that he will, at all times, render him-
self amenable to any mandate, which may be issued to enforce a
final judgment in the action so to be brought. If the defendant
fails to comply with the undertaking, the sureties are liable there-
upon, to an amount not exceeding two hundred dollars.

[See the note to the next section. ]

§ 2953. The court in which a new action is to be brought, as pre- In what
court new

scribed in the last section, is the supreme court, or the county court A¢tion t
of the justice’s county, at the plaintiff's election ; except that, where Ne
the justice is a justice of the peace of the city of Buffalo, it is the

superior court of Buffalo.

[This and the last section are substitutes for Co. Proc., § 56. The
section in the former Code, as originally passed, required the new action
to be brought in the supreme court, because the county court had no
jurisdiction of such an action; but in 1851 the legislature substituted,
in the same section, the words “county court,” for “‘ supreme court,”
because, by an amendment to § 30 of the Code of Procedure, jurisdic-
tion of such an action had been conferred upon the county court.
Afterwards, in 1858, in consequence of the decision in AKundolf v.
Thaiheimer, 12 N. Y. (2 Kern.), 593, the section was restored to its
original form. By the sixth article of the constitution, adopted in
1869, jurisdiction of such an action was definitively conferred upon
the county court; and there 1s now no good reason why the plaintiff
should lose his choice of a forum, because he has attempted to bring
his action in a justice’s court. In § 2952, ante, the words, ‘‘ to the pro-
cess of the court during the pendency of the action,” have been omitted
after ‘‘amenable.” The final clause, relating to proceedings in Buf-
falo, accords with § 294, ante.](*)

§ 2954. Upon the delivery of the undertaking to the justice, the when ac-

tion before
action before him is discontinued, and each party must pay his own justice to
8 discon-
costs. The costs so paid by either party must be allowed to him, if “""°*

he recovers costs in the new action, to be brought as prescribed in
47

 

(a) Section 294 is on page 196,
S§ 2955--2958. ANSWER OF TITLE. [CODE CIV, PROC.

TITLE 3,

Effect of
failure to

give
undertak-
ing.

When

title comes
in question
on plain-
tiff’s own
showing.

Pleadings
in new ac-
tion. Un-
dertaking
before
justice,
when ap-
plicable.

Answer of
title as to
one of sev-
eral causes
of action.

the last two sections. If the plaintiff fails to deposit with the jus-
tice a summons and complaint in the new action, before the expira-
tion of twenty days after the delivery of the undertaking, the de-
fendant may maintain an action against the plaintiff to recover his
costs before the justice.

[Co. Proc., § 57, amended by substituting the first part of the third
sentence, for ‘‘If no such action be brought within thirty days,” so
as to correspond to the last section but one. Section 56 of the Code
of Procedure was amended in 1858, by substituting twenty in place
of thirty days, as the time within which the plaintiff must deposit
his summons and complaint with the justice; but § 57 remained un-
altered, doubtless through inadvertence, so that this section follows

§ 56]

§ 2955. If the undertaking is not delivered to the justice, he has
jurisdiction of the action, and must proceed therein ; and the defend-
ant is precluded, in his defence, from drawing the title in question.

[Co. Proe., § 58. ]

§ 2956. If, however, it appears, upon the trial, from the plaint-
iff's own showing, that the title to real property is in question, and
the title is disputed by the defendant, the justice must dismiss the
complaint, with costs, and render judgment against the plaintiff ac-
cordingly.

[Co. Proc. § 59. See 4 Hun, 184; 8 id. 569; 9 id., 520.]

§ 2957. In the new action, to be brought after an action before
a justice is discontinued, by the delivery of an answer and an under-
taking, as prescribed in the last six sections of this act, the plaintiff
must complain for the same cause of action only, upon which he
relied before the justice; and the defendant’s answer must set up
the same defence only, which he made before the justice. If the
action is to recover a chattel, which was replevied in the justice’s
court, each undertaking, given in the justice’s court, continues to be
valid in, and is applicable to, the new action.

[Co. Proc., § 60, amendedby omitting the reference to the court in
which the new action is to be brought, which is covered by § 2953,
ante; and by adding the last sentence. |

§ 29358. Where, in an action before a justice, the plaintiff has
two or more causes of action, and the defence, that the title to real
48
CHAP. XIX. ] ADJOURNMENTS.

§ 2959.

ABT, 1.

property will come in question, is interposed as to one or more, but
not as to all of them; the defendant may deliver an answer and under-
taking as prescribed in sections 2951 and 2952 of this act, with
respect to the cause or causes of action only, in which title will so
come in question. Whereupon the justice must discontinue the
action as to those causes of action only ; the plaintiff may commence
a new action therefor in the proper court; and the original action
must proceed as to the other causes.
[Co. Proc., § 62, first half.]

TITLE IV.
Proceedings between the joinder of issue and the trial.

ARTICLE 1. Adjournments,
2. Compelling the attendance of a witness.
3. Commission to take testimony.

ARTICLE FIRST.
ADJOURNMENTS,

Sgc. 2959. Adjournment by justice.
2960. Adjournment on application of plaintiff.
2961. Adjournment on application of defendant.
2962. Id.; undertaking thereupon.
2963. Undertaking to procure discharge of defendant from custody.
2964. When defendant to be discharged.
2965. Subsequent adjournments.
2966. Justice may impose conditions upon adjournment.
2967. Adjournment when warrant to attach absent witness is issued.
2968. Adjournment not toexceed ninety days.

§ 2959. At the time of the return of a summons, or of the join- Adjourn.
7 m

y

der of issue without process, but at no other time, the justice may, in Justice

his discretion, and upon his own motion, adjourn the trial of the
action not more than eight days, unless the defendant has been ar-
rested ; in which case, no such adjournment shall be made.

[2 R. 8., 238, Part 3, ch. 2, tit. 4, §§ 67 and 68 (3 R.S., 5th ed.,
436; 2 Edm., 254), consolidated, and amended, as required by the sub-
stitution of an order of arrest for a warrant, as the process for arrest-
ing the defendant. ]

[7] 49
8§ 2960-2961. ADJOURNMENTS. [CODE CIV. PROG.

TITLE4.

Adjourn-
ment on
eppllca-
tion of
plaintiff.

Adjourn-
ment on

§ 2960. At the time of the return of a summons, or of the
joinder of issue without process, the justice must, upon the application
of the plaintiff, adjourn the trial of the action, not more than eight
days, to a time fixed by the justice. But such an adjournment shall
not be granted unless the plaintiff or his attorney, if required by the
defendant, makes oath that the plaintiff cannot, for want of some
material testimony or witness, specified by him, safely proceed to
trial.

[Id., § 69, and subd. 3 of § 70, consolidated, and amended by requir-
ing the witness to be specified ; and so that the length of adjournment
shall be the same, where the defendant has been arrested, as in other
cases. Section 73 of the R. 8. has therefore been omitted. It was held
in Pope v. Hart, 35 Barb., 630, that the plaintiff, in an action against
a non-resident defendant, commenced by warrant, might, in a proper
case, have an adjournment, although there is no express statutory pro-
vision to that effect. ]

§ 2961. At the time of the joinder of issue, the justice must,

applica’ ,. upon the application of the defendant, adjourn the trial of the action,

of defen
ant.

upon his complying with the following requirements :

1. The defendant or his attorney must, if required by the plaintiff,
or by the justice, make oath that he verily believes that the defend-
ant has a good defence to the action, and that he cannot safely pro-
ceed to trial, for want of some material testimony or witness, specified
by him.

2. If required by the plaintiff, and the defendant has not been
arrested in the action, an undertaking must be given to the plaintiff
in behalf of the defendant, as prescribed in the next section. But
such an undertaking need not be given, where the action is to recover
a chattel.

Such an adjournment must be for such a reasonable time, fixed by
the justice, as will enable the defendant to procure the testimony or
witness.

[Section 74, and part of subd. 2 of § 70 of the R. S., amended
so as to be made applicable to all actions; also by adding the
second sentence of subd. 2; and so asto make the kind of undertak-
ing to be given depend upon the fact, whether the defendant has been
arrested, and not upon his liability to be taken in execution. If the
plaintiff wishes to secure the defendant’s body to answer the execution,
he should procure an order of arrest. That part of § 70, subd. 2, which is
not contained in the foregoing section, is revised in § 2966, post; and the

50
CHAP, XIXx.] ADJOURNMENTS. §§ 2962-2963.

ninety-days clause in § 74 is contained in § 2968, post. Held, in the
superior court of Buffalo, that a defendant is entitled to an adjourn-
ment, on the return day of the summons, without oath and without
security, unless the plaintiff requiresthem. Humburch v. Huddell, re-
ported in 19 Alb. L. J., 399.]

§ 2962. The undertaking prescribed in the last section must be
executed by one or more sureties, approved by the justice; and
must be to the effect that, if the plaintiff recovers judgment in the
action, and if, before the expiration of ten days after the plaintiff
becomes entitled to an execution upon the judgment, the defendant
removes, secretes, assigns, or in any way disposes of any part of his
property, liable to levy and sale by virtue of an execution, except for
the necessary support of himself and his family, and if an execution
upon the judgment is returned wholly or partly unsatisfied; the
sureties will, upon demand, pay to the plaintiff the sum due upon
the judgment.

[L. 1831, ch. 300, § 40(3 R.S., 5th ed., 464; 4 Edm., 474), amended
by substituting an undertaking for a bond. |

§ 2963. Where the defendant has been arrested, the trial must
be adjourned upon his application, upon the same terms, and in the
same manner, as where he has not been arrested; except that the
undertaking prescribed in the last section need not be given. A de-
fendant, who procures such an adjournment, must continue, during
the time of adjournment, in the custody -of the constable: unless he
gives an undertaking to the plaintiff, with one or more sureties,
approved by the justice, to the effect that, if the plaintiff recovers
judgment in the action; and if an execution is issued thereupon
against the person of the defendant, within ten days after the plain-
tiff is entitled to the same; and if a return is made thereto, on or
after the return day thereof, that the defendant cannot be found;
the sureties will pay to the plaintiff the amount due upon the judg
ment. If such an undertaking is given, the defendant must be dis-
charged from custody.

[Sections 71 and 77, and part of § 76 of the R. 8., with like amend-
ments. The first sentence takes mm the remainder of the provisions
revised in the two preceding sections. ] _

dl

ART. 1.

Id.; under-
taking
thereupon.

Undertak-
ing to pro-
cure dis-
charge of
defendant
from
custody.
§§ 2964-2967, ADJOURNMENTS. [CODE cIV. PROC.

TITLE 4.

When de- § 2964. If the trial of an action, in which the defendant has
fendant to

be dia. *° been arrested, is adjourned with the consent of both parties, or upon

the application of the vlaintiff, the defendant must be discharged
from custody.

[Id., § 72, first clause. The remainder of the section is provided
for in § 2902, ante.]

pub ] § 2965. The justice must, upon the application of the defendant,
adjourn- ' grant a second or subsequent adjournment of the trial of the action,

| upon the defendant’s giving security, if required, as prescribed in
' the foregoing provisions of this article, where he applies for a first
adjournment ;(and upon his proving, by his own oath or otherwise,
'to the satisfaction of the justice, that he cannot safely proceed to
( trial for want of some material testimony or witness; and that he

| has used due diligence to obtain the testimony or witness. \ But
| if the defendant has given an undertaking upon a former adjourn-

’ ment, a new undertaking need not be given, unless it is required by
‘the justice, or by the sureties in the former undertaking.

[Id., § 75 and the last clause of § 76, amended to conform to the
statute revised in § 2962, ante.]

Justice § 2966. Upon granting the defendant’s application for an ad-
may im-
itions © Journment, where the triai has been once adjourned, or where the

upon ad-

journ- plaintiff is a non-resident of the county, the justice may, in his discre-

tion, upon the plaintiff's application, direct that any witness on the
part of the plaintiff, who is in attendance, be then examined under
oath before the justice. Thereupon the testimony of the witness must
be reduced to writing, certified by the justice, and retained by him;
to be read upon the trial, with the same effect, and subject to the
same objections, as if it was then given orally by the witness.

[Id., § 70, subd. 2, last clause, amended by defining the effect of
taking the testimony. The amendments require the examination of
the witness, in the discretion of the justice; and enlarge the provis-
ions of the original, so as to embrace all kinds of actions, and an ap-
plication for a second adjournment. |

xajouen= § 2967. Where, upon a trial, a warrant of attachment is issued
when war- to compel the attendance of a witness, who has failed to appear in
Tant to at-

tach ab- obedience to a subpoena, the justice may, in his discretion, adjourn
ness is 2
issued. 5
CHAP. XIX. | ATTENDANCE OF A WITNESS.

the trial, for such a time as he deems necessary for the return of the
warrant, not exceeding five days.

[New. It was very doubtful, under the former statute, whether a
justice had power to adjourn a cause, to allow time, for the return of
an attachment ; although there was no doubt, that he could ‘hold
the cause open” for a reasonable time for that purpose. See Board
of Hwewse v. Sackrider, 35 N. Y., 154. There are many cases, where
it is more convenient to adjourn to a specified time ; and accordingly
this section expressly empowers the justice so to do. ]

§ 2968. The trial of an action shall not be adjourned to a time
beyond ninety days from the joinder of issue, without the consent
of both parties, except in one of the following cases:

1. Where a venire has been duly issued, but a jury has not been
procured, so that it is necessary to issue a new venire, or to summon
one or more talesmen, the trial may be adjourned, not more than two
days beyond the ninety days, in order to enable the jury to be pro-
cured.

2. Where a jury has not been able to agree upon a verdict, and is
discharged, the trial may be adjourned a sufficient time beyond the
ninety days, to enable a new jury to be procured, as prescribed in
title fifth of this chapter.

3. Where a warrant of attachment has been issued to compel the
attendance of a witness, as prescribed in the last section, or a warrant
has been issued to commit a recusant witness, as prescribed in title
fifth of this chapter, an adjournment made thereupon, as prescribed
by law, is not deemed a part of the ninety days.

{Id., the last four words of § 74 and § 78, amended by adding the
three subdivisions. This amendment seems to be necessary, in order
to avoid a clashing of contradictory statutory provisions. See § 2967,
ante, and §§ 2996, 2997 and 3001-3003, post.]

ARTICLE SECOND.
COMPELLING THE ATTENDANCE OF A WITNESS.

Szc. 2969. When justice may issue subpoena.
2970. Subpcena; how served.
2971. Warrant of attachment against defaulting witness.
2972. Id.; how executed; fees thereupon.
2973. Id.; when witness is in adjoining county.
2974. Fine for refusing to attend, or to testify.
2975. Id. ; how imposed, :

53

§ 2968.

ART. 2.

Adjourn-
ment not
to exceed
ninety
days.
§§ 2969-2971. ATTENDANCE OF A WITNESS. [copE crv PRoc.

TITLE 4,

When
justice
may issue
subpoena,

Subpena;
ow
served.

Warrant of
attach-
ment
against
defaulting
witness.

Sec. 2976. Minute of conviction.
2977, Execution thereupon.
2978. Money collected ; how applied.
2979. Defaulting witness liable for damages,

§ 2969. A justice of the peace may issue a subpeena, to compel a
witness to attend, in the county where the justice resides, or in an
adjoining county, but not otherwise, for the purpose of testifying
upon the trial of an action, pending before himself, or before another
justice. The subpcena may require the witness, except as otherwise
expressly prescribed by law, to bring with him any book or paper,
relating to the merits of the action. But a justice shall not issue a
subpoena to compel the attendance of a witness before another jus-
tice, unless the person applying therefor proves, by his own oath, or
the oath of another person, that an action is actually pending before
the other justice.

[2 R.S8., 240, Part 3, ch. 2, tit. 4, §§ 80 and 81 (3 R. S., 5th ed.,
439; 2 Edm., 257), amended by the addition of the second sentence,
to supply an apparent oversight in the existing statute. The qualifi-
cation refers to § 867. ](°)

§ 2970. A subpoena may. be served by a constable, or by any
other person. It must be served by reading it, or stating its con-
tents, to the witness, and by paying or tendering to him his lawful
fee for one day’s attendance as a witness. Where it is served by
a constable, his return thereto, stating the manner of service and
the sum paid, is presumptive evidence of the facts therein stated.

[Id., § 82, amended by adding the last sentence. ]

§ 2971. Where it is made to appear, to the satisfaction of the
justice, by affidavit or other proof, that a person, duly subpcenaed to
attend before him in an action, has refused or neglected to attend as
a witness in obedience to the subpcena; and no just cause for the
neglect or refusal is shown to exist ; and the party, in whose behalf
the witness was subpcenaed, or his attorney, makes oath that the
testimony of the witness is material; the justice must issue a war-
rant of attachment, directed generally to any constable of the
county, for the purpose of compelling the attendance of the witness.

[ld., § 83, as amended by L. 1834, ch. 235 ° Edm., 544), further
amended by confining the proof of the materiality of the witness, to

54

 

(a) See page 225.
CHAP, XIX.] ATTENDANCE OF A WITNESS, §§ 2972-2974.

the oath of the party or his attorney ; and by prescribing the form of
the direction of the attachment. See Rutherford v. Holmes, 66 N.
Y., 368.)

§ 2972. Such a warrant of attachment must be executed in the
same manner as an order of arrest. The fees of the justice and con-
stable for issuing and serving it, must be paid by the person against
whom it is issued, unless he shows a reasonable excuse, to the satis-
faction of the justice, for his omission to attend; in which case,
the party procuring the warrant must pay them, and, if he recovers
costs, the amount thereof must be allowed to him as part of his costs.

[Id., § 84, amended by adding the last clause, commencing with the
words, ‘‘and, if he recovers costs.”’]

§ 2973. Where the delinquent witness is within an adjoining
county, the constable, to whom the warrant of attachment is directed,
may arrest the witness in that county, and bring him before the
justice. The constable, while he is within the adjoining county for
that purpose, has all the powers of a constable of that county, with
respect to the warrant so issued to him.

[New. Under the former statutes the case was wholly ‘unprovided
for ; and as a commission could not be issued to an adjoining county,
and the justice could not send the attachment to a constable of that
county, there was apparently, until the enactment of this section, no
means of compelling the testimony of an unwilling witness residing
therein.]

§ 2974. A person, duly subpcenaed as a witness, who, without a
reasonable excuse, proved by his oath or the oath of another person,
fails to attend ; or, attending, refuses to testify; must be fined, by
the justice before whom the action is pending, for each non-attend-
ance or refusal, such a sum, not less than one dollar nor more than
ten dollars, as the justice thinks it reasonable to impose upon him,
as a fine therefor.

[Section 85 of the R.S., amended by substituting, “ must be fined”,
for “shall forfeit for the use of the poor of the town”, see § 2978,
post ; and, “one dollar”, for, “‘ sixty-two cents ;” and, “ the action is
pending”, for, “before whom prosecution therefor shall be had.”
The latter clause has given rise to considerable confusion; as it leaves
room for an implication, that a separete suit may be brought to re-
cover the fine. A similar expression, out of which a like confusion
has arisen, is to be found in § 112 of the same title of the R. S., the

55

ART. 2.

Id.; how
executed ;
fees there-
upon.

Id.; when
witness is
in adjoin-
ing county.

Fine for
refusing
to attend,
or to
testify.
§§ 2975-2976. ATTENDANCE OF A WITNESS. [copE ctv. Proc.

TITLE 4,

Id.; how
imposed.

Minute of
convic-
tion.

proceedings under which are assimilated to those under § 85 and its
associates. See post, § 3009. The whole question was elaborately
argued in Robbins v. Gorham, 26 Barb., 586; 8. C., on appeal, 25 N.
Y., 588; wherein both courts came to the conclusion, upon collating
§§ 85 and 112 with §§ 86-88, that no such action would lie. The
decision is undoubtedly correct; and the confusion would have been
avoided, if cither the court or the counsel had taken the pains to
ascertain the origin of this expression. The statute, as originally re-
ported by the revisers, contained a section, the first sentence of which
was enacted as § 86 of the R. 8. (post, § 2975); but a second sentence
provided that, if the witness was not present, a summons should be
issued against him, in the name of the overseer of the poor, upon
which the matter should be determined, etc. The second sentence
was stricken out by the legislature, although the proceeding therein
provided for was in accordance with the act of 1824, from which the
article of the R. 8. was framed. It is therefore evident that the ex-
pression, which has been changed in this section, was left in § 85 of
the R. 8., and also in § 112, merely through inadvertence. ]

§ 2975. The fine may be summarily imposed by the justice,
upon the application of the party in whose behalf the witness was
subpcenaed, at any time during the trial, when the defaulting witness
is present, and has an opportunity to be heard. If it isnot imposed
during the trial, the justice, at any time within five days after judg-
ment is rendered, must, upon the application of the party, issue a
warrant, directed generally to any constable of the county, com-
manding him to arrest the defaulting witness, and to bring him
before the justice, at a time and place therein specified, the time to
be not more than twelve days after issuing the warrant, to show cause
why a fine should not be imposed upon him.

(Substituted for id., § 86, which read as follows :

“Such fine may be imposed by the justice, if the witness be present,
and having an opportunity of being heard against the imposition
thereof.”

The history of this section is given in the note to the last section.
It was held, in Robdins v. Gorham, 25 N. Y., 588, that, under the
former statute, the justice might issue a warrant to bring a defaulting
juror (witness) before him, after the termination of the action. This
section will, it is believed, clear up the obscurity, which has heretofore
surrounded the whole subject. ]

§ 2976. The justice imposing the fine must enter in his docket-
book a minute of the conviction, of the cause thereof, of the amount
of the fine, and of the costs. The minute is deemed a judgment
against the delinquent, in favor of the officer to whom fines are

directed to be paid, by section 2875 of this act.
50
CHAP. XIX.] ATTENDANCE OF A WITNESS. 8§ 2977-2979.

{Id., § 87,amended by requiring the amount of the fine to be stated ; ones

and by substituting the final clause for, ‘the overseers of the poor
of the town.”]

§ 2977. If the whole amount of the fine and costs is not forth Bxecution
with paid to the justice, he must issue an execution, directed gener-
ally to any constable of the county, commanding the constable to col
lect the sum remaining unpaid, of the goods and chattels of the de-
linquent, within the county, and, for want thereof, to take him, and
convey him to the jail of the county, there to remain until he pays
that sum, not exceeding thirty days. Upon the delinquent being
committed to jail, the keeper thereof must keep him in close cus-

tody therein, until he is entitled to a discharge, as specified in the

execution.
(Id., § 88.]
§ 2978. The money collected by virtue of the execution must be Money
collected 5
forthwith paid by the constable to the justice. The justice must, boy ee

within ten days after he receives a fine, or any part thereof, from
the constable or the delinquent, pay the money to the officer, to whom
the fines are directed to be paid, by section 2875 of this act, for the
use of the poor.

[Id., § 89, amended by inserting “forthwith”; by specifying the
time of payment ; extending the provision to money paid by the de-
linquent to the justice; and substituting the officers named for the
overseers of the poor. See note to § 2875, ante. |

§ 2979. A person, subpoenaed as prescribed in this article, who perauting
witness

neglects or refuses to obey the subpoena, or to testify, is also liable to liable for
SOB.

the party, in whose behalf he was subpcenaed, for all damages which
the party sustains by reason of his neglect or refusal.
{Id., § 90, substituting the words, ‘‘ obey the subpoena,” for

“appear,” so as to include a refusal to produce papers, etc., as required
by a subpoena duces tecum. See § 2969, ante.]

ARTICLE THIRD.

COMMISSION TO TAKE TESTIMONY.

Sxc. 2980. Commission to examine witness upon interrogatories.
2981. Id.; orally.
2982. When and how granted.

[8] BY
§§ 2980-2982. COMMISSION TO TAKE TESTIMONY. [cops civ. proc.

TITLE 4.

Commis-
sion to
examine
witness
upon in-
terrogato-
Ties.

Id.; orally.

When and
how
granted.

SEc. 2983. Adjournment.
2984, Execution and return of commission.
2985. Receipt thereof by justice.
2986. When deposition evidence.
2987. Powers of commissioners. -

§ 2980. Where the defendant has neglected to appear upon the
return of a summons, or has failed to answer the complaint, or where
an issue of fact has been joined in an action; and it appears, by
affidavit, upon the application of either party, that a witness, not
within the county where the action is pending, or an adjoining
county, is material in the prosecution or defence of the action, the
justice may award a commission to one or more competent persons,
authorizing them, or either of them, to examine the witness under
oath, upon interrogatories to be settled by the justice, or by the
written agreement of the parties, and indorsed upon or annexed to
the commission; to take and certify the deposition of the witness ;
and to return the same by mail, addressed to the justice.

[L. 1838, ch. 243, § 2, and the amendment added to § 3 by L. 1847,
ch. 329 (3 R.S., 5th ed., 456 ; 4 Edm., 640) ; amended by substituting
the words, “by mail addressed to the justice,” for “according to the
directions given with such commission.” It is well known that the
courts are very strict and technical, with respect to the return of a
commission ; and it was held, in Smith v. Randall, 3 Hill, 495, that
the rules upon this subject are the same in a justice’s court, as in a
court of record. ‘The case itself presents an instance of the sacrifice
of substance to form. The amendment sweeps away this one fruitful
source of embarrassment. |

§ 2981. If both parties expressly consent, a commission, granted
as prescribed in this article, may issue without written interroga-
tories, and the deposition may be taken upon oral questions. In
that case, section 900 of this act applies to the execution of the com-
mission; and a copy of that section must be annexed thereto.
Notice of the time or place of the examination of a witness, by
virtue thereof, need not be given.(*)

[New. Prepared for the purpose of adapting toa justice’s court, as
far as it was deemed judicious and convenient, the provisions of
this Code, allowing a commission to issue from a court of record to
examine witnesses orally. |

§ 2982. The commission may be granted by the justice without
notice, upon the application of the plaintiff, made at the return of
58

 

(a) Section 900 is on page 227.
CHAP. x1x.] COMMISSION TO TAKE TESTIMONY. §§ 2983-2986.

. . : ART, 3.
the summons, or upon the application of either party, made at the :

time of the joinder of issue. It may also be granted at any time
after the joinder of issue, upon the application of either party,
accompanied with proof, by affidavit, that six days’ written notice of
the application has been served upon the adverse party, either per-
sonally, or by service upon the attorney, who appeared for him be-
fore the justice.

[L. 1838, ch. 243, § 3 (4 Edm., 640), as originally enacted ; amended
by allowing the commission to issue in certain cases without notice,
so asto avoid the necessity of the plaintiff's procuring an adjourn-
ment, in order to enable him to give the necessary notice; and by
prescribing the mode of serving the notice. See the next section. |

§ 2983. Where a commission is granted upon the application of Adjourn-
the plaintiff, he is entitled to one or more adjournments of the trial,
as may be necessary to procure the commission to be executed and
returned; not exceeding the length of time for which the trial

might be adjourned upon the application of the defendant.
[L. 1841, ch. 138, §1 (3 RB. S., 5th ed., 456 ; 4 Edm, 545).]

§ 2984. The commission must be executed and returned, as pre- Execution
and return
scribed in section 901 of this act; and a copy of that section must ofcomr

be annexed thereto, except that subdivision sixth thereof may be
omitted. (*)

[This and the next two sections are proposed as substitutes for L.
1838, ch, 243, § 4 (4 Edm., 641), which applies, in general terms, to a
commission issued by a justice of the peace, the provisions of law
relating to the execution and return of a commission, issued out of a
court of record. |

§ 2985. The justice, to whom the package containing the com- Receipt |
mission is transmitted by mail, must receive it from the post-office, Justice.
and open and file it, indorsing thereupon the date of his so doing. It
must remain on file with him, until the trial; but either party is

entitled to inspect it on file.

[Explaimed 1n the note to the last section.]

§ 2986. Sections 902 and 903 of this act apply to a commission, When de-

Sees ae position
issued as prescribed in this article; and to the execution thereof. A evidence.
deposition taken thereunder may be read in evidence upon the trial

59

 

(a) Section 900 is on p. 227.
§§ 2987-2988. TRIAL. [coDE crv. PROC.

TITLE 5.

Powers of
commis-
sioners.

Effect of

failure of
defendant
to appear.

by either party, and has the effect specified in section 911 of this
act,(*)

[Sufficiently explained in the note to § 2984, ante, and by a refer-
ence to the sections made applicable.]

§ 2987. Where the commission is executed within the State, the
commissioner, or, if there are two or more, a majority of them, have
the same power to issue a subpoena, to swear a witness, and to com-
pel his attendance, that a justice of the peace has, in an action pend-
ing before him.

[L. 1841, ch. 138, § 2 (3 B.S. 5th ed., 456; 4 Edm., 546), amended
by allowing a majority to thus act ; and by adding the last six words.]

TITLE V.
Trial and tts incidents.

Suc. 2988. Effect of failure of defendant to appear.
2989. When justice to try issue of fact.
2990. When jury trial may be demanded.
2991. Venire.
2992. Id.; in action between two towns, etc.
2993. Delivery, execution, and return of venire.
2994. Ballots; how prepared.
2995. Drawing jury.
2996. Talesmen.
2997 New venire.
2998. Juror’s oath,
2999. Jury to hear proofs.
3000. Witness’s oath.
3001. Witness refusing to be sworn, etc. Warrant thereupon.
3002. Contents of warrant imprisonment of recusant witness.
3008. Adjournment thereupon.
3004 Ex parte affidavit ; when evidence.
3005. Competency of witness; how determined.
3006. Constable to keep jury; his oath.
3007. Rendition of verdict ; plaintiff need not be called.
3008. Jury when to be discharged ; new venire.
3009. Fine to be imposed on defaulting juror.

§ 2988. Where the defendant makes default in appearing or
pleading, upon the return of a summons, which has been duly served
as prescribed in this chapter, the justice must hear the allegations and

proofs of the plaintiff, and render judgment according to law and

equity, as the very right of the case appears.
60

 

(a) Sections 902 and 903 are on pp. 228, 229; section 911 on p. 229.
CHAP. XIX. | TRIAL. §§ 2989-2992.

[2 R. S., 242, Part 3, ch. 2, tit. 4, § 92(3 R.S., 5th ed., 440; 2 Edm.,
259), amended by omitting the words, “or who shall have procured an
adjournment, without having joined issue;” and by the substitution
of the word, “duly”, for “personally,” in order to make the section
applicable to actions where a warrant of attachment, or a requisition
to replevy, is issued, and the summons 1s served otherwise than per-
sonally. If the defendants are sued as joint debtors, and part only
are served, the judgment must be taken against all under § 3020,
post. See2N. Y., 110. If they are severally liable, and part only
are served, judgment may be taken separately against those served.]

§ 2989, Where an issue of fact has been joined, if neither party
demands a trial by jury, the justice must try the issue, hear the
allegations and proofs of the varties, and render judgment as pre-
scribed in the last section.

[Id., § 91.]

§ 2990. After an issue of fact has been joined, and at any time
before the justice proceeds to an investigation of the merits of the
action, by swearing a witness, or receiving evidence, either party, or
his attorney, may demand a trial by jury.

[Id., § 93, amended by inserting the words, “of fact;” and substi-
tuting “ swearing” for ‘‘an examination of.”’]

§ 2991, Where a trial by jury is duly demanded, the justice
must issue a venire, directed generally to any constable of the county
wherein the action is to be tried, commanding him to notify twelve
men of the town or city where the justice resides, qualified to serve,
and not exempt from serving, as trial jurors in courts of record ;
not of kin to the plaintiff or defendant; and not interested in the
action ; to attend before the justice, at a time and place specified
therein, to form a jury for the trial of the action. But if the par-
ties agree upon a number of jurors, less than six, to try the action,
the venire must direct the constable to notify twice the number
so agreed upon.

[Id., aS 94 and 95, consolidated, and amended by inserting, “or
city”. The qualifications, etc., of jurors in courts of record are pre-
scribed in §§ 1027-1030, and 1032-1034 of this act.](*)

§ 2992. Where the action is between two towns or cities, or

between a town and a city, the venire must direct the constable to
61

 

(a) See pages 246, 248, 251, 252.

TITLES,

When
justice to
try issue of
fact,

When jury
trial may
be de-
manded.

Venire.

Id.; in

action be-
tween two
towns, etc.
§§ 2993-2995, TRIAL. [CODE. CIV. PROC.

TITLE 5,

Delivery,
execution,
and return
of venire.

Ballots;
how bre:
pared.

Drawing
jury.

notify twelve men of the county, who are qualified and not exempt,
as prescribed in the last section, and who are not interested in the
matter at issue, to form a jury for the trial of the action.

[Id., § 96, amended by adding the words, ‘‘or cities, or between a
town and a city.’’]

§ 2993. The justice must deliver the venire, or cause it to be de-
livered, to a constable of the county, disinterested between the par-
ties, who has not acted, or been employed to act, as the attorney or
agent of either party, with respect to any claim or matter in con-
troversy in the action, and to whom neither party offers any other
reasonable objection. The constable shall not notify any person,
whom he has reason to believe to be biased or prejudiced, in favor
of or against either party ; and he must, in all other respects, exe-
cute the venire fairly and impartially. He must notify the jurors
personally, and indorse upon or annex to the venire, and deliver to
the justice, a return under his hand, containing a list of the persons
notified.

[Id., §§ 97 and 98, and L. 1847, ch. 470, § 53 (3 RB. S., 5th ed., 441;
4 Edm., 591), consolidated.]

§ 2994. For the purpose of procuring a jury to try the action,
the justice must prepare, or cause to be prepared, ballots, uniform,
as nearly as may be, in appearance, by writing the name of each
person returned, who attends, upon a separate piece of paper. The
constable, in the presence of the justice, must roll up or fold each
ballot in the same manner, as nearly as may be, so as to resemble the
others, and so that the name is not visible. The ballots must be
deposited in a box, or other convenient receptacle.

[Id., § 99, remodelled, so as generally to conform the language to
that employed in this Code, in describing the jury ballots used in courts
of record ; but without materially changing the meaning. It is very
desirable, that a material difference in the mode of expression should
not exist, to leave room for doubt, as to whether the same rules and
principles govern the drawing of a jury in each case. |

§ 2995. The justice must then openly draw out, one after an-
other, six of the ballots, or such smaller number thereof as the parties
have agreed upon. If a person, whose name is drawn, is challenged

and set aside, or is excused, another ballot must be drawn; and so
62
CHAP. XIX.] TRIAL. §§ 2996-3000.

. . . ° ° TITLE 5.
on, successively, until the required number of persons is obtained.

Those persons constitute the jury to try the action.
{Id., § 100.]

§ 2996. If asufficient number of competent jurors is not drawn, Talesmen.
the justice may, in his discretion, either issue a new venire, or direct
the constable to require the attendance of such a number of tales-
men from the bystanders, or others, duly qualified, and against
whom no cause of challenge appears, as the justice deems sufficient
for the purpose.

[Id., § 101, amended verbally, and by substituting the words, “in
his discretion, either issue anew venire, or direct” for ‘ supply the
deficiency by directing.” The amendment expresses, it is believed,
the true meaning of the provision, taken in connection with the next
section, but there was room to construe the statute as meaning, that
a second venire should not be issued, till after the failure of an attempt
to procure a jury by summoning talesmen. If the latter was the
meaning, the statute should have been changed before.]

§ 2997. If the constable, to whom the venire is delivered, does New

venire,
not return it as required thereby; or if a full jury is not obtained
in the manner prescribed in the foregoing sections of this title, the
justice must issue a new venire.

[Id., § 102]

*

§ 2998. The jnstice must administer an oath or affirmation to Juror's
oath. !

each juror, well and truly to try the matter in difference between

 

 

, plaintiff, and , defendant, and, unless
discharged by the justice, a true verdict to give, according to the
evidence.

[¥d., § 103.]

§ 2999. After the jurors have been duly sworn, they must sit Bury to ,
together, and hear the allegations and proofs of the parties, which proofs.
must be made publicly, in their presence.

[Id., § 104.]

§ 3000. A person offered as a witness, must, before any testi- witness's
mony is given by him, be duly sworn or affirmed, to the effect that en
the evidence which he shall give, relating to the matter in difference

63
§§ 3001-3003. TRIAL. [CODE CIV. PROC,

TITLE 5.

Witness
refusing
to be
sworn,
etc. War-
rant there-
upon,

Contents
of war-
rant; im-
prison-
went of
recusant
witness.

Adjourn-
ment

thereupon.

 

 

between , plaintiff, and ——-————, defendant, shall
be the truth, the whole truth, and nothing but the truth.

[Id., § 108.]

§ 3001. Where a witness, attending before a justice in an action,
refuses to be sworn or affirmed in the form prescribed by law; or to
answer a pertinent and proper question ; or neglects or refuses to
produce a book or paper which he has been duly subpcenaed to pro-
duce, as prescribed in section 2969 of this act, or duly required to
produce by an order, made as prescribed in section 867 of this act ;
and the party, at whose instance he attended, makes oath that the
testimony of the witness, or that the book or paper, is so far ma-
terial, that without it he cannot safely proceed with the trial of the
action, the justice may, by warrant, commit the witness.to the jail

of the county.(*)

[Id., § 279 (3 R.S., 5th ed., 461; 2 Edm., 282), amended by adding
the second clause relating to the production of books, etc. It was
held in Lane v. Cole, 12 Barb. 680; and Bonesteel v. Lynde, 8 How.
Pr., 226, affirmed 1d., 352; that a failure to produce a document called
for by a subpoena duces tecum, issued from a court of record, is a con-
tempt of the court. Perhaps the rule wasalso applicable to a case in
a justice’s court; but the question was doubtful, and as it clearly
appeared that the rule should be so applicable, the section was so framed
as to remove all doubts upon the subject. For some important rulings
under the provisions revised in this and the next section, which are
equally applicable to the sections as they now stand, see Rutherford v.
Holmes, 66 N. Y., 368. ]

§ 300%. The warrant must specify the cause for which it is is-
sued. If it is issued for refusing to answer a question, the question
must be specified therein; if for neglecting or refusing to produce a
book or paper, the same must be described with convenient certainty.
The recusant witness must be closely confined, by virtue of the
warrant, until he submits to be sworn or affirmed, or to answer, or
to produce the book or paper required, as the case may be; or is
otherwise discharged according to law.

[Id.,§ 280, amended by inserting the provisions as to books, etc., so
as to conform this section to the last section ; and by adding the last
seven words. ]

§ 3003. The justice must thereupon, from time to time, at the
request of the party in whose behalf the witness attended, adjourn
64

 

(a) Section 867 is on page 225.
CHAP, XIX. | TRIAL. $§ 3004-3006.

the trial, until the witness testifies, or produces the book or paper
required, or dies, or becomes a lunatic, or is discharged according to
law.

[Id., § 281, amended in like manner. ]

§ 3004, An ex parte affidavit shall not be received in evidence
upon a trial, without the consent of both parties, except in a case
where it is specially allowed by law.

[Id., § 105 (3 R. S., 5th ed., 442; 2 Edm., 260), amended by the
insertion of the exception, so as to except affidavits not relating to the
merits, and cases provided for by special statutes. L. 1835, ch. 159,
L. 1858, ch. 244, and the like. See, §§ 922, 926, 927.](*)

§ 3005. An objection to the competency of a witness must be
tried and determined by the justice. Where the ground of the
objection depends upon a matter of fact, evidence may be given
thereupon, as upon any other question of fact; except that, if the
witness is examined thereupon by the party objecting, no other tes-
timony shall be received from either party as to his competency.

[Id., § 107.]

§ 3006. After hearing the allegations and proofs, the jury must
be kept together in a private and convenient place, under the charge
of a constable, until they all agree upon their verdict; and, for that
purpose, the justice shall administer to the constable the following
oath: “ You swear in the presence of Almighty God, that you will,
to the utmost of your ability, keep the persons sworn as jurors upon
this trial together, in a private and convenient place, without any
meat or drink, except such as shall be ordered by me; that you will
not suffer any communication to be made to them, orally or other-
wise; that you will not communicate with them yourself, orally or
otherwise, unless by my order, or to ask them whether they have
agreed upon their verdict, until they are discharged ; and that you
will not, before they render their verdict, communicate to any per-
son the state of their deliberations, or the verdict they have agreed
upon.”

[Id., § 109, substantially unaltered. |

[9] 65

 

(a) Sections 922, 926 and 927 are on pp. 231—233,

TITLE 5.

Ex parte

affidavit ;
when evi-
dence,

Compe-
tency of
witness ;
how de-
termined.’

Constable
to veep

jury ; his
oath.
$8 3007-3009, TRIAL. [CODE CIV. PROC.

TITLE 5.

Rendition
of verdict
plaintiff

need not b

called.

§ 3007. When the jurors have agreed upon their verdict, they

: must publicly deliver it to the justice, who must enter it in his docket-

book. It is not necessary to call the plaintiff before receiving the

verdict; and the plaintiff cannot submit to a nonsuit or withdraw
the action, after the cause has been committed to the jury.

[Id., § 110, amended by substituting the last sentence, for the
provision, requiring the plaintiff to be called and to be present,
when the verdict is received. The amendment establishes the
same rule in a justice’s court, which governs in a court of record.
The retention. in a justice’s court of the useless formality of calling
the plaintiff, for so many years after it was abrogated in courts of
record, was doubtless due to the fact, that in the former, it rested
upon a statutory enactment, the repeal of which no one had any special
interest in procuring. |

Jury when § 3008. Where the justice is satisfied that the jurors cannot agree

to be dis-
charged;
new
venire.

Fine to bi
imposed

upon a verdict, after having been out a reasonable time, he may
discharge them, and issue a new venire, returnable within forty-
eight hours; unless the parties consent, and their consent is entered
in the justice’s docket-book, that the justice may render judgment
upon the evidence already before him; which he may do, in that
case.

[Id., § 111, amended _by adding the words, “and their consent is
entered in the justice’s docket-book.’’|

e § 3009. A person duly notified to attend as ajuror, who fails to

ondefault- attend, or, attending, refuses to serve, without a reasonable excuse,

ing juror.

proved by his oath, or the oath of another person, is liable to the
same fine, to be imposed and collected, with costs, in like manner,
and applied to the same use, as is prescribed in article second of title
fourth of this chapter, with respect to a person subpoenaed as a wit-
ness, and not attending, or attending and refusing te testify.

{Id., § 112, as remodelled by L. 1873, ch. 146 (9 Edm., 580) ;
amended so as to correspond with § 2974, ante. A statement of the
origin of the defect in the statute, which led to the enactment of the
act of 1873, will be found in the note to the last-mentioned section.
The proceedings regulated by the act of 1873 are, substantially, the
same as those for which §§ 2975, etc., ante, provide ; these are taken
into the foregoing section by the reference.]}

66
CHAP. XIX.] JUDGMENT. §§ 3010-3012.

TITLE G.

TITLE VI.
Judgment ; and docketing the same.

Sec. 3010. Judgment by confession.
8011. Id.; mode of confessing judgment.
8012. Id.; when void.
3013. Judgment of nonsuit.
8014. Judgment upon verdict, etc.
3015. When judgment to be rendered.
8016. Remitting part of verdict, etc.
3017. Transcript of judgment ; docketing the same.
8018. Id.; when execution may issue against person.
8019. Id.; in action for a chattel.
3020. Judgment against joint debtors.
3021. Docketing the same ; action thereupon.
3022. Docketing judgment in another county.
8023. Justice may give transcript, after expiration of his term.

§ 3010. A justice of the peace may enter a judgment upon the Jadgment
confession of the defendant, in any case, where the amount con- fession.
fessed does not exceed the sum of five hundred dollars, with such a
stay of execution, if any, as is agreed upon by the parties to the
judgment.

[2 R. S., 245, Part 3, ch. 2, tit. 4, § 113 (3 R. §., 5th ed., 443; 2
Edm., 262), as modified by Co. Proc. § 53, subd. 8; amended by sub-
stituting the word, ‘‘to,” for “interested in,” after ‘‘ parties.”’]

§ 3011. A judgment upon confession shall not be rendered, ta; moae
: 58 . p of confess-
unless the following requisites are complied with: ing judg-

1. The defendant must personally appear before the justice. ss
2. The confession must be in writing, signed by the defendant,
and filed with the justice.
3. If the judgment is confessed for a sum exceeding fifty dollars,
the confession must be accompanied with the affidavit of the defend-
ant and of the plaintiff, stating that the defendant is honestly and
justly indebted to the plaintiff in the sum specified therein, over and
above all just demands which the defendant has against the plaintiff ;
and that the confession is not made or taken with intent to defraud
any creditor.

[Id., § 114.]

§ 3012. A judgment confessed, otherwise than as prescribed in Tas when’
. s . . vold.
the last section, is void, as against every person, except a purchaser

67
§§ 3013-3014. JUDGMENT, [CODE CIV. PROC.

TITLE 6,

Judgment
of non-
suit.

Judgment
upon ver-
dict, etc.

in good faith of property, real or personal, thereunder, and the de-
fendant making the confession.

(Id. § 115.]

§ 3013. Judgment of nonsuit, with costs, must be rendered
against a plaintiff prosecuting an action before a justice of the
peace, in either of the following cases:

1. If he discontinues or withdraws the action.

2. If he fails to appear within one hour after the summons is
returnable, or within one hour after the time to which the trial has
been adjourned.

8. If he is nonsuited upon the trial.

{Id., § 119, amended by consolidating subd. 2 and 3, and omitting
subd. 5, which read as follows: “If he shall not appear on the coming
in of the jury to hear their verdict.” See § 3007, ante, and note, ]

§ 3014. Where a verdict, or the decision of the justice upon a
trial without a jury, is rendered in favor of either party, the justice
must render judgment against the adverse party in conformity
thereto, with costs, except as is otherwise specially prescribed by
law.

{Substituted for id., §§ 120 and 121, which read as follows :

Ҥ 120. Judgment for the defendant, with costs, shall be rendered,
whenever a trial has been had, and it be found by verdict, or by the
decision of the justice, that the plaintiff has no cause of action
against the defendant.”

“$8 121. If upon the trial of the cause, or upon an ex parte hearing,
in those cases where it may be had on the defendant’s failing to appear,
a sum, in debt or damages, shall be found in favor of the plaintiff,
then judgment shall be rendered against the defendant for such debt
or damages and the costs.”

These sections manifestly failed to include many cases, even before
the jurisdiction of a justice’s court was extended, by the acts passed
since the enactment of the Revised Statutes ; and when this Code was
enacted, they had become wholly insufficient. Judgment upon the
failure of the defendant to appear or answer, is fully provided for in §
2988, ante. The words, “ except as is otherwise specially prescribed by
law ”, refer to cases, where the judgment does not strictly conform to
the verdict (as where the prevailing party remits a part of the ver-

* dict, post, § 3016); or where costs do not follow the recovery (as

where an offer has been made, etc.) ; or where a party dies before the
verdict (see § 765) and the lke. The justice may enter a judgment,
in an action for a personal injury, where a party dies after verdict, or
decision, § 764, but ho cannot enter judgment in any case, where
a party dies before the verdict or decision, § 765. These two sections
are made applicable to these courts by § 3347, subd. 6.](*)

68

 

(a) See page 210, and page 360.
CHAP. XIx.] DOCKETING JUDGMENT. §§ 3015-3017.

§ 3015. Where the plaintiff is nonsuited, or discontinues or
withdraws the action; or where judgment is confessed, or a verdict
is rendered ; or where, at the close of the trial, the defendant is in
custody ; the justice must forthwith render judgment, and enter it in
his docket-book. In every other case, he must render judgment
and enter it in his docket-book, within four days after the cause has
been finally submitted to him.

[Id., § 124. See Keating v. Serreil, 5 Daly, 278; and 1 Sheld. 379.]

§ 3016, Where a verdict, or the decision of the justice upon a
trial without a jury, is rendered in favor of either party for a sum
of money, the prevailing party may remit any portion thereof, and
take judgment for the residue.

[Id., § 125, amended, so as to recognize the right of a party to remit
a part of the verdict in any case, as well as where it is for a sum ex-
ceeding the jurisdiction of the justice, in accordance with the ruling
in Clark v. Denure, 3 Denio, 319.]

§ 3017. A justice of the peace who rendersa judgment, except
in an action to recover a chattel, must, upon the application of the
party in whose favor the judgment was rendered, and payment of
the fee therefor, deliver to him a transcript of the judgment. The
county clerk of the county, in which the judgment was rendered,
must, upon the presentation of the transcript, and payment of the
fees therefor, indorse thereupon the date of its receipt, file it in his
office, and docket the judgment, as of the time of the receipt of the
transcript, in the book kept by him for that purpose, as prescribed
in article third of title first of chapter eleventh of this act. Thence-
forth the judgment is deemed a judgment of the county court of
that county, and must be enforced accordingly ; except that an exe-
cution can be issued thereupon only by the county clerk, as prescribed
in section 3043 of this act, and that the judgment is not alien upon
and cannot be enforced against, real property, unless it is for twenty-
five dollars or more, exclusive of costs.(*)

[Co. Proc., § 63, first two and last sentences, amended by inserting
the words, ‘‘ except in an action to recover a chattel ;” by confining
the power to issue the execution to the county clerk; thus settling,
in the negative, the question, whether an attorney can issue an execu-
tion, in accordance with the ruling in Thompson v. Jenks, 2 Abb. Pr.,
N.8., 229, and Brush v. Lee, 3 1d., 204; 8. C., 36 N. Y., 49.]

69

 

(a) Section 3043 will be found on p. 356; it was not deemed necessary to copy the pro-
visions of ch ‘11, tit. 1, art. 8, although referred to in this section, as they do not relate
to any thing to be done by the justice or in his court.

TITLE 6.
When
judgment
to be
rendered.

Remitting
part of
verdict,
etc.

Transcript
of judg-
ment;
docketing
the same.
§§ 3018-3019. DOCKETING JUDGMENT. [CODE CIV. PROG.

rs a § 3018. If the action, in which the judgment is rendered, is one

may iss of the actions specified in subdivision first or second of section 2895

person. of this act, or if an order of arrest was granted, and was executed,
in a case specified in subdivision third of that section, and, in either
case, if the defendant is a male person, the justice must insert, in
each transcript given by him, as prescribed in the last section, the
words, “defendant liable to execution against his person”; and a
like note must also be made in the docket of the judgment, made
by the county clerk.

[New ; intended to supply a casus omissus in the former statute,
which provided no mode whereby a county clerk could officially ascer-
tain, whether he was authorized to issue an execution against the
body.]

ae § 3019. A justice of the peace, who renders judgment for a

meee chattel, which has been delivered to the unsuccessful party, or for the
value thereof, in case a return thereof cannot be had, must, where
the value exceeds twenty-five dollars, upon the application of the
party in whose favor the judgment was rendered, and payment of
the fee therefor, deliver to him a transcript of the judgment, stating
the particulars thereof. The county clerk of the county, in which
the judgment was rendered, must, upon the presentation of the
transcript, and payment of the fees therefor, indorse thereupon the
date of its receipt, file it in his office, and docket the judgment, as
of the time of the receipt of the transcript, in the book kept by him
for that purpose, as prescribed in article third of title first of chap-
ter eleventh of this act, and must also enter in the docket the par-
ticulars of the judgment, as stated in the transcript of the justice.
Thenceforth the judgment is deemed a judgment of the county
court of that county, and must be enforced accordingly ; except that
an execution can be issued thereupon only by the county clerk, as
prescribed in section 3043 of this act.

[New. The former statute made no provision for docketing a judg-
ment in an action for a chattel, or for issuing an execution thereupon
by the county clerk. It 1s believed that this section provides for the
only case, where it is necessary that any special provision therefor
should be made. Unless the chattel has been delivered to the unsuc-
cessful party, the rights of a party, who recovers a judgment in such
an action, are sufficiently protected by the ordinary execution to be
issued by the justice.]

70
CHAP. XIX.] DOCKETING JUDGMENT. §§ 3020-3021.

§ 3020. Where an action is brought against two or more per-
sons, jointly indebted upon contract, and the summons is served upon
one or more, but not upon all of them, if the plaintiff recovers judg-
ment, it must be entered against all, in the mode prescribed in sec-
tion 1932 of this act. Sections 1933, 1934, and 1935 of this act
apply to such ajudgment, and to each execution issued thereupon ;
except that, where the justice or the county clerk issues the execu-
tion, he must make the indorsement prescribed in section 1934 of
this act.(*)

Fate for §§ 122 and 123 of the R. S., and see id., §§ 141
and 142. The effect of this section is merely to make the provisions,
relating to an action brought against joint debtors in a court of record,
and to the judgment and execution thereon, applicable to proceed-
ings in a justice’s court. |

§ 3021. The justice who gives a transcript of a judgment, taken
as prescribed in the last section, must distinctly designate, in the
transcript, each defendant who was not summoned. Thereupon the
clerk, who dockets the judgment, must make in the docket, under or
opposite the name of each defendant not summoned, an entry, as
prescribed in section 1936 of this act; and the provisions of that
section apply to the judgment so docketed. An action, upon a
judgment so docketed, can be maintained in a justice’s court against
the defendants summoned, only in a like case, and with like effect,
as if they were the only defendants in the original action. An
action may be maintained against the defendants not summoned, as
prescribed in section 1937 of this act, in any court having jurisdic-
tion thereof; and the plaintiff is entitled to costs, upon recover-
ing final judgment therein, where the sum remaining unpaid is
twenty-five dollars or more.(*)

[New. The principal object of this section is to settle the vexed
question, under the former statute, whether a justice’s court or a
county court had jurisdiction of an action to charge the remaining
defendants. In Johnson v. Smith, 14 Abb. Pr., 421, it was held, that
a justice had such jurisdiction; and in Ticknor v. Kennedy, 4 Abb.
Pr., N.S., 417, it was held that the county court had no jurisdiction
under Co. Proc., § 375, because the judgment was not taken under id.,
§ 136. It is conceived that the latter case, if it truly stated the
former rule of law, would have led to so many inconveniences, that
the principle which it established, was properly changed by express
legislatioa. | :

v4.

 

(a) The sections referred to are on p. 313. (b) Sections 1936 and 1937 are on page 314.

TITLE 6.
Judgment
against
joint
debtors.

Docketing
the same;
action
thereupon.
§§ 3022-3023. DOCKETING JUDGMENT. [copr civ. Proc.

“TITLE 6. é meee hr 74;
Doeketing § 3022, The clerk, with whom 4 transcript given by a justice is
judgment

in another filed, as prescribed in either of the foregoing sections of this title
county.

must furnish to any person applying therefor, and paying the fees
allowed by law, one or more transcripts of the docket of the judg-
ment, attested by his signature. A county clerk, to whom such a
transcript is presented, must, upon payment of the fees therefor,
immediately file it, and docket the judgment in the appropriate
docket-book kept in his office, in like manner as the judgment was
docketed by the first county clerk. The judgment, when docketed
as prescribed in this section, has the like effect, with respect to the
enforcement thereof, or any proceedings thereunder, or by virtue
thereof, in the county where it was so docketed, as if it was rendered
by a justice of the peace of that county, and docketed upon filing
his transcript; except that where an application for leave to issue an
execution is necessary, it must be made to the county court of the
county where the judgment was rendered.

[Co. Proc., remainder of § 63, and last clause of § 284, amended by
substituting the first clause of the last sentence for “with the like
effect, in every respect, as in the county where the judgment was ren-
dered, except,’ etc. This expression was very obscure, and opened
the door to a conflict of jurisdiction, in certain cases, between the
county courts of the two counties. Probably the legislature meant,
that any question, respecting the docket, or the effect thereof, or the
execution, or any proceedings thereunder, which might be determined
by motion, should be determined in the county court of the county,
wherein it arose ; and accordingly this section is so framed, as to carry
out that idea. This clause also renders it unnecessary to re-enact 2
R. S., 246, Part 3, ch. 2, tit. 4, §§ 116,117 (3 R. S., 5th ed., 444; 2
Edm., 263). |

Justice

may give § 3023. A justice of the peace, whose term of office has expired,
transcript,

after ex. | may make a transcript of a judgment rendered by him, as prescribed
iration oO

isterm. in either of the foregoing sections of this title.

[New; in accordance with Maynard v. Thompson, 8 Wend., 393).]
72
CHAP. XIx.] EXECUTIONS. §§ 3024-3025.

“TITLET,
TITLE VIL
Executions.

Sxc. 3024. When justice may issue execution.
3025. General requisites of execution.
8026. Execution upon judgment for money.
3027. Renewal of execution.
8028. Property exempt from execution.
8029. Indorsement of levy; notice of sale.
3030. Mode of levy and sale.
8031. Return of execution.
8032. Execution against the person ; imprisonment of judgment debtor.
3033. When judgment debtor to be discharged.
8034. Affidavit ; discharge.
8035. Penalty for not discharging.
3086. Affidavit a defence to action for escape.
3087. Discharge not to effect judgment.
8038. Execution upon judgment in action for a chattel.
3039. Action against constable for not returning execution.
8040. Constable not to act under execution after return day.
3041. Action against constable for money collected.
3042. Duty of constable whose term of office has expired.
3043. Execution upon judgment docketed with county clerk.

§ 3024, At any time within five years after entry of a judg- When
ao Une : , j 3 justice
ment, the justice of the peace, who rendered it, being in office, may may issue

issue an execution thereupon, unless it has been docketed in the
county clerk’s office.

[Co. Proc., § 64, subd. 12, first clause, and part of subd. 13, amended
by inserting the words, “being in office.” See § 3017, ante, regulat-
ing an execution upon a judgment docketed in the county clerk’s
office. As to the power of a justice whose term of office has expired,
to issue or renew an execution, see § 3027, post, and note.]

§ 3025. An execution, issued by a justice, must be directed gen-

General
erally to any constable of the same county. It must intelligibly of execu:
on.

describe the judgment, stating the names of the parties in whose
favor, and against whom, the time when, and the name of the
justice by whom, the judgment was rendered; and it must be made
returnable to the justice, within sixty days after its date.

[2 R. S., 249, Part 3, ch. 2, tit. 4, § 131, first clause (3 R.S., 5th ed.,
446 ; 2 Edm., 266), and Co. Proc., § 64, subd. 12, last clause ; amended
by the insertion of the first part of the second sentence, which cor-

responds to the requisites of executions issued from courts of record.
For other requisites of mandates, see § 3135, post.]

[10] 73
§§ 3026-3027. EXECUTIONS. [Cope crv. PROC.

TITLE?

Execution
upon judg-
ment for
money.

Renewal
of execu-
tion.

§ 3026, An execution, issued upon a judgment for a sum of
money, must specify, in the body thereof, the sum recovered, and
the sum actually due upon the judgment at the date of the execution ;
and, except in a case where special provision is otherwise made by law,
it must, substantially, require the constable to satisfy the judgment,
together with his fees, out of the personal property of the judgment
debtor within the county, not exempt from levy and sale by virtue
of an execution ; and to bring the money before the justice, by the
return day of the execution, to be rendered, by the justice, to the
party who recovered the judgment. If the judgment was recovered
against a male person, in either of the actions specified in subdivis-
ion first or second of section 2895 of this act; or if an order of
arrest was granted, and was executed, in a case specified in subdivis-
ion third of that section, the execution must also command the con-
stable, if sufficient personal property cannot be found to satisfy the
judgment, to arrest the judgment debtor, and to convey him to the
jail of the county, there to remain until he pays the judgment, or is
discharged according to law. If the judgment was rendered in an
action to recover a penalty or forfeiture given by a statute of the
State, the justice must indorse upon the execution a reference to the
statute, as prescribed in section 1897 of this act, with respect toa
copy of the summons.(*)

[Section 131 of the R.S., last clause, amended verbally, and as
required by the changes made by the non-imprisonment act of 1831,
and so as to adapt this section to § 2895, ante. The last sentence takes
in a part of § 143 of the R. §., the remainder of which will be found
in § 3032, post. |

§ 3027. After the return, wholly or partly unsatisfied, of an
execution, issued by a justice of the peace, he may, from time to
time, within five yearsafter the judgment was rendered, issue a new
execution, or renew the former execution. An execution is renewed
by a written indorsement thereupon to that effect, signed by the jus-
tice, and dated upon the day when it is made. If part of the execu-
tion has been satisfied, the indorsement must state the sum remaining
due. Each indorsement renews the execution for sixty days from
the date thereof. A justice whose term of office has expired may
thus issue or renew an execution.

74

 

(a) Section 1897 is on page 295.
CHAP. XIX. | EXECUTIONS. §$§ 3028-3030.
[Id., $§ 145 and 147; and 2 R. S., 271, Part 3, ch.2, tit. 4, § 258 7"
(3 B.S., Sth ed., 459 5; 2 Edm., 279), as modified by L. 1840, ch. 347;
L. 1846, ch. 276; I. 1857, ch. 512 (3 R. 8., 5th ed., 446,448; 4 Edm.,
548); L. 1879, ch. 805, and Co. Proc., § 64, subd. 12; consolidated.
See per Dentro, J., in Morse v. Goold, 11 N. Y., 281. The act of 1846
was further amended by L. 1879, ch. 305, which was not repealed by
the general repealing act of 1880. See L. 1880, ch. 245, §1, subd. 23 ;
and § 8, subd. 9. By the latter provision, it would seem that the act
of 1879, is not expressly repealed: but it is nevertheless repealed by
implication, as §§ 3020 and 3027 of this Code establish a different rule.
The only important question which might arise under the act of 1879,
is whether a justice, who has gone out of office, can issue an execution,
where a previous execution has not been issued and returned. For
the reason stated, this question must be answered in the negative.](*)

§ 3028. The same personal property is exempt from levy and Property

7 . 5 era ah : fi
sale, by virtue of an execution issued by a justice of the peace, which cution.

is exempt from levy and sale, by virtue of an execution issued out of
the supreme court, and in the like cases, and under the same cir-
cumstances, as prescribed in sections 1389, 1390, 1891, 1392, 1393,
and 139+ of this act, and the other special provisions of law, relating

to such an exemption.(°)
[Substituted for id., § 169, as amended by subsequent acts. ]

§ 3029. A constable, who takes personal property into his cus- Indorse-

2 2 : f Tae
tody, by virtue of an execution, must indorse upon the execution the ly 3, o¢

time of levying upon it. He must immediately post conspicuously, sia
in at least three public places of the city or town, in which the
property was taken, written or printed notices, signed by him,
describing the property, and specifying the place, within the same city
or town, where, and the time, not less than six days after the post-
ing, when, it will be exposed for sale.

[Id., § 148, amended by substituting ‘six ” for’ five,” so that the
notice of sale will be the same, as upon an execution issued out of a
court of record. See Havens v. Harrison, 5 ILun, 178.]

§ 3030. The provisions of sections 1384, 1385, 1386, 1387, 1405, Mode ot

1 d
1409, 1410, 1411, 1412, and 1428 of this act, substituting the con- sale.
stable for the sheriff, apply to and govern the levy upon and sale of
personal property, by virtue of an execution issued by a justice of

the peace; except where a different rule is prescribed in this act.(°)

[The sections referred to are those, which regulate the levy upon
and sale of personal property, under an execution issued out of a court

75

(a) The general repealing act of 1880 is at the end of Part III.
(b) The sections referred to are on pp. 263.
(c) The sections referred to are on pp. 259, 263, 265.
§§ 3031-3033. EXECUTIONS. [CODE CIV. PROC.

TITLE7.

Return of
execution.

Execution
againstthe
person;
imprison-
ment of
judgment
debtor.

When
judgment
debtor to
be dis-
charged.

of record. Section 1387 renders it unnecessary to retain § 150 of the
R. 8.; and § 1428 supersedes the first clause of § 149 of the R. S.]

§ 3031. The constable must return the execution to the justice,
and pay to him the amount of the judgment, with interest, or so
much thereof as he has collected; returning the surplus, if any, to
the person from whose property it was collected.

[Section 149 of the R. 8., last clause, amended by substituting the
words, ‘amount of the judgment with interest, or so much thereof as
he has collected,” for “debt or damages, and costs levied,” and the
last six words for “against whom the execution issued.” The first
sentence of § 149, and the whole of § 150, are covered by the general
provisions of § 3030, ante. ] ,

§ 3032. For want of sufficient personal property, whereon to
levy, the constable must, if the execution requires it, arrest the judg-
ment debtor, and convey him to the jail of the county. The keeper
of the jail must thereupon keep the judgment debtor in custody, in
all respects as if the execution was issued out of the supreme court,
until the judgment and the fees of the constable are paid; or until
the judgment debtor is thence discharged, in due course of law; ex-
cept that if the execution has an indorsement, showing that the
judgment was rendered in an action for a penalty or forfeiture, given
by a statute of the State, the sheriff shall not admit the judgment
debtor to the liberties of the jail.

[Id., § 151, amended by adding the last sentence, which covers so
much of id., § 143, as is not included in § 3026, ante. The provisions
of § 143 of the R. 8. have been extended by subsequent statutes to
other kinds of penalties; and it seems proper that they should em-
brace all actions for penalties, as the judgment is always strictly
punitive, ]

§ 3033. If the person so committed to jail has a family within
the State, for which he provides, he must be discharged, after remain-
ing in custody either with or without being adinitted to the jail liber-
ties thirty days; otherwise, he must be discharged after so remaining
sixty days.

[Id., § 152, amended by omitting the words, ‘‘and be not a free-
holder,” after “ provides;” by inserting the clause as to jail liberties;
and by substituting “otherwise” for “and if he have no family, and
be not a freeholder.” Now that a justice’s judgment exceeding $25

can be made a lien upon real property, and collected therefrom, there
1s no longer any reason for the retention of the exception of a freeholder,

76
CHAP. XIX.] EXECUTIONS. 8§ 3034-3038.

= . os . si . TITLE 7.
which was inserted when there was no provision for making a justice’s

judgment a lien upon real property.]

§ 3034. In order to procure a discharge, as prescribed in the last AMdavit ;
ischarge.

section, the prisoner must make, and deliver to the sheriff or jailor,

an affidavit, stating the facts which entitle him thereto, according to

the provisions of that section. Upon receiving such an affidavit

the sheriff or jailor must forthwith discharge the prisoner from his

custody. He must thereupon deliver the affidavit to the clerk of the

county, who must file it in his office, without fee.

[Id., §§ 153 and 154.]

§ 3035. A sheriff or jailor, who refuses to discharge the prisoner, Penalty
upon receiving such an affidavit, forfeits twenty-five dollars for each fiscbare-
day, during which he detains the prisoner; to be recovered by the
latter, in addition to any damages, which he sustains by reason of

the false imprisonment.
[Id., § 155.]

§ 3036. The receipt of such an affidavit is a defence, to an Affidavit
a defence

i i i 1a i to action
action brought against the sheriff or jailor, by reason of the prison- #0)stcape,

er’s discharge.

[Id., § 156, remodelled without substantial change; except that the
provision as to pleading, has been omitted, as inapplicable under the
present system; and the clause making the affidavit, or a certified
copy thereof evidence, has been omitted, as covered by § 933. ](*)

§ 3037." Notwithstanding the discharge of a judgment debtor, Discharge
no
as prescribed in the last four sections, the judgment remains valid as 79h vent.
against his property; and a new execution may be issued accord-

ingly, as if he had not been imprisoned.
[Id., § 157.]

§ 3038. In an action for a chattel, the possession of which has Exeoution
not been delivered to the prevailing party, an execution, for the deliv- judament
ery of the possession thereof to him, as well as for any damages recov- chattel.
ered by him, may be issued by the justice ; unless the judgment has
been docketed in the county clerk’s office, as prescribed in title sixth
of this chapter. It must be to the same effect, and executed in the

va

 

(a) See page 235.
§§ 3039-3042. EXECUTIONS. [CODE CIV, PROC.

TITLE7,

same manner, as a like execution issued upon a judgment rendered
in the supreme court; except that it must be directed generally to
any constable of the county; and that the direction to satisfy a sum
of money, out of the property of the judgment debtor, must be in
the form prescribed in this title for a like direction, where an exe-
cution is issued by a justice of the peace, upon a judgment for asum
of money.
[Substituted for part of L. 1860, ch. 131, § 10 (5 Edm., 136), as
amended by L. 1865, ch. 616. See §§ 1731 and 3026.](*)
pote § 3039. If a constable fails to return an execution within five
forstable days after the return day thereof, the party, in whose favor it was

turning ; ‘i . .
execution. issued, may recover, in an action against the constable, the amount

lorued 24. money ; or if it was for the delivery of the possession of a chattel,
barb - b02- the value of the chattel, as specified in the judgment, together with
the damages and costs awarded thereby; and, in either case, with

of the execution, if it was issued upon a judgment for a sum of

interest from the time when the judgment was rendered.

[Section 159 of the R. S., amended by inserting the clause relating
to a chattel; and by omitting the last clause, allowing execution to
issue, ag unnecessary. ]

Constable § 3040. A constable shall not levy upon or sell property, or arrest

not to act

or eas defendant, or take possession of a chattel, by virtue of an execution,

eer icy. after the time limited therein for its return, unless the execution has

been renewed ; nor shall he do any act under a renewed execution,
after the expiration of the time for which it has been renewed.

[Id., § 161, amended by inserting the words, “or take possession of
a chattel; ” and by substituting the word “arrest” for ‘‘imprison.”]

Action § 3041. Where money, collected by a constable upon an execu-
agains

constable +3 + i i di a 1

for money tion, is not paid over by him according to law, any person entitled
collected.

thereto may maintain an action in his own name, upon the instrument
of security given by the constable and his sureties ; and may recover
therein the sum so collected, with interest from the time when it
was collected.

[Id., § 163.]
Duty of § 3042. A constable, to whom an execution is delivered, whose
constable . ‘
whose term of office expires on or before the return day thereof, must pro-
office has 78
expired.

 

(a) Section 1L71lis onp. 284,
CHAP. XIX. APPEALS.

ceed thereupon in the same manner, as if his term of office had not
expired; and he and his sureties are liable for any neglect of duty,
with respect to the execution, or for money collected thereunder,
or for damages sustained by reason of any act done by the constable,
touching the execution, in the same manner, and to the same extent,
as if his term of office had not expired.

[Id., §§ 285 and 286 (3 RB. S., 5th ed., 461; 2 Hdm. 283), amended
by substituting the words, “‘on or before the return uav thereof,” for
“before the time within which the collection or return of such execu-
tion is required by law;” and by the insertion of the words, “ or for
damages sustained by reason of any act done by the constable, touch-
ing the execution,” which are rendered necessary by the extension of
the liability of constables’ sureties, created by L. 1872, ch. 788
(9 Edm., 481).]

§ 3043. Where a judgment, rendered by a justice of the peace,
has been docketed with a county clerk, upon the filing either of a
transcript from the justice’s docket, or of a transcript from the
clerk’s docket of another county, the execution, to be issued there-
upon by the county clerk, must be in the same form, and executed
in the same manner, as an execution issued upon a judgment of the
county court ; except as otherwise prescribed in section 1367 of this
act; and except, also, that, where the judgment is for a sum less
than twenty-five dollars, exclusive of costs, the direction to satisfy
the judgment out of the real property of the judgment debtor must
be omitted. In that case the provisions of this act, relating to the
satisfaction of an execution out of the judgment debtor’s real prop-
erty, are not applicable thereto. (*)

BT Proc., § 64, subd. 13, amended by inserting the reference to §
1367.

TITLE VIII,

Appeals.

ARTICLE 1. Appeals generally.
2. Appeal where a new trial is not had in the appellate court.
8. Appeal for a new trial in the appellate court,

79

 

(a) Section 1367 is on p. 258.

§ 3043.

TITLE 8.

Execution
upon judg-
ment
docketed
ee 1
county!
clerk.
§§ 3044-3046. APPEALS. [copE CIV. PROc,

TITLES,

Justice's
judgment
reviewed.
by appeal,

Who may
appeal.
To what
court 1
appeal to
be taken.

Appeal;
eon and
how
taken.

ARTICLE FIRST.
APPEALS GENERALLY.

Sxc. 3044. Justice’s judgment reviewed by appeal.
8045. Who may appeal. To what court appeal to be taken.
3046. Appeal; when and how taken.
8047. Service of notice upon justice; payment of costs and fee.
3048. Service of notice upon respondent.
3049. Amendment when allowed.
3050. Undertaking to stay execution upon judgment.
3051. Proceedings; how stayed.
8052. Id. ; when justice is dead, etc,
8053. Return.
3054. Id. ; when justice has gone out of office.
3055. Further return ; how compelled.
8056. Id.; when justice is dead, ete.
3057. Proceedings when error in fact is alleged.
3058. Restitution upon reversal.
3059. Setting off costs and recovery.
3060. Certain sums may be included in disbursements.
3061. Judgment-roll.

§ 3044. The only mode of reviewing a judgment, rendered by a
justice of the peace in a civil action, is by an appeal, as prescribed
in this title.

[Co. Proc., § 351, last clause, so far as it relates to courts of justices
of the peace. |

§ 3045. An appeal may be taken by any party aggrieved by the
judgment. Wherethe judgment was rendered by a justice of the
peace of the city of Buffalo, the appeal must be to the superior court
of that city; in every other case, it must be to the county court of
the county where the judgment was rendered.

[Co. Proc., § 325, and so much of § 352, as relates to the court, to
which appeals are to be taken from judgments rendered by justices of
the peace. See 19 Hun, 88.]

§ 3046, An appeal must be taken, within twenty days after the
entry of the judgment in the justice’s docket; except that, where a
defendant appeals from a judgment rendered in an action, wherein
he did not appear, and the sammons was not personally served upon
him, the appeal may be taken within twenty days after personal ser-
vice upon him, on the part of the plaintiff, of written notice of the
entry of the judgment; but not after the expiration of five years

80
CHAP. XIX. | APPEALS.

from the entry of the judgment. An appeal is taken by serving
upon the justice by whom the judgment was rendered, and upon the
respondent, a written notice of appeal.

[Co. Proc., § 353, and part of § 354, entirely remodelled, but un-
changed in substance, except as follows. The words, ‘the entry of ”
have been inserted, in accordance with Fuchs v. Pullman, 2 Daly, 210.
The phrase, “ personal service upon him, on the part of the plaintiff,
of written notice of the entry,” hag been substituted for “personal
notice,” so as to conform the statute to the ruling in Pearson v.
Lovejoy, 53 Barb. 407. The requirement, that the notice of appeal
shall state “ the grounds upon which the appeal is founded,” has been
omitted. Under this provision, in the former statute, the decisions
were in hopeless conflict, as to the power of the appellate court to con-
sider any alleged error, not pointed out in the notice of appeal, and as
to the degree of certainty with which the grounds of the appeal must
be stated ; and much time was consumed, in the appellate courts, in
determining questions of this class, which are, from their very nature,
of endless variety. It would be unprofitable to review, in this note,
the numerous cases on these subjects. Some of them may be found
in Wait’s Law and Practice, 2d ed., pp. 773-783, where the whole
question is fully and ably discussed. The requirement served no use-
ful purpose, which called for the preservation of such abone of conten-
tion; and upon principle, there appears to be no sufficient reason, why
the rule, governing a notice of appeal from a judgment rendered by a
court of record, should not apply to an appeal from the judgment of
a justice of the peace. The phrase, “but not after the expiration of
five years from the entry of the judgment,” has been inserted, as a
proper limitation in such cases. ]

§ 3047. Service of the notice of appeal upon the justice, must be
made by delivering it to him personally, or to his clerk, appointed
pursuant to law; but if the justice is dead, or if neither he nor his
clerk can, after reasonable diligence, be found within the county, ser-
vice of the notice upon the justice may be made, by delivering it to
the clerk of the appellate court. Unless the justice is dead, the
appellant must, at the time of serving the notice, pay to the person
to whom it is delivered the costs of the action, included in the judg-
ment, and thesum of two dollars, as the fee of the justice for making
the return.

[Co. Proe., part of § 354, first sentence, and § 359, amended by sub-
stituting ‘‘appointed pursuant to law,” for “if there be one” ; by al-
lowing the noticc to be served on the clerk of the appellate court,
when neither the justice nor clerk can, after reasonable diligence, be
found within the county, instead of upon the clerk of the county

where the justice or clerk for any cause, cannot be personally served ;
and by inserting the words, “unless the justice is dead.” ]

(tJ 81

§ 3047.

ART, 1.

Service of
notice
upon
justice;
payment
of costs
and fee.
§§ 3048-3050. APPEALS. [CODE CIV. PROC.

Preto § 3048. Service of the notice of appeal upon the respondent

notice

upon re. may be made, by delivering it, in any part of the State, to the res-

pondent personally, or in one of the following methods:

1. If the respondent is a resident of the county, by leaving it at
his residence, with a person of suitable age and discretion. If he is
not a resident of the county, and the person who appeared as his
attorney upon the trial is a resident thereof, it may be served upon
the attorney, either personally, or by leaving it at his residence, with
a person of suitable age and discretion.

2. If service within the county cannot be made, with due dili-
gence, upon the respondent personally, or in the method prescribed
in the foregoing subdivision, the notice of appeal may be served
upon him, by delivering it to the clerk of the appellate court.

[Co. Proc., § 354, the remainder of the first sentence, remodelled so
as to express more clearly 1ts supposed meaning, which, in some re-
spects, was far from being clear. See Lake v. Kels, 11 Abb., N.8.,
37.] =

amend § 3049. Where the appellant, seasonably and in good faith,

ment

Nowea. serves the notice of appeal, upon either the justice or the respondent,

but omits, through mistake, inadvertence, or excusable neglect, to
serve it upon the other, or to do any other act necessary to perfect
the appeal, the appellate court, upon proof by affidavit of the facts,
may, in its discretion, permit the omission to be supplied, or an
amendment to be made, upon such terms as justice requires.

[Co. Proc., § 327, last sentence, amended so as to conform to § 1303
of this act, which contains the corresponding regulation as to courts
of record, and by omitting the provision as to stay of proceedings.
It was held, that the failure to file the undertaking within the 20 days,
was a defect which could not be amended, because § 1303 does not
apply to justices’ courts. Scarborough vy. Dady, reported in 19 A. L,
J., 164; so of service of the notice of appeal on the adverse party ;
Roberts v. Davids, 12 Hun, 394; so of the payment of the costs and
justice’s fee ; Thomas v. Thomas, 18 Hun, 481; Eldridge v. Underhill,
17 Hun, 241. All these decisions go upon the ground that § 1303
of this act is not applicable to justices’ courts, and they are of course,
abrogated by this section.]

Pndertak —_- § 3050. If the appellant desires a stay of execution, he must give

xecution . : :
uponjudg- a written undertaking, executed by one or more sureties, approved

ment.

by the justice who rendered the judgment, or by a judge of the
appellate court, to the effect that, if the appeal is dismissed, or if
82
CHAP. XIX. ] APPEALS. §§ 3051-3052.

judgment is rendered against the appellant in the appellate court,
and an execution issued thereupon is returned wholly or partly un-
satisfied, the sureties will pay the amount of judgment, or the por-
tion thereof remaining unsatisfied ; not exceeding a sum, specified in
the undertaking, which must be at least one hundred dollars, and
not less than twice the amount of the judgment; or, if the judgment
in the justice’s court is for the recovery of a chattel, that the sureties
will pay the sum fixed by that judgment as the value of the chattel,
together with the damages, if any, awarded for the taking, with-
holding, or detention thereof. A copy of the undertaking, with a
notice of the delivery thereof, must be served with the notice of
appeal, and in like manner. Section 1335 of this act applies to such
an undertaking.(*)

[Co. Proc., § 355, last clause, and § 356, amended by inserting the
words, ‘“‘if the appeal is dismissed”; and by adding all after the
words, “ remaining unsatisfied.” The latter amendment supplies a casus
omissus in the former statute, which made no provision for the under-
taking upon appeal from a judgment in an action to recover a chattel.
The judgment against the appellant, referred to in this undertaking,
is the final judgment in the cause, and the sureties remain liable until
that is rendered. Humerton v. Hay, 65 N, Y., 380.]

§ 3051. The delivery of the undertaking to the justice or to
his clerk, appointed pursuant to law, and service of a copy thereof,
and of notice of the delivery thereof, stay the issuing of an execu-
tion upon the judgment. If an execution has been issued, the ser-
vice of a copy of the undertaking, certified by the justice or the
clerk, or accompanied with an affidavit, showing that it is a copy,
and that the original has been duly filed, upon the officer holding
the execution, stays further proceedings thereunder.

{Co. Proc., § 357, amended by allowing service on the clerk of the
justice appoin‘ed pursuant to law; and by inserting the words, “or
accompanied with an affidavit showing that it is a copy, and that the
original has been duly filed.” |

§ 3052. Where the justice is dead, or cannot, with due diligence,
be found within the county, and he has no clerk, appointed pursuant
to law, or the clerk cannot, with due diligence, be found within the
county, the undertaking may be filed with the clerk of the appel-
late court. In that case, notice of the filing must be given to the
respondent, as prescribed in section 3048 of this act, for service of

83

 

(a) See page 257.

ART. 1.

Proceed-
ings; how
stayed.

Id.;. when
justice is
dead, etc.
§§ 3053-3054. APPEALS. [CODE CIV. PROC.

 

TITLE 8.

Return,

Id.; when
justice has
gone out
of office.

a notice of appeal upon him. The filing of the undertaking has
the same effect, as the delivery thereof to the justice ; and a copy
thereof, certified by the county clerk, served upon the officer holding
an execution, has the same effect, as if it was certified, as prescribed
in the last section.

[Co. Proc., § 358, amended by the addition of the last sentence, to
supply a casus omissus in the former statute. ]

§ 3053. The justice must, after ten and within thirty days from
the service of the notice of appeal, and the payment of the costs
and fee, as prescribed in section 3047 of this act, make a return to
the appellate court, annex thereto the notice of appeal and the
undertaking, if any has been delivered to him or to his clerk, and
file the same with the clerk of the appellate court. The return
must contain all the proceedings, including the evidence and the
judgment; unless the appellant has, in his notice of appeal, de-
manded a new trial, in a case where he is entitled thereto, as pre-
scribed in article third of this title. In the latter case, the justice
must return the summons, together with each warrant of attachment,
order of arrest, or requisition to replevy, or execution granted by
him in the action, with the proof of the service thereof; the plead-
ings, or copies thereof; the proceedings upon the trial; and the
judgment; with a brief statement of the amount and nature of the
claims litigated by the parties. But he need not return the evidence,
or any part thereof, unless he is required so to do by the special
order of the appellate court.

[Co. Proc., § 360, reconstructed, but unchanged in substance ; ex-
cept by requiring the undertaking, if any, to be returned, and also
each warrant of attachment, etc.; by omitting the provision relating
to compelling a return by attachment, which is taken into § 3055,
post ; by amending the section so as to conformit to § 3068, post; and
by adding the last clause commencing “unless he is required,” etc.;
which was suggested by the case of Bala v. Rowley, 37 How. Pr.,
120.]

§ 3054. Where the justice has gone out of office, he must, never-
theless, make a return in the same manner, and his return has the
same effect, as if he remained in office.

[Co. Proc., § 361. ]
84
CHAP. xIXx.] APPEALS. §§ 3055-3058.

§ 3055. If the return is defective, the appellate court may direct
the justice to make a further or amended return, as often as is neces-
sary. The appellate court may compel the justice, by attachment,
to make and file a return, or a further or amended return. The
court is always open for those purposes. Where the justice has
removed to another county of the State, the appellate court may
compel him to make the return, as if he was still within the county
where the judgment was rendered.

[Co. Proc., § 362, the second sentence of § 360; and the last sentence
of § 363. Where the county court has not jurisdiction of the appeal
by reason of relationship, etc., notice of a motion to amend the return
must be given, in 20 days after the county judge’s certificate. Rule 48.]

§ 3056. If the justice dies, becomes a lunatic, absconds, removes
from the State, or otherwise becomes unable to make the return,
the appellate court may receive affidavits, or examine witnesses, as
to the evidence and other proceedings taken, and the judgment
rendered, before the justice ; and may determine the appeal, as if a
return had been duly made by the justice.

[The remainder of Co. Proc., § 363, amended by substituting “ be-
comes a lunatic,” for “become insane”; by inserting the word,
“absconds,” and the clause, ‘“‘or otherwise becomes unable to make
the return ”; and by allowing affidavits to be received. ]

§ 3057. Where an appeal is founded upon an error in fact in the
proceedings, not affecting the merits of the action, and not within
the knowledge of the justice, the court may determine the matter
upon. affidavits; or, in its discretion, upon the examination of wit-
nesses ; or in both methods.

[Co. Proc., § 366, third sentence, amended by adding the last clause. |

§ 3658. Where the judgment of the justice is reversed or modi-
fied, the appellate court may make or compel restitution of property
or of a right, lost by means of the erroneous judgment; but not
so as to affect the title of a purchaser, in good faith and for value,
of property sold by virtue of a warrant of attachment in the action,
or an execution issued upon the judgment. In that case, the appel-
late court may compel the value, or the purchase-price to be restored,
or deposited to abide the event of the action, as justice requires.

Six days’ notice of an application for an order for restitution must
85

ART, 1.
Further
return 5
bow com-
pelled.

Id.; when
justice is
dead, etc.

Proceed-
ings when
error in
fact is
alleged.

Restitu-
tion upon
reversal.
§§ 3059-3061. APPEALS. [CODE CLV. PROC.

TITLE 8.

Setting off
costs and
recovery.

Certain

b

cluded in
disburse-
ments.

Judgment-
roll.

be given; and if the application is granted before judgment, the
proper direction may be included therein.

[Co. Proc., § 369, amended by substituting the first two sentences,
which conform substantially to the corresponding provision for courts
of record, for “If the judgment below, or any part thereof, be paid
or collected, and the judgment be afterwards reversed, the appellate
court shall order the amount paid or collected to be restored, with
interest from the time of such payment or collection.” This pro-
vision is inapplicable to certain cases, as, for instance, where property
has been replevied and delivered to the plaintiff. ]

§ 3059. If, upon the appeal, a sum of money is awarded to one
party, and costs are awarded to the adverse party, the appellate
court must set off the one against the other, and render judgment

for the balance.

[Co. Proc. § 370. The same provision was repeated in id., § 371.]

§ 306060. Where costs are awarded to the appellant, he may in-
clude, in the disbursements upon the appeal, the costs and fee paid
to the justice upon taking the appeal; and, where the judgment
rendered by the justice was against the appellant, he may also in-
clude, in those disbursements, the costs of the action, before the
justice, which he would have been entitled to recover, if the judg-
ment of the justice had been in his favor.

[Co. Proc., part of § 371.]

§ 3061. The clerk, immediately after entering final judgment
upon the determination of an appeal, must attach together and file
such of the following papers, as were used upon the appeal, which
constitute the judgment-roll :

1. The return of the justice, or a certified copy thereof; the
notice of appeal; and the undertaking, if any has been given.

2. The verdict, report, or decision, and each offer, if any, made
as prescribed in article third of this title.

3. A certified copy of the judgment, together with each notice
of exceptions, or case, which is then on file.

4. Every other paper, then on file, and a certified copy of every
order, which in any way involves the merits, or necessarily affects
the judgment.

86
CHAP. XIX.] APPEALS. §§ 3062-3063.

ART, 2.
[Co. Proc., § 367, amended so as to vunform substantially to the cor-
responding provision for courts of record, and so as to require the un-
dertaking, and a certified copy of the judgment to be annexed to the
roll.]

ARTICLE SECOND.

APPEAL WHERE A NEW TRIAL IS NOT HAD IN THE APPELLATE COURT.

Src. 3062. Hearing of appeal ; dismissul thereof.
3063. Judgment.
8064, When new trial in justice’s court may be directed.
3065. Id. ; proceedings before justice.
3066. Costs; when awarded.
3067. Amount of costs.

§ 3062. If the case is one where the appellant is not entitled to, Hearing
of appeal;

_ or has not demanded, a new trial in the appellate court, as prescribed dismissal
in section 3068 of this act, the appeal may be brought to a hearing
in the appellate court, at any term thereof, at which such an appeal
can be heard, held after the return is filed, upon a notice by either
party, of not less than eight days. It must be placed upon the cal-
endar; and must continue thereupon, without further notice, until
it is finally disposed of. If, after being regularly placed upon the
calendar, neither party brings it to a hearing before the end of the.
second term thereafter, at which it might be noticed for hearing,

and heard, the court must dismiss the appeal, unless it directs the
same to be continued, for cause shown. If the appeal is to the
superior court of Buffalo, it must be heard at a general term
thereof.

[Co. Proc., § 364, first half, amended by confining the expression,
“general term”, to the Buffalo superior court. ]

§ 3063. In acase specified in the last section, the appeal must be Judgment.
heard upon the original papers, or a certified copy thereof; and a
copy or copies thereof need not be furnished for the use of the
court. The appellate court must render judgment according to the
justice of the case, without regard to technical errors or defects,
which do not affect the merits. It may affirm or reverse the judg-
ment of the justice, in whole or in part, and as to any or all of the
parties, and for errors of law or of fact.

[Co. Proc., § 365, and the first two sentences of § 366. ]

87
§§ 3064-3066. APPEALS. [VODE CIV. PROC.

TITLE 8,

When new
trial in
justice's
court may
be di-
rected.

Td.; pro-
ceedings
before
justice.

Costs ;
when
awarded.

§ 3064. If the appeal is taken by a defendant, who failed to ap-
pear before the justice, either upon the return of the summons, or
at the time to which the trial of the action was adjourned; and he
shows, by affidavit or otherwise, that manifest injustice has been
done, and renders a satisfactory excuse for his default; the appellate
court may, in its discretion, set aside the judgment appealed from,
or stay proceedings thereunder, and by order direct a new trial,
before the same justice, or before another justice of the same
county, designated in the order, at such a time and place, specified
in the order, and upon such terms, as it deems proper.

Co. Proc., § 366, fourth sentence, amended by inserting the clause,
“either upon the return of the summons, or at the time to which the
trial of the action was adjourned,” in order to settle the conflict be-
tween Willams v. McCauley, 3 E. D. Smith, 120; Bunker v. Latson, 1
id., 410; Rawson v. Grow, 4id., 18; Hdwards v. Drew, 2 id., 55; Hunt
v. Westervelt, 4 id., 225; Muber v. Held, 3 Abb. Pr., 110, on the one
hand; and Armstrong v. Craig, 18 Barb., 389, on the other: in accord-
ance with the ruling in the last case, which appeared to us to be the
more correct ; and by substituting ‘‘ or stay proceedings thereunder,”
for “suspend judgment,” as expressing more clearly the intention of
the legislature. |

§ 3065. Where a new trial is directed before a justice, as pre-
scribed in the last section, the parties must appear before him, at the
time and place specified in the order of the appellate court, without
service of any notice, or of a copy of the order. Thereupon the
like proceedings must be had in the action, as upon the return of a
summons personally served.

[Co. Proc., § 366, fifth sentence, amended by inserting the words,
“without service of any notice, or of a copy of the order,’’]

§ 3066. Upon an appeal provided for in this article, the award
of costs is regulated as follows:

1. If the appeal is dismissed, because neither party brings it to a
hearing, as prescribed 1n this article, costs shall not be awarded to
either party.

2. If the judgment is reversed for an error in fact, not affecting
the merits; or if a new trial is directed, before the same or another
justice, as prescribed in this article; the costs of the appeal are in
the discretion of the appellate court.

88
CHAP, XIX. ] APPEALS. §§ 3067-3068.

3. If the judgment is affirmed, costs must be awarded to the
respondent.

4. If the judgment is reversed, costs must be awarded to the ap-
pellant.

5. If the judgment is affirmed only in part, the costs, or such a
part thereof, as to the appellate court seems just, not exceeding ten
dollars, besides disbursements, may be awarded to either party.

[Co. Proc., § 368, and part of § 371, amended by inserting in subd.
2, the second clause, and in subd. 5, the words, ‘‘ besides disburse-
ments.” As to the effect of a reversal ‘‘without costs,” see Chase
v. Miser, 67 Barb., 441.]

§ 3067. Upon an appeal, provided for in this article, costs, when
awarded, must be as follows, besides disbursements:

To the appellant, upon reversal, thirty dollars.

To the respondent, upon aftirmance, twenty-five dollars.

[Co. Proc. part of § 371, amended by substituting “‘ thirty” for
“fifteen” and “twenty-five” for ‘‘twelve.” Until the enactment of
this section, the costs had remained unaltered, since the enactment of
the Code of Procedure in 1848; while the amount of costs in all other
‘cases had been more than doubled. The effect of solow a scale of costs,
especially on affirmance, was to encourage litigation, chiefly at the
expense of the party who was in the right. | :

ARTICLE THIRD.

APPEAL FOR A NEW TRIAL IN THE APPELLATE COURT.

Sec. 3068. When appellant may demand new trial in appellate court.
3069. Undertaking to be given.
3070. Offer to compromise before return.
3071. Proceedings in appellate court.
3072. Offer to compromise after return.
8078. Amount of costs.

§ 3068. Where an issue of fact or an issue of law was joined be-
fore the justice, and the sum, for which judgment was demanded by
either party in his pleading, exceeds fifty dollars; or where, in an
action to recover a chattel, the value of the property, as fixed, to-
gether with the damages recovered, if any, exceeds fifty dollars ; the
appellant may, in his notice of appeal, demand a new trial in the
appellate court ; and thereupon he 1s entitled thereto, whether the

defendant was or was not present at the trial.
[12] 89

ART. 3.

Amount
of costs.

When
appellant

trial in
appellate
court,
§§ 3069-3070. APPEALS. [CODE CIV. PROC.

TITLE8,

Undertak-
ing to be
given.

Offer to
compro
mise be-
fore re-
turn

[Substituted for so much of Co. Proc., § 352, as relates to appeals
from justices’ judgments, and is not included in § 3045, ante; the
only substantial changes being, that the defendant is allowed a new
trial, where judgment was rendered upon an issue of law, although
he was not present at the trial; and the appellant is required to insert
an additional clause in his notice, where he desires a new trial, instead
of, as under the former statute, where he does not. ]

§ 3069. To render such an appeal effectual, the appellant must,
at the time of the service of the notice of appeal upon the justice,
give the undertaking required, by this title, to stay the execution of
the judgment.

[Co. Proc., § 355, first clause. As to the failure to give the under- “
taking in season, see note to § 3049, ante. |

§ 3070. Upon an appeal, provided for in this article, from ajudg-
ment for asum of money only, the respondent may, within fifteen
days after service of the notice of appeal upon him, and before the
return is filed, serve upon the appellant, or his attorney, a written
offer, to allow judgment to be rendered in the appellate court, in
favor of either party, for a specified sum. If the offer is not
accepted, it cannot be proved upon the trial. If the appellant,
within five days after service of the offer, serves upon the respond-
ent, or his attorney, written notice that he accepts the offer, he must
file it, with an affidavit of service of the notice of acceptance, with
the clerk of the appellate court, who thereupon must enter judgment
accordingly. In such a case, the appellant is entitled to recover his
costs in the court below, and his disbursements upon the appeal,
including the costs and fee, if any, paid to the justice upon taking
the appeal; but neither party is entitled to costs upon the appeal.
If an offer is not made, and the verdict, report, or decision, upon the
appeal, is more favorable to the appellant, by the sum of ten dollars,
than the verdict or decision in the court below; or if an offer is
made and not accepted, and the verdict, report, or decision, upon the
appeal, is more favorable to the appellant, by the sum of ten dollars,
than the amount of the offer; the appellant is entitled to recover
costs upon the appeal: otherwise, the respondent is entitled to
recover costs.

[Substituted for that portion of Co. Proc., § 371 beginning with the
words, “In the notice of appeal”, and ending with the words, “where the

90
CHAP. XIX.] APPEALS.

appellant is not ;” also the concluding sentence of the same section.
These extraordinary enactments, whereby, under the guise of the regula-
tion of costs upon appeal, a long serics of provisions, amounting almost
toa complete system of appeal, and including various directions to
the court below, were interjected into a section regulating fees and
costs, thereby swelling its bulk from a few lines to several pages,
were first added in 1862, and amended in 1863, 1864, and 1866. They
gave rise to many discordant cases, which it was impossible to
reconcile. The most serious conflict of opinion, arising upon them,
was as to the degree of minuteness, with which the appellant
should state, in his notice of appeal, the particulars in which he
claimed the judgment to be erroneous, and the effect of such a state-
ment. The following are some of the cases in the supreme court, and
in the superior city courts, bearing upon these questions: Wallace v.
Patterson, 29 How. Pr., 170; Fox v. Nellts, 25 id. 144; Loomis v.
Aighie, 29 id., 232; Loveland v. Atwood, 381 id., 467; Hotchkiss v.
Banks, 36 id., 61; Reed v. Moore, 31 id. 264, 369; Myers v. White, 37
id., 893; Forsyth v. Ferguson, 27 id., 67; Barnard v. Pierce, 28 id,
232; Gray v. Hannah, 30 id., 155; Putnam yv. Heath, 41 id., 262;
Bancroft v. Shannon, 42 id.,1; Moran v. MeClearns, 43 id., 77; Wyn-
koop v. Halbert, 43 Barb., 266; Fults v. Wynn, 2 Lans., 153; Jones v.
Cook, 11 Hun, 230; Doron v. McLoughlin, 14 id., 628; Vedder v.
Van Buren, id., 250; Amsdell v. McCaffrey, 16 id., 255.

The unanimous opinions of the judges of the court of appeals, in
Younghanse v. Fingar, 47 N. Y., 99, and in Bigsby v. Warden, 62 id.,
27, seem to establish the doctrine that the statement of the ‘‘ particu-
lars,” in the notice of appeal, might be in the vaguest form; and that
the offer, to be made by the respondent, need not correspond thereto.
Under that ruling, 1t was evident, that the statement required in the
notice was an idle ceremony; inasmuch as it had no connection with
the offer, except that 1t was a condition precedent thereto; and the
appellant was at liberty to decline the offer, although it might conform
to his statement. The draftsmen of this section, therefore, dispensed
with any statement or quasi offer, on the part of the appellant, leav-
ing it to the respondent to determine what offer to make, if any, and
requiring it to be made before the return is filed. See § 3072, post,
and § 3053, ante. They also provided for the entry of judgment
in the appellate court, instead of the correction of the judgment of
the justice, as tending better to preserve the rights of the parties, es-
pecially with respect to the enforcement of the undertaking, and the
collection of the appellant’s disbursements, and his costs in the court
below. It seemed to be the better opinion, that by the acceptance of
the offer, and the consequent correction of the judgment by the jus-
tice, the appeal was, ipso facto, dismissed, although there was no ex-
press provision to that effect ; and under that construction, the clause,
that no undertaking should be enforced for more than the amount of
the corrected judgment, was quite unintelligible. It was held, how-
ever, in Ponto v. Phelps, 36 How. Pr., 19, that the county court could
render a judgment for the appellant’s disbursements and costs in the
court below. The provision in this section, for the entry of judgment
in the appellate court, will remove all doubts in these respects.

The operation of this section has been confined to cases, where a
new trial is demanded; as the subject of costs upon the partial affirm-
ance of a judgment is better provided for by § 3066, subd. 5, ante.

91

§ 3070.

ART.

3
§§ 3071-3072. APPEALS. [CODE CIV. PROC.

TITLE 8.

Proceed-
ings in
appellate
court.

Offer to
compro-
mise after
return.

It omits the provision, that the appellant shall recover costs, when the
judgment is ‘‘ reversed,” although the judgment in the appellate
court is not more favorable than that in the court below, by the sum
of ten dollars. The only case, in which that provision was applica-
ble, was where a party had recovered less than ten dollars, and, upon
appeal, the adverse party recovered less than a like sum; and in
such acase, the appellant ought not to be encouraged to demand a
new trial, for the sake of recovering costs. The other amendments
are verbal, except that language has been used, which will not bear the
construction put upon the former statute, in Baldwin v. Brown, 37
How. Pr., 385; which case, it 1s believed, was substantially overruled,
in Prke v. Johnson, 47 N. Y., 1; as well as doubted, in Munuston v.
Ballard, 39 How. Pr., 93; 10 Abb., N. 8., 531.]

§ 8071. Upon an appeal, provided for in this article, after the
expiration of ten days from the time of filing the justice’s return, the
action is deemed an action at issue in the appellate court; and all
the proceedings therein, including the entry, enforcement, and
review of the judgment, are the same, as if the action had been
commenced in the appellate court, except as otherwise specially pre-
scribed in this chapter.

[Substituted for Co. Proc., § 364, last half ; and § 366, subd. 1, 2, 3,
4 and 6, and the first clause of subd. 5. The language has been much
condensed ; and the ten days clause added; but no other essential
changes have been made, except to assimilate the proceedings more
closely to those in other actions, and thus close the door to vexatious
and unnecessary questions of practice. The time, when the action is
deemed at issue in the appellate court, has been fixed at ten days from
the filing of the return, in order to avoid like questions ; inasmuch as
the return cannot be filed till ten days after service of the notice of
appeal (§ 3053, ante); while § 3070 allows the parties twenty days
from the service of the notice of appeal, in which to determine,
whether they will save a new trial by a compromise. ]

§ 3072. Either party may, at any time after the action is deemed
at issue in the appellate court, and before the trial, serve wpon the
adverse party, a written offer to allow judgment to be taken against
him, for a sum, or property, or to the effect, therein specified, with
or without costs. If there are two or more defendants, and the
action can be severed, a like offer may be made by one or more de-
fendants, against whom a separate judgment may be taken; and, if
it is accepted, the action becomes severed, and may proceed against
the other defendants, as if it had been originally commenced against
them only. If the party receiving the offer, within ten days there-
after, serves upon the adverse party, notice that he accepts it, he

92
CHAP. XIX. ] APPEALS.

may file it, with proof of acceptance ; and thereupon the clerk must
enter judgment accordingly. If the offer is not thus accepted, it
cannot be proved upon the trial; and if the party, to whom it was
made, fails to obtain a more favorable judgment, he cannot recover
costs from the time of the offer, but must pay costs from that time.

[Co. Proc., § 366, subd. 5, except so much thereof as is included in
§ 3070, ante, and the clause, providing that the sureties to the under-
taking are liable for the payment of the judgment, which has been
omitted as unnecessary, for the case comes within the terms of the
undertaking. The other amendments are merely verbal, and such as
are required, in order to make the section conform to the regula-
tions respecting offers and acceptances in courts of record ; except
that the second sentence, and also the words, “after the action
is deemed at issue in the appellate court,” have been added, for the
purpose of avoiding any conflict with the provisions of § 3070, ante,
for which the former statute left room. This and the last two sections,
read together, provide that the offer, contemplated by § 3070, must
be made and accepted, in twenty days after the appeal is taken ; while
the offer, contemplated by this section, can be made only after the
time to accept the former has expired; and as such an acceptance must
be followed by a judgment, this section cannot come into operation,
at any time while an offer under § 3070 remains in force. |

§ 3073. Upon an appeal, provided for in this article, costs, when
awarded, must be as follows, besides disbursements:

For all proceedings before notice of trial, fifteen dollars.

For all subsequent proceedings before trial, ten dollars.

For the trial of an issue of law, fifteen dollars.

For the trial of an issue of fact, twenty dollars.

For the argument of a motion for a new trial on a case, fifteen
dollars.

For each term, not more than five, at which the appeal is regularly
on the calendar, excluding the term at which it is tried, or otherwise
finally disposed of, ten dollars.

[Co. Proc., so much of § 371, as is not mcluded in the foregoing
sections, amended by substituting “ fifteen ” for ‘“‘ten”; ‘‘ ten” for
“seven”; and “twenty” for “fifteen.” See § 306%, ante.]

93

8 3073.

ART, 3.

Amount
of costs.
§§ 3074-3075. COSTS. [CODE CIV. PROC.

TITLE 9,

When
prevailing
party to
recover

costs al-
lowed.

When
neither
party to
recover
costs,

TITLE IX.
Costs.

Sxc. 3074. When prevailing party to recover costs. What costs allowed.
8075. When neither party to recover costs.
3076. Amount of costs limited,
3077. Costs upon demurrer,
8078. Taxation of costs.
3079. Increased costs.
3080. Costs on judgment for one or more defendants,
3081, Costs wrongfully collected may be recovered back.

§ 3074, Except as otherwise specially prescribed by law, a party
who recovers judgment in an action in a justice’s court, is entitled
to costs; which must be included in the judgment. Costs consist
of the fees, allowed by law, for services necessarily rendered in the
action, at the request of the party entitled to costs, or paid by him,
as prescribed by law; and of such other expenses, as a party is enti-
tled to include in his costs, by express provision of law.

The first sentence is a substitute for 2 R. 8., 247, Part 3, ch. 2, tit.
4, § 126, first sentence (3 R.5S., 5th ed., 445; 2 Edm., 264) ; also part
of L. 1857, ch. 775, §2 (3 R.S., 5th ed., 453 ; 4 Edm., 700); and of
L. 1866, ch. 692, § 2 (6 Edm., 804). The cases provided for in §§
119, 120, 121 of the R. §., are covered by §§ 3013, 3014, ante. Other
special cases are provided for in subsequent sections of this title.
The second sentence is new ; it is designed to settle the practice, as
to the items of costs to be included in the judgment, which had not
been uniform, justices frequently rendering judgment for the costs of
both parties. It is in conformity with the following decisions: Bron-
son v. Mann, 13 Johns., 460; Timmerman v. Morrison, 14 id., 369 ;
Williams v. Sherman, 15 id., 195 ; Dennison v. Collins, 1 Cow., 111.]

§ 3075. In either of the following cases, costs shall not be
awarded to either party, but each party must pay his own costs :

1. Where the action is discontinued by the absence of the justice
for more than one hour, after the summons is returnable, or after
the time to which the trial has been adjourned.

2. Where the justice is disqualified, for a reason specified in sec-
tion 46 of this act.(*)

3. Where the action is discontinued, upon the ground that the de-
fendant is an infant, for whom a guardian ad litem has not been
appointed.

4. In an action to recover one or more chattels, where the plaint-
94

 

(a) See page 185.
CHAP. XIX.] COSTS.

iff recovers a chattel, or part of a chattel, or the value thereof, and
the defendant also recovers a chattel, or part of a chattel, which has
been replevied and delivered to the plaintiff, or the value thereof.
The plaintiff is entitled to costs, where both parties recover, as speci-
fied in this subdivision, unless the chattel, for which the defendant
recovers, has been replevied and delivered to the plaintiff.

[New. Subd. 1 rests upon the following decisions: Wiest v. Crit-
singer, 4 Johns. 117; McCarty v. McPherson, 11 id., 407 ; Stoddard
y. Holmes, 1 Cow., 245. Subd. 2 rests upon 2 R.S., 275, Part 3, ch. 3,
tit. 1,§ 2 (3 R.S., dthed., 465 ; 2 Edm., 284); § 46 of this act and the
following decisions: Hdwards v. Russell, 21 Wend., 63; Low v. Rice,
8 Johns., 409; Clayton v. PerDun, 13 id., 218; Foot v. Morgan, 1
Hill, 654; Cain v. Ingham, 7 Cow., 478 ; Randall v. Hall, Hill & De-
nio, 239; Post v. Black, 5 Denio, 66; Place v. Butternuts Woolen Co.,
28 Barb., 503. Subd. 3 1s in accordance with the decision in Harvey
v. Large, 51 Barb., 222. Subd. 4 prescribes a rule, which appears to
be the fairest in the cases therein provided for, having regard to the
rule in similar cases in courts of record; as it should be modified by
the difference between the principles upon which costs are awarded in
those courts, and in justices’ courts.]

§ 3076. Thesum to be awarded, as costs, to the prevailing party,
except where it is otherwise specially prescribed by law, is limited
as follows :

1. It cannot exceed ten dollars, besides the fees of witnesses, where,
upon the trial of an issue of fact or of law, either party recovers
damages to the amount of fifty dollars or more, or one or more chat-
tels, the value of which, as fixed, together with the damages, if any,
amounts to fifty dollars or more; or, where, if the defendant re-
covers judgment, the sum, for which the plaintiff demanded judg-
ment, was fifty dollars, or more, or the value of all the chattels, to
recover which the action was brought, was stated in the complaint at
fifty dollars or more.

2. In every other case, it cannot exceed five dollars, besides the
fees of witnesses, attending from another county.

But the prevailing party is entitled, in addition to the sums speci-
fied in this section, to the fees and expenses allowed by law, for a
commission issued to examine a witness, not residing in the county,
or in an adjoining county ; and for each adjournment, exceeding one,
which was granted upon the application of the party, against whom
the judgment is rendered.

95

§ 3076.

TITLE 9.

 

Amount
of costs
limited.
§§ 3077-3079. COSTS. [CODE CIV. PROG.

TITLE 9.

Costs upon
demurrer.

Taxation
of costs.

Increased
costs,

[Substituted for so much of L. 1866, ch. 695, § 2 (6 Edm., 804), as is
not included in the last section but one. The exception in the open-
ing clause is to avoid aconflict with local legislation. See L. 1860, ch.
132,§ 2. The words in subd.1, relating to a chattel, have been
added, in order to supply a supposed casus omissus in the existing
statute. The phrase in the concluding sentence relating to a commis-
sion, contains the substance of a clause in L. 1841, ch. 138, § 3 (3 R.
S., 5th ed., 452 ; 4 Edm., 546), which may have been repealed by § 2
of the act of 1866, although the question 1s doubtful. ‘The foregoing
section applies to all cases, the provision of the concluding sentence,
relating to the expense of adjournments. It 1s confined, in the act of
1866, to the case embraced in subd. 1. This change is of small prac-
tical importance, but justice appeared to require it. Except as men-
tioned in this note, the foregoing section is in accordance with the
former statute ; but the justice of the limitations of the amount of
the costs is questionable. As costs in a justices’ court consist of act-
ual and necessary expenses only there seems to be no sound reason,
why the successful party should not always recover the full amount
thereof. |

§ 3077. Where judgment is rendered upon the trial of a demur-
rer, the costs of the trial must be included therein ; otherwise costs
are not allowed upon the trial of a demurrer.

[New. But implied from the provisions of Co. Proc., § 64, subd. 11;
see ante, § 2944.

§ 3078. Where a justice renders a judgment, he must specify,
in his docket-book, the items of costs, which were allowed by him.
Before any item of costs is thus allowed, other than a fee to the jus-
tice, or to a juror or witness who attended, or to a constable who has
certified the amount of his fee, upon a paper tiled with the justice,
the party must show, by his oath, or that of his attorney, to the
satisfaction of the justice, that the item was actually and legally paid

or incurred.

[New. Under the former statute, there was no mode prescribed,
for the taxation of costs in a justice’s court. This section, which re-
moves the defect in question, seemed to its draftsmen the simplest
provision for that purpose, while, at the same time, it sufficiently pro-

tects the adverse party. If any item is illegally allowed, it may be
recovered back ; see § 3081, post.]

§ 3079. Increased costs must be awarded in favor of the defend.
ant, in an action in a justice’s court, in a case, and increased at the
rate, specified in section 3258 of this act.(*)

[See Fudler v. Walcoz, 19 Wend., 351; Walesv. Hart, 2 Cow., 426.]
96

 

(a) See page 361.
cHaP. x1x.] STRAYS UPON HIGHWAYS, ETC. §§ 3080-3081.

‘ : ; TITLE 10.

§ 3080. In an action against two or more defendants, not united costs on
eo - judgment
in interest, who make separate defences by separate answers, if the for one or

plaintiff fails to recover judgment against all, the justice must award ‘°?°4"*

costs to those who have judgment in their favor.

[2 R. §., 616, Part 3, ch. 10, tit. 1, § 18 (3 R.S., 5th ed., 908; 2
Edm., 639).] ‘

§ 3081. Where a justice includes in a judgment a greaver amount Costs
wrongfully

of costs than is allowed by law, or an improper item of costs or fees, collected |
ay re-

and the same is collected; the person from whom it was collected covered

may, notwithstanding the judgment, recover from the justice who
has received it, the amount thereof, with interest.

[2 R. 8., 266, Part 3, ch. 2, tit. 4, § 230 (3 R.S., 5th ed., 452; 2
Edm., 274), amended by substituting the word, “ justice ”’, for “ officer,”
as it is manifestly inequitable that any other officer should be liable. |

TITLE X.

Action or special proceeding, relating to an animal straying upon
the highway.

PRELIMINARY Note.—The first statute, relating to the subject of
this title, was L. 1862, ch. 459 (3 Edm., 547-549), entitled “An act
to prevent animals from running at large in the public highways.” In
Rockwell v. Nearing, 35 N. Y., 302, the court of appeals substantially
held, that the act of 1862 was unconstitutional, so far as 1t applied to
animals found trespassing upon the land of a private person ; because
1b deprived the owner of his property, ‘‘ without due process of law.”
That case was decided in March, 1866; and the legislature, at its fol-
lowing session, enacted the statute, L. 1867, ch. 814 (7 Edm., 185-189),
which professed to amend the act of 1862, but, in reality, substituted
a new statute therefor New sections were substituted, for the
first and fifth sections of the act of 1867, by L. 1869, ch. 424 (7 Edm.,
448); and a new first section was again substituted by L. 1872, ch.
776 (9 Edm., 476).

After much conflict of opinion in the supreme court, 1t has been
settled, by several decisions of the court of appeals, that the act of 1867
effectually removed the constitutional objections to the act of 1862;
and that it is valid, with respect to all the cases for which it provides.
Campbell v. Huans, 45 N. Y., 356; Cook v. Gregg, 46 id., 439 ; Jones
v. Sheldon, 50 id., 477; Leavitt v. Thompson, 52 id., 62.

[13] 97
§ 3082.

TITLE 10.

STRAYS UPON HIGHWAYS, ETC. [copz crv. proc.

The principal objections to the constitutionality of the statute, arose
upon the peculiar character of the first process, and the mode of ser-
vice thereof. Although these questions are now at rest, still it seemed
to the draftsmen of this’ Code, that the statute was, in those
respects, inadequate to the attainment of substantial justice, in many
cases arising under it. They have accordingly, in preparing this
title, so amended, its provisions, relating to the commencement of the
proceedings to procure the condemnation of the animal seized, as to
conform them closely to those taken upon the commencement of a
civil action. Their amendments provide that the first process must
always be directed to the owner of the animal, where he is known; and
must be personally served upon him, where such service can be made.
The general direction to all persons interested, and the service by post-
ing, as provided in the former statute, have been retained, only to
meet cases, where a special direction or a personal service is impracti-
cable.

They have also amended, in many particulars, the provisions regu-
lating the proceedings between the service of process and the final
condemnation ; and have added some entirely new provisions, chiefly
at the end of the title, for the purpose of removing various obscurities
in the former statute, and closing a door to injustice, and even oppres-
sion, which the statute left open, in some cases. Although these
amendments have rendered it necessary to make numerous changes in
the phraseology of the statute, it will be found, upon a careful examina-
tion of this title, that all the essential rights and remedies of the
parties have been preserved as heretofore.

The name of the first process has been changed from “summons”
to “precept”; and the name of the first pleading, from “ complaint ”
to “‘ petition”, in pursuance of the general plan, which runs through
this entire Code, to confine the use of the words, “summons”, and
“complaint”, to the proceedings in a civil action.

Sxc. 3082. Action against person suffering animals to stray.
8083. Penalties to be recovered.
3084. Certain officers to seize animals straying.
3085. When private person may seize such animals.
8086. Officer or person seizing to present petition.
8087. Precept thereupon.
8088. Id. : how served.
3089. Proof of service of precept.
8090. Answer ; trial.
8091. Decision in favor of petitioner; warrant to se: ; execution thereof.
8092. Application of proceeds of sale.
8098. Disposition of surplus.
8094. Id.; when no claim made within a year.
8095. Order upon claim for surplus; appeal therefrom.
8096 Proceedings upon decision in favor of person answering.
3097. Demand of possession before trial. Proceedings thereupon.

98
cHap. x1x.| STRAYS UPON HIGHWAYS, ETC. § 3082.
Sc. 3098. Id.; when animal wilfully set at large by third person, sa

8099. Action by owner in such a, case.

3100. Action by petitioner and by officer.

3101. Demand of possession after final order and before sale,

8102. Order upon demand of possession ; appeal therefrom.

8103. Id.; stay of proceedings.

8104. Appeal from final order.

3105. Id., by claimant ; stay of proceedings and delivery of possession.

8106, Proceedings upon affirmance.

3107. Limitation of action for selling animals.

8108. Certain actions cannot be maintained.

3109. Where several animals are trespassing, damagesare entire. Proceed-

ings in such cases.

3110. Proceedings in other cases, where there are different owners.

3111. Surplus, where there are different owners.

8112. When one action, etc., supersedes any other.

8113, Rights of officer when private person fails to prosecute.

8114. Person having a special property deemed owner.

8115. Agent may act for his principal.

§ 3082. Any person, who suffers or permits one or more cattle, Action
zi against

horses, colts, asses, mules, swine, sheep, or goats, to run at large, or fifrering

to be herded or pastured, in a public street, highway, park or place, a

elsewhere than in a city, incurs thereby the penalty or penalties
specified in the next section; and any resident of the town, or the
officer to whom a fine or penalty is to be paid for the benefit of the
poor, as prescribed in section 2875 of this act, or the overseer or
superintendent of the poor of the town or district, in which one or
more of those animals are found so running at large, herded, or pas-
tured, may maintain an action against him, in a justice’s court, held
in that town or district, to recover the penalty or penalties so incur-
red. Where the action is brought by a private person, the justice
must pay the proceeds of an execution, issued upon a judgment
therein in favor of the plaintiff, after deducting the costs, to the
officer, who might have brought the action, as prescribed in this sec-
tion, to be applied by him. to the support of the poor within his
town or district.

[The first sentence consists of that part of the section, substituted for
§ Lof the act of 1862, by L. 1872, ch 776 (9 Edm., 476), which relates to
an action to recover the penalty; amended as follows: The words,
“colts, asses, mules,” have been inserted to supply an omission in this
statute, which was doubtless accidental. The words, ‘‘elsewhere than ,
m acity,” have been added; as the whole structure of the act’
shows, that it is not, or at least should not be, applicable to cities.
The word, “resident,” has been substituted for “inhabitant,” in ac-

99
§§ 3083-3085. STRAYS UPON HIGHWAYS, ETC. [copz crv. PRoo.

TITLE 10.

Penalties
to be re-
covered.

Certain
officers to.
seize ani-
mals stray-
ing.

When
private
person
may seize
such ani-
mals.

cordance with the uniform practice of the draftsmen of this Code, in
such acase. The words relating to the officers, who may bring the
action, supply a defect in the statute : see note to § 2875, ante. The
place of trial has also been definitely fixed. The second sentence is,
perhaps, new in form; but the substance thereof is manifestly con-
tained by implication, if not by express provision, in § 3, as remodelled
by the act of 1867. ]

§ 3083. If the plaintiff recovers judgment, in an action brought
as prescribed in the last section, the justice must award to him the
following sums, by way of penalties, besides the costs of the action :

1. For each horse, colt, ass, mule, swine, bull, ox, cow, or calf, five
dollars.

2. For each sheep or goat, one dollar.

The entire amount of the penalties may be recovered, in one
action, although it exceeds the sum, for which a justice can render a
judgment in an ordinary action.

[So much of the same section, as fixes the amount of the penalties,
amended verbally, and by substituting the words, “colt, ass, mule, bull,
ox, cow, or calf,” for ‘‘ cattle ;”? and by the addition of the last sen-
tence. As there is no limit to the sum, which may be recovered before
a justice, by the proceedings in rem, it is proper, that the same rule
should apply, where the remedy by action is pursned.]

§ 3084, Where one or more cattle, horses, colts, asses, mules,
swine, sheep, or goats are found running at large, or being herded
or pastured, in a public street, highway, park, or place, elsewhere
than in a city, the overseer of highways of the road district, or, if
they are so found within an incorporated village, the street commis-
sioner thereof, having personal knowledge or being notified of the
fact, must immediately seize the animal or animals, and keep it or
them in his possession, until disposed of as prescribed in the follow-
ing sections of this title.

[The remainder of the same section, amended by inserting an enu-
meration of the animals, in accordance with the supposed meaning of
the provision; and also the phrase, ‘‘ elsewhere than in a city.” See
note to § 3082, ante. |

§ 3085 Any person may seize one or more animals specified in
the last section, then running at large, or being herded or pastured,
in a public street, highway, park, or place, elsewhere than in a city,
bordering upon real property owned or occupied by him; or then

100
cHaPp. xIx.]| STRAYS UPON HIGHWAYS, ETC.

trespassing upon real property so owned or occupied, having entered
thereupon from such a public street, highway, park, or place. The
person making the seizure, must keep the animal or animals seized
in his possession, until disposed of as prescribed in the following
sections of this title.

[The substance of the section, substituted in place of § 2 of the act
of 1862 by L. 1867, ch. 814 (7 Edm., 1864). The words, ‘‘ specified in
the last section,” have been added, in accordance with the evident
meaning of the provision. The words,‘‘ having entered thereupon,”

ete., conform the provision to the construction placed upon the origi-
nal, in Jones v. Sheldon, 50 N. Y., 477. The words, “then running
at large, or being herded or pastured, in a public street, highway,
park, or place, elsewhere than in a city, bordering upon real prop-
erty,” have been substituted for “which may be in any public high-
way ‘ig opposite to land,” to conform to the previous sections of this
title.

§ 3086. An officer or other person, who seizes an animal or ani-
mals, as prescribed in either of the last two sections, must imme-
diately file, with a justice of the peace of the town in which the
seizure was made, a written petition, verified by his oath; setting
forth the facts, which bring the case within either of those sections ;
briefly describing the animal or animals seized; stating either the
name of the owner, or that his name is not known to the petitioner,
and cannot be ascertained by him with reasonable diligence; and
praying for a final order, directing the sale of the animal or animals
seized, and the application of the proceeds thereof, as prescribed in
this title. Where the petition alleges, that any animal or animals
seized, were then trespassing upon real property owned or occupied
by the petitioner, it must state the amount of the damages, if any,
which the petitioner has sustained thereby. In that case, the
decision of the justice, or, where the issues are tried by a jury, the
verdict, must fix the amount of the damages.

[Part of the first sentence of the section, substituted, by the act of
1867, for § 3 of the act of 1862; amended by substituting a petition for
the complaint, and by adding to the first sentence all after the words,
‘briefly describing,” for reasons stated in the preliminary note to this
title. ‘The second and third sentences are designed to take the place
of the provisions of the original, requiring the justice, in the case
therein provided for, to ascertain the damages, after the proceeds of
the sale are paid to him, for the purpose of satisfying them therefrom.
It 1s supposed that the constitutional questions arising upon this, as
well as the other provisions of the statute, are disposed of by the de-
cisions of the court of appeals, cited in the preliminary note to this

101

§ 3086.

TITLH 10.

Officer

or person
seizing to
present
petition.
§§ 3087-3088. STRAYS UPON HIGHWAYS, ETC. [cop# crv. PROG,

TITLE 10,

Precept
there-
upon.

Id.; how
served.

title ; butit is very inconvenient, and little calculated to promote jus-
tice, to allow such an inquiry to be made by the magistrate, at that
stage of the proceedings. ‘This section, therefore, requires an issue
upon that subject to be tendered, which, by the subsequent sections,
must be tried, in like manner as the other issues in the proceedings. ]

§ 3087. Upon the presentation of the petition, the justice must
issue a precept under his hand; directed to the owner, if his name
is stated in the petition, or, if it is not so stated, directed generally to
all persons having any interest in the animal or animals seized;
briefly reciting the substance of the petition; describing the animal
or animals seized, and requiring the person or persons, to whom the
precept is directed, to show cause before the justice, at a time and
place specified therein, not less than ten nor more than twenty days
after the issuing of the precept, why the prayer of the petition should
not be granted.

[The concluding portion of the same sentence ; amended by substi-
tating a precept fora summons, and by specifying how the precept
shall be directed; and so as to conform the section to the amendments
made in the last section ; but otherwise unchanged in substance. See,
also, § 3135, post. ]

§ 3088. The precept must be served upon the person, to whom it
is directed by his name, within the same time, and in like manner as
a summons is required to be served, as prescribed in section 2910 of
this act. Where it is directed generally to all persons, having an
interest in the animal or animals seized, it may be served by a con.
stable of the town, or by an elector thereof, specially authorized so
to do by a written indorsement upon the precept, under the hand of
the justice, by posting a copy thereof in at least six public and con-
spicuous places in the town where the seizure was made; one of
which places must be the nearest district school house, or, if the seiz-
ure was made within an incorporated village, having schools in charge
of a board of education, a building in which such a school 1s kept.
Each copy must be so posted, within two days after the precept is
issued. Where the precept is directed to a person by his name, and
proof is made by affidavit, to the satisfaction of the justice, that it
cannot, with reasonable diligence, be personally served upon that
person, within the county, at least six days before the return day

thereof, the justice may, by a written order, direct that service
102
cHAp. xIx.] STRAYS UPON HIGHWAYS, ETO. §§ 3089-3090.

thereof be made, by posting copies thereof, at least five days before ™”™™*™

the return day, as prescribed in this section; in which case, service
thereof may be made accordingly.

[The second sentence of the same section, amended by inserting all
between the word, ‘‘served,” in the first line, and “by,” in the sixth
line ; and by the addition of the last two sentences. The words,
‘the copies must be so posted, within two days after the precept is
issued,” supply an omission in the former statute, which did not fix
any time when the posting must be made. As these proceedings are
in the nature of attachment proceedings, the mode of serving the pre-

‘cept has been made to conform to that of an attachment ; and the last
sentence added to provide for a case not covered by § 2910, ante. |

§ 3089. At the place where the precept is returnable, and at the Proot of
expiration of the time specified in section 2893 of this act, the peti- precept.
tioner must, unless the precept is directed to a person by his name,
and he appears, furnish proof of the service of the precept, as pre-
scribed in the last section. If it was served by a constable, either
personally or by posting, his written return upon the precept is suf-
ficient proof of the facts relating to the service, as stated therein. If
it was served by a private person, proof of service must be made by
affidavit.

[The commencement of the third and of the fourth sentences of the
same section, remodelled, but unchanged in substance, except by insert-
ing the reference to § 2893, ante; and by substituting the words,
“unless the precept is directed to a person by his name, and he ap-
pears,” for “if no one shall appear to show cause.”]

§ 3090. The owner, or a person having an interest in any animal Answer 5
Tial,

seized, may appear upon the return of the precept, and thereby make
himself a party to the special proceeding. The person so appearing
may, upon the return of the precept, file a written answer, sub-
scribed by him or his attorney, and verified by the oath of the per-
son subscribing it, denying, absolutely or upon information and
belief, one or more material allegations contained in the petition. His
answer must also set forth his interest in the animal or animals seized.
The subsequent proceedings must be the same as in an action in a
justice’s court, wherein an issae of fact has been joined, except as
otherwise specially prescribed in this title.

[The third sentence of the same section, amended by omitting the
provision allowing an agent to appear and answer, which is covered by
§ 3115, post ; by making the answer conform to § 2938, ante ; and by

103
§§ 3091-3092. STRAYS UPON HIGHWAYS, ETC. [copz crv. proc.

Srna inserting the third sentence. The place for filing papers will be gov-
erned by § 3134, post, although § 825 is made applicable to a proceed-
ing in this court by § 3347, subd. 60. ]

seat ; 4
Pecision=»-- § $091. If no person appears and answers, or if the decision of

Beroner this justice, or the verdict of the jury, where the issues were tried by

sell;

execution a jury, is in favor of the petitioner, the justice must make a final

order, directing the sale of the animal or animals seized, and the
application of the proceeds thereof, as prescribed in this title.
Thereupon the justice must issue a warrant, under his hand, directed
generally to any constable of the county, commanding him to sell
the animal or animals seized, at public auction, for the best price
which he can obtain therefor; and to make return thereof to the
justice, at a time and place therein specified, not less than ten nor
more than twenty days thereafter. The sale must be made upon the
like notice, and in like manner, as a sale of property, by virtue of
an execution issued by a justice of the peace; and the constable must
make return, as required by the warrant, and must pay the proceeds
of the sale to the justice, deducting therefrom his fees, at the rate
allowed by law for the collection of such an execution.

[The conclusion of the fourth sentence, and the whole of the fifth
sentence of the same section, amended by requiring the justice to en-
ter an order ; and by adding the clause, at the conclusion of the section,
which takes the place of che clause, at the end of the sixth sentence
of the original, requiring the justice to pay to the constable, out of the
proceeds of the sale, “the same fees as for service of a summons and
execution in civil actions.” There seems to be no good reason, why
the constable should not deduct his fees for collection, before paying
over the proceeds, in accordance with the rule upon the collection of
an execution. With respect to the fees for service of the summons, they
are properly a part of the petitioner’s costs; and provision therefor
has been made in subd. 1 of thenext section. The words, “constable
of the town,” have also been changed to “constable of the county ; ”
and the manner of sale has been expressly conformed to that of a sale
upon execution. ]

Applica- § 3092. The justice must apply the proceeds of the sale as fol.
proceeds lows:

oot 1. He must pay the costs of the petitioner, as taxed by the jus-
tice, at the same rates as the costs of an action brought before him,
including the justice’s fees in such an action; and also the fees for
theservice of the precept, either personally or by posting, at the rate
allowed by law for personal service of a summons by a constable.
104
cHAP. xIx.] STRAYS UPON HIGHWAYS, ETO.

2. Out of the remainder of the proceeds, he may retain, to his
own use, a fee of one dollar, for each animal sold.

3. Out of the remainder of the proceeds, he must pay to the
officer, or other person making the seizure, the following fees for the
seizure of each animal seized and sold, to wit: one dollar for each
horse, colt, ass, or mule; fifty cents for each bull, ox, cow, or calf;
and twenty-five cents for each goat, sheep, or swine; together with
a reasonable compensation, fixed by him, for the care and keeping
of each animal, from the time of the seizure to the time of the sale;
and, also, where any animal sold was seized, while trespassing upon
real property owned or occupied by the petitioner, the damages sus-
tained by the petitioner in consequence thereof, as ascertained by
the decision of the justice, or the verdict of the jury, upon which
the final order was made.

4. Out of the remainder of the proceeds, he must pay to the offi-
cer, to whom a fine or penalty is to be paid for the benefit of the
poor, as prescribed in section 2875 of this act, the following penal-
ties, to wit: five dollars for each horse, colt, ass, mule, bull, ox, cow,
calf, or swine, seized and sold; and one dollar for each sheep or
goat, seized and sold; which penalties must be received by the offi-
cer, for the benefit of the poor of his town or district.

5. If any surplus remains, he must pay the same to the person or
persons entitled thereto, as prescribed in the following sections of
this title.

[The sixth, seventh, and part of the eighth sentences of the same
section, amended by giving the order in which the claims are payable ;
by expressly allowing the costs to include the justice’s fees and the
constable’s fees for serving the precept ; by allowing the penalties in
subd. 3 only for the animals sold ; and by inserting, in that subd., the
words, ‘‘ass, or mule,” “bull, ox” for “other cattle,” and the
clause requiring the damages for a trespass to be ascertained on the
trial. These various changes conform the section to §§ 3086, 3087
and 3091, ante, which are explained in the notes to those sections.
en has been similarly amended, and so as to conform to § 2875,
ante.

§ 30693. Any person may, within ten days after the return of the
warrant, file, with the justice, a written claim to the surplus of the
proceeds of the sale, or to any part thereof. On the eleventh day
after the return, or, if it is a Sunday or a public holiday, on the first

[14] 105

§ 3093.

TITLE 10.

Disposi-
tion of
surplus.
§§ 3094-3095. STRAYS UPON HIGHWAYS, ETC. [cops crv. Proc.

a day thereafter, which is neither Sunday nor a public holiday, the

justice must proceed to inquire into the claims so filed; and, for the
purpose of determining them, he must hear the allegations and
proofs of each claimant; and he may issue subpcenas, as upon the
trial of an action. He may, upon the application of any claimant,
and for good cause shown, adjourn the hearing, from time to time,
but not more than thirty days in all. After hearing the allegations
and proofs of all the claimants, he must decide the claims, and enter
an order accordingly. If no claim is filed; or if the right to the
surplus money, or any part thereof, is not established, to the satis-
faction of the justice, as prescribed in this section; any person,
whose claim was not determined upon the hearing, may file a claim
thereto, at any time before the expiration of a year from the return
of the warrant; and, thereupon, the justice must proceed, as pre-
scribed in this section with respect to a claim filed within the ten
days.

{Substituted for the remainder of the eighth sentence of the same
section, requiring the justice to pay the surplus “to the owner, or

party establishing before him, on the return of such summons, or at
such other time as he shall appoint, the right to the same.” |

Id.; when § 3094, If, at the expiration of one year after the return of the

no claim

made warrant, any portion of the surplus remains, a claim to which has
ea not been established to the satisfaction of the justice, pursuant to the

provisions of the last section, the justice must pay it, for the benefit
of the poor, to the officer to whom a fine or penalty is to be paid for
the benefit of the poor, as prescribed in section 2875 of this act;
and, thereupon, all persons are forever barred from any claim thereto.
But if a claim, filed as prescribed in the last section, remains unde-
termined at the expiration of the year, the justice must determine
it within ten days thereafter ; and, for that purpose, he must retain
the surplus in his hands until the determination.

(The ninth and tenth sentences of the same section, amended by
substituting the first four lines for the words, “If no person shall
claim said surplus within one year after such seizure”; by inserting
the reference to § 2875; and by adding the last sentence. ]

Order § 3095. An appeal from an order determining a claim, as pre-

vpon . : .
claim for scribed in the last two sections, may be taken to the county court,

appeal
therefrom. 106
cHap. x1x.] STRAYS UPON HIGHWAYS, ETC.

by a claimant, within ten days after the making of the order, as from
a judgment of a justice in an action to recover a sum equal to the
claim; and the proceedings thereupon are the same, except that an
undertaking is not necessary for any purpose. Uponsuch an appeal,
each other claimant, whose interest is affected by the order appealed
from, must be made a respondent. If there is no such claimant, the
officer entitled to the surplus must be made respondent; but costs
cannot be awarded against him, unless he appears upon the appeal;
in which case, the costs ure in the discretion of the appellate court.
Where an appeal, taken as prescribed in this section, is perfected,
the county judge may, in his discretion, make an order extending
the time, within which payment of the surplus must be made, as
prescribed in the last section, and staying payment accordingly.
Unless such an order is made, and a copy thereof is served upon the
justice, payment must be made as prescribed in the last section, not

withstanding the appeal; and upon proof of the payment, the appeal
must be dismissed. Where an appeal is taken to the supreme court,
from the determination of the county court, the county judge, or a
justice of the supreme court may make a like order, and with like
effect.

[New. The former statute allowed an appeal from the final order
only, and restricted the effect of such an appeal asa stay. See § 6,
added to the act of 1862 by the act of 1867 (7 Edm.,189). It seemed
to the draftsmen of this Code, that justice requires that an appeal
should be allowed, in the cases provided for in this section and in §
3102, post; and they have endeavored to frame both sections, and
§ 3103, so as to guard against any injustice or inconvenience resulting
therefrom. |

§ 3096. If the decision of the justice, or the verdict of the jury,
where the issues are tried by a jury, is in favor of the person answer-
ing, it must fix the value of each animal seized. If the justice or
the jury find that the seizure was malicious, and without probable
cause, the decision or verdict must assess the damages sustained by
the person answering, by means of the seizure and detention. The
justice must thereupon make a final order, awarding to the person
so answering, the return of the animal or animals so seized, or the
value thereof if a return cannot be had; together with his costs, at
the rates allowed by law in an action brought before him to recover

107

§ 3096.

TITLE 10.

Proceed-
ings upon
decision
in favor of
person
answering.
§ 3097.

TITLB 10.

Demand
of posses-
sion be-
fore trial.
Proceed-
ings
there-
upon.

STRAYS UPON HIGHWAYS, ETC. [cons ctv. Proo,

a chattel; and, also, twice the sum assessed as his damages, if any.
Thereupon a warrant must be issued by the justice to a constable, to
the same effect, as an execution issued, in an action to recover a
chattel, upon a judgment in favor of the defendant, where the chat-
tel has not been delivered to him; and each provision of this chap-
ter, relating to a judgment and an execution in such a case, applies
to a final order made, and a warrant issued thereupon, as prescribed
in this section.

[Section 7, added to the act of 1862, by L. 1867, ch. 814 (7 Edm.,
189), amended by requiring the value of the animals seized to be as-
sessed; by also allowing damages for detention; by requiring the
final order to award a return, or the value, of the animals seized ; by
defining the rate of costs; and by adding the last sentence.]

§ 3097. At any time after the precept is issued, and before the
commencement of the trial, the owner of any animal seized may file
with the justice a written demand of the possession thereof. There-
upon he is entitled to the possession, upon complying with the fol-
lowing terms:

1. He must pay to the justice, for the use of the petitioner, the
costs of the proceedings, to the time of filing the demand, as pre-
scribed in subdivision first of section 3092 of this act, and, also the
sums payable on account of each animal, whereof possession is so
demanded, as prescribed in subdivision third of the same section ;
which sums must be fixed by the justice, after hearing the allega-
tions and proofs of the parties.

2. He must also pay to the justice, a fee of one dollar for each
animal, whereof possession is so demanded.

3. If the petitioner is an officer, to whom a fine or penalty is to
be paid for the benefit of the poor, as prescribed in section 2875 of
this act, the claimant must also pay to the justice, for the petitioner’s
use, the sum specified therein on account of each animal, whereof
possession is so demanded.

4, The claimant must also prove, to the satisfaction of the justice,
by affidavit or other competent evidence, that he is the owner of
each animal, whereof possession isso demanded. Each person who
has appeared must have notice of, and may oppose, the claim.

[The first paragraph of § 4, as substituted, by the act of 186%, in
place of § 4 of the act of 1862, amended by requiring the demand to

108
CHAP. xIx.] STRAYS UPON HIGHWAYS, ETC. §§ 3098-3100.

be in writing } by inserting in subd. 3, and also in subd. 4, the words, naive

“whereof possession is so demanded” ; and by adding the last sen-
tence to subd. 4. The chief object of the amendments is to adapt the
section to the changes made in the preceding sections ; except that
the words, ‘‘ whereof possession is so demanded,” cover a case, where
the claim is made with respect to some only of several animals seized.
See §§ 3110 and 3111, post.]

§ 3098. But where, in a case specified in the last section, the per- 14.; when
animal

son filing a demand, presents therewith to the justice sufficient proof, witully

by affidavit or otherwise, that the running at large, herding, pas- third =
turing, or trespassing, by reason whereof the animal or animals, of
which he demands possession, were seized, was caused by the wilful
act, intended to effect that object, of a person other than the owner ;
and also makes the proof specified in subdivision fourth of that sec-
tion; he is entitled to possession, pursuant to his demand, upon pay-
ing to the petitioner, or to the justice for his use, a reasonable sum,
to be fixed by the justice, after hearing the allegations and proofs of
the parties, as compensation for the care and keeping of the animal
or animals, whereof possession is so demanded, and without paying

any other sum, specified in the last section.
[See the note to § 3100. ]

§ 3099. The owner of an animal, seized in consequence of a wil- Action. By

ful act specified in the last section, may recover, in an action against Gase.”

the person who committed it, all damages sustained by him, in con-
sequence thereof, including the sum paid in order to recover posses-
sion of the animal, as prescribed in the last section ; arid, in addition
thereto, the sum of twenty dollars for each animal seized.

[See the note to § 3100.]

§ 3100. Where the possession of an animal has been delivered, Action by
petitioner

as prescribed in the last section but one, an action may also be main- and by
tained, by the petitioner in the special proceeding before the justice,
against the person who committed the wilful act, to recover, in addi-
tion to all other damages sustained by the plaintiff in consequence
of the wilful act, all sums, to which the plaintiff would have been
entitled out of the proceeds of the sale, as prescribed in section 3092
of this act, other than the compensation paid for the care and keep-

109
8 3101.

STRAYS UPON HIGHWAYS, ETO. [cops civ. Proc.

TITLH,10. ,

Demand
of posses-
sion after
final order
and before
sale.

ing of the animal. In the like case, if the petitioner is a private
person, the officer, to whom a fine or penalty is to be paid for the
benefit of the poor, as prescribed in section 2875 of this act, may
maintain an action against the person, who committed the wilful act,
to recover the penalties to which the plaintiff would have been enti-
tled, out of the proceeds of the sale, as prescribed in that sub-
division. Neither of the actions specified in this or the last section
is affected by the pendency of, or the recovery of judgment in,
either of the others.

[Section 3098, ante, is the first part of § 5, substituted by L. 1869,
ch. 424 (7 Edm., 448), in place of § 5 of the act of 1862, amended by
allowing the compensation to be paid to the justice, and by requiring the
claimant to make proof that the trespass, etc., proceeded from a third
person’s wilful act. As the statute stood before the enactment of this
Code, the existence of that fact entitled the claimant to demand the
animal, upon the terms specified in this section ; and it would seem to
be the inevitable result, that, in such a case, the justice and the peti-
tioner act at their peril, in refusing to surrender it. To remove all
doubts upon the subject, that result is expressly declared in this sec-
tion. Sections 3099 and 3100 are substitutes for that portion of the
original, which read as follows :

“And the person committing such wilful act shall be liable to
penalty of twenty dollars, to be recovered in an action at law, at the
suit of the owner of such animal, or the person or officer making such
selzure.”

This provision, while it subjected the offender to avery inade-
quate penalty, left the rights of the owner, complainant and officer,
with respect thereto, in great confusion. Upon principle, it would
seem, that the penalty should be given to the owner; that it should
be recoverable for each animal; and that the complainant and the
officer should be entitled to recover, against the wrong-doer, the fees
which they would have received, if the property had not been reclaimed
by the owner. These sections have therefore been amended, in accord-
ance with this theory.]

§ 3101. A person, entitled to demand the possession of an ani-
mal, as prescribed in section 3097 of this act, who did not appear upon
the return of the precept, or upon the trial, may file, with the justice,
a written demand of the possession, at any time after the final order,
and not less than three days before the time appointed for the sale;
and, thereupon, he is entitled to the possession, upon complying with
the following terms:

1. He must furnish, by affidavit or other competent evidence, a
sufficient excuse, to the satisfaction of the justice, for his failure to
appear.

110
cHap. xIx.] STRAYS UPON HIGHWAYS, ETC.* §§ 3102-3104.

2. He must, in all respects, comply with the provisions of section Ses

3097 of this act; except that it is necessary for him to pay only one
half of the justice’s fee, as prescribed in subdivision second of that
section; and one half of the fees payable to the petitioner, for the
seizure of each animal, as prescribed in subdivision third of section
3092 of this act.

[That part of § 4, substituted, by the act of 1867 (7 Edm., 188), in
place of § 4 of the act of 1862, which is not included in § 3097, ante,
amended so as to conform its provisions to §§ 3092 and 3097, ante. ]

§ 3102. Where a demand for the return of the possession of an order

upon de-

animal is filed, as prescribed in either of the last five sections, the mand ot

justice must, at the request of either party thereto, make, and enter Seal inére-
in his minutes, an order determining the same. An appeal from ae
such an order may be taken to the county court, by the person
making the demand, or by either party to the special proceeding, at

any time before the final order in the special proceeding is made ;

and each person or party so entitled to appeal, must be made a
respondent upon an appeal taken by one of the others. The appeal
must be taken in like manner, as an appeal from a judgment of the
justice in an action to recover a chattel ; and the proceedings there-
upon are the same, except as otherwise prescribed in the next
section.

[New. See note to § 3095, ante.]

§ 3103. An appeal from an order, specified in the last section, is Id. stay
not effectual for any purpose, unless the appellant procures from the ceedings.
county judge an order, directing a stay of the proceedings upon the
petition, and a stay of the execution of the order appealed from, and
files it with the justice, within the time allowed for the appeal. The
order may be granted or refused, in the discretion of the county
judge, or granted upon such terms, as to security or otherwise, as he
thinks proper ; and it may be vacated or modified, either absolutely,
or unless further security is given, in his discretion.

[New. See § 3095, ante, and note.]

§ 8104. Within ten days after a final order upon a petition is Apreal

rom final

made, as prescribed in this title, an appeal therefrom may be taken order.

by the petitioner, or by the person answering, in like manner as an
111
§ 3105. STRAYS UPON HIGHWAYS, ETC. [cop ctv. Proc.

TITLE 10.
appeal from a judgment of the justice in an action to recover a sum

of money, equal to the value of the animal or animals, and the pro-
ceedings thereupon are the same, except as otherwise prescribed in
the next section.

[See the note to the next section. ]

Id.3 by § 3105. An appeal from a final order, taken, as prescribed in the

claimant;

stay of. last section, by the person answering, is not effectual for any pur-

delivery of pose, unless the appellant files, with the notice of appeal, an order
sion. of the county judge, or, if he is absent from the county, of a justice
of the supreme court, reciting that the appeal has been perfected,
and that security has been given thereupon, as prescribed in this sec-
tion, and directing a stay of proceedings upon the final order
appealed from, and that the possession of the animal or animals
seized be delivered to the appellant. The order can be made only
where an undertaking is given by the appellant, as required for the
purpose of perfecting an appeal from a judgment, and staying the
execution thereof; and also an undertaking, in the same or another
instrument, to the effect that, if the final order appealed from is
affirmed, or if the appeal is dismissed, the appellant will pay all
sums which the justice awards against him, upon the hearing, after
the determination of the appeal, as prescribed in the next section,
not exceeding a sum specified therein; which must be, at least, twice
the amount of all the sums, which might be deducted from the pro-
ceeds of tke sale, as prescribed in section 8092 of this act. The
sum must be fixed, and the undertaking must be approved, by the
judge who grants the order. Upon filing the order with the justice,
the appellant is forthwith entitled to the possession of the animal or

animals seized.

[This and the last section have been substituted for the first, second
and fourth sentences of § 6, added to the act of 1862 by the act of
1867 (7 Edm., 189). In framing them the former statute has been
amended so as to provide, that the undertaking shall be approved, and
the stay directed by the county judge, or a justice of the supreme
court, instead of by the justice. The provision, making it also neces-
sary for the justice to require the appellant to show that he is the
owner or entitled to the possession of the animals before delivering them
to him, has been omitted. The other amendments are merely those re-
quired, to conform the provision to the amendments in the preceding
sections of this title. ]

112
CHAP. xIx.] STRAYS UPON HIGHWAYS, ETC. §§ 3106-3108.

§ 3166. If the final order appealed from is affirmed, upon an
appeal taken by the person answering, the county court must appoint
a time and place, at which the justice must fix the sums payable by
the appellant, pursuant to his undertaking. The justice may adjourn
the hearing to another place, and to another time, not exceeding
three days after the time so appointed. The justice must fix the
sums so payable, as if a warrant for the sale of the animals seized
had been returned, and the proceeds thereof paid to him by the
constable, as prescribed in section 8092 of this act. The undertak-
ing upon the appeal enures to the benefit of each officer, to whom
any sum is payable, as prescribed in that section; and, with respect
to any of those sums, the respondent is a trustee for the officer enti-
tled thereto.

[The remainder of the same section, amended verbally, and by add-
ing the second and last sentences. ]

§ 3107. Where an animal is seized, upon the ground that it was
running at large, or was being herded or pastured, or was trespass-
ing, contrary to the provisions of this title; and the oflicer or other
person making the seizure, immediately files his petition, and dili-
gently prosecutes the same, as prescribed in this title; an action to
recover the animal so seized, or to recover damages for the seizure,
or for any act subsequent thereto, must be commenced within one
year after the cause of action accrues.

[Section 7 of the act of 1867, amended by substituting a statement
of the actions to which it applies, in place of the phrase, “actions for
any cause of action arising out of any proceeding had or taken, or at-
tempted to be had or taken, under the provisions,” etc., which is so
broad as to include some cases, to which the limitation ought not to

apply. }

§ 3108. A person, to whom the precept was directed by his name,
and who was personally served therewith, or a person who has ap-
peared and answered in the special proceeding, or demanded the re-
turn of any animal seized, cannot maintain an action against the
officer or other person seizing an animal, or a person acting by his
command, or in his aid, in a case specified in the last section. But,
except as specified in this section, the owner of an animal seized or
detained, under color of any provision of this title, may maintain an

[15] 113

TITLE 10.

Proceed-
ings upon
affirm-
ance,

Limitation
of action
for selling
animals

Certain
actions
cannot be
main-4
tained.
§ 3109.

TITLE 10,

Where
several
animals
are tres-
passing,
damages
are entire.
Proceed-
ings in
such cases.

STRAYS UPON HIGHWAYS, ETC. [copz crv. PRoc.

action to recover the animal, or its value, or damages for the seizure
or detention, or for any unlawful act subsequent thereto, if, in fact,
the animal was not, at the time of the seizure, running at large, or
being herded or pastured, or trespassing, as the case may be, as
specified in the foregoing provisions of this title.

[New; intended partly to settle a question, which was left open by
the former statute; and partly to avoid some of the consequences,
which appear to result from the ruling in Leavitt v. Thompson, 52 N.
Y., 62. The construction, placed upon the former statute in that
case, bears hardly upon the owner; and it will work injustice, in some
cases, in spite of the amendments made in this title. The theory of
this section is, that the owner’s remedy should be obtained in the
special proceeding, where the seizure was justifiable and the proceed-
ings are regular; or where he has been named in and served with the
precept, or has answered, or interposed a demand of the possession of
the animal; but that, in any other case, he may resort to an inde-
pendent action. This theory appears to rest upon sound general
principles; besides which, the foregoing section will make it for the
interest of the person effecting the seizure, to name the owner of the
animal in the precept, when he is known. |

§ 3109. Forthe purpose of determining the damages sustained by
the petitioner, where two or more animals are found simultaneously
trespassing upon real property, owned or occupied by him, all the
damage done by all the animals seized, is to be regarded as done by
them jointly; and the petitioner’s remedy therefor is entire, and
must be enforced against all the animals, and the proceeds of the
sale thereof. Where different persons, who are known, own differ-
ent animals seized, the precept must be directed to all of them by
their names. If one or more of the owners are known, and the
others are unknown, and cannot be ascertained with reasonable dili-
gence, the precept must be directed to each known owner, by his
name, and, also generally to all persons having an interest in those
animals, the owners of which are unknown. In a case specified in
this section, a demand of the possession of an animal seized cannot
be made, as prescribed in section 3097 or 3101 of this act, unless it
is made with respect to all the animals seized, and by persons en-
titled to the possession of all of them. But a separate demand may
be made, as prescribed in section 3098 of this act, by each owner of
one or more animals seized; in which case, if possession is delivered
to him, as prescribed in that section, the petitioner’s remedy for his

damages is the same, with respect to the animal or animals, of which
cHAP. x1x.] STRAYS UPON HIGHWAYS, ETC.

possession is not so delivered, and against the proceeds of the sale
thereof, as if those, whereof possession is so delivered, had not been
trespassing upon the property.

[New. This section aims to settle one of the most difficult questions
arising under the former statute. It has often been decided by the
courts of the State, that, where damage accrues to a person, in con-
sequence of an injury to his property, committed by two or more ani-
mals belonging to different persons, an action cannot be maintained
against the owners jointly; each owner being severally responsible
for the damage done by his own animal, and no more. Van Steen—
burgh v. Tobias, 17 Wend., 562; Auchmuty v. Ham, 1 Denio, 495 ;
Partenheimer v. Van Order, 20 Barb., 479, and cases there cited. In
the last case, it is said, that where several cows are together in the
same inclosure, the law infers, in the absence of proof as to the dam-
age done by each animal, that each did an equal amount of damage.
A general proposition, deduced from this ruling, must necessarily be
subject to several qualifications, even where all the animals belong
to the same species; and it would be of very little practical value,
where they belong to different species; as, for instance, where swine
and cows are together in a garden. Itis clear that, without a proper
amendment of the statute, this ruling would sometimes render a
remedy, under the statute, and even by a common law action, more
burdensome to the sufferer from a trespass, than submission to the in-
jury. In this section, it has been provided, as the simplest solution
of the difficulty, which occurred to its draftsmen, that where there
are different owners, the damages are entire, and the proceedings must
be taken against all the owners jointly. But the section is so framed,
that, if several animals are trespassing at the same time, and the
owner of the land does not seize all of them, the damages done by
those not seized must be severed. The principal object of this pro-
vision, is to prevent him from seizing a part only of the trespassing
animals, for instance, a valuable horse, in order to charge the owner
with all the damage. Asa corollary of the provision, rendering the
damages entire, it has been provided that a reclamation under § 3097
or § 3101, ante, must be joint. It would doubtless, be possible to
frame a provision, allowing each owner to reclaim his own animal, or
allowing the owner of one to reclaim all of them, in a case arising
under either of these sections ; but in order adequately to protect, at
the same time, the sufferer from the trespass, and the owners of the
other animals, it would be necessary, in either contingency, to attach
to such a provision so many qualifications, and supplemental provi-
sions, and to require so many acts to be done by the claimant, that it
would be too cumbrous for practical application. But where a case
arises under § 3098, ante, a separate reclamation may be allowed ; be-
cause the owner is entitled to his property, without paying the dam-
ages. It was necessary, however, to dispose, in some manner, of the
claim for the damage done by the animalsreclaimed. As the animals
were trespassers, presumably through their owners’ fault, it is more
just, that their owners should pay all the damages, than that the pe-
titioner should be snbjected to the embarrassment, which a separation
of the damages would require, and turned over, for the recovery of the
damages so separated, to an action against the person, who sct the re-
claimed animals at Jarge. Upon the whole, the draftsmen of this

115

§ 3109.

TITLE 10.

 
§§ 3110-3111. STRAYS UPON HIGHWAYS, ETC. [copz crv. Proc.

TITLE 10,

Proceed-
ings in
other
cases,
where
there are
different
owners.

Surplus,
where
there are
different
owners.

section thought, that although it will not always effect exact justice
between the persons interested, it approximates as nearly to a just
settlement of the perplexing questions, referred to in this note, as
convenience, a due regard to the interest of the litigants, and the exi-
gencies of a general rule will allow.]

§ 3110. Where the petitioner does not allege, that the animals
seized were trespassing upon real property owned or occupied by
him, and different persons own different animals seized, a separate
special proceeding may be instituted, as prescribed in this title,
against each owner, or against any two or more owners, with respect
to the animals owned by him or them. Or the proceedings may Le
taken against all the owners jointly; in which case, each person to
whom the precept is directed by his name, and each person having
an interest in an animal seized, has the same right to demand the
possession of the animal owned by him, and the same right to answer
separately, as if the special proceeding was against him separately ;
and the final order may be in favor of one or more of the persons
so answering, with respect to the animal or animals owned by him
or them, and for his or their costs; and against the remainder of
the persoris answering, or to whom the precept was directed, or for
the sale of the remainder of the animals, in like manner, as if the
former persons had not answered, or had not been named in the
precept. But the person, first making a demand of the possession
of any animal seized, must pay all the costs to the time of the
demand; and a person, subsequently making a demand, is excused
from the payment of any costs, except those which have accrued
since the former demand.

[New ; intended to provide for cases, not included in the last sec-
tion, where there are several owners. In such cases, the questions
discussed in the note to the last section, do not necessarily arise. ]

§ 3114. Where proceedings are taken jointly against different
persons, who own different animals seized, as prescribed in cither of
the last two sections, the surplus, remaining in the justice’s hands,
must be distributed between them, in proportion to the value of the
animals owned by each, to be determined by the justice. Any
owner inay claim separately his proportion of the surplus; and sec-
tions 3093 and 3094 of this act apply to a claim made, and to the

disposition of the surplus arising, as prescribed in this section.
116
CHAP. XIx.] STRAYS UPON HIGHWAYS, ETC. §§ 3112-3113.

[New ; its object and effect will be apparent, without a detailed
explanation. ]

TITLE 10.

§ $112. Where two or more persons, or an officer and a private When one

person, are authorized, by this title, to bring an action, or to seize
an animal, and take the proceedings prescribed in this title for the
disposition thereof, the commencement of an action, or the seizure
of the animal, by either of them, supersedes the right of any of the
others to bring such an action, or to make such a seizure, with re-
spect to the animal seized, or in question in the action. But the
justice may, in his discretion, allow an officer or other person, who
is interested in the recovery, or in the application of the proceeds of
the sale, to appear in the action or special proceeding, for the pur-
pose of protecting his interest, and to take such part in the proceed-
ings therein, as the justice thinks proper.

[New ; see the note to the next section.]

§ 3113. Where a seizure is made by a private person, as pre-
scribed in this title, and the possession of an animal seized is aban-
doned by him, without filing a petition ; or where an action, brought
by a private person, as prescribed in this title, is settled or discon-
tinued by the plaintiff; the officer, to whom a penalty is payable, as
prescribed in section 3083 of this act, or in subdivision fourth of sec-
tion 3092 of this act, may, unless he has assented to the abandon-
inent, settlement, or discontinuance, maintain an action against the
owner of the animal in question, to recover the penalty so payable
to him; and, upon proof of the facts, which would have entitled
the plaintiff in the former action, or the petitioner in the special
proceeding, to recover, he is entitled to judgment accordingly.

[This and the last section are new; they have been framed for
the purpose of avoiding questions, arising upon conflicting claims
of the persons and officers, authorized to pursue the remedies given
by the statute. Section 3112 is to the effect, that the pursuit of the
remedy, by one of the persons so authorized, bars proceedings in be-
half of all others. But, inasmuch as the interests of the private per-
son and of the officer may be in conflict, 1t authorizes the justice to
allow either to intervene, for his own protection, in the action or
special proceeding instituted by the other. Section 3113 authorizes
the officer to recover the penalty, where a private person, pursuing
the remedy, settles with the owner of the animals, before the officer
can intervene, It is not necessary to make a corresponding provision

117

action,
etc.,
supersedes
any other.

Rights of
officer
when
private
erson
ails to
prosecute.
§§ 3114-3115. ' JUSTICES IN BROOKLYN. [copE cIv. Proc.

TITLE 11.

Person
having a
special
propert;
deeme
owner.

Agent
may act
for his
principal.

for a settlement by an officer, to the detriment of a private person ; as
the latter has no interest in the proceedings taken by the former.]

§ 3114. When a person is, at the time of the seizure, entitled to
the possession of an animal, as against the general owner thereof,
by virtue of*a special property therein, he is deemed, for all the
purposes of this title, the owner thereof.

[New in form; but covering, in connection with the next section,
several provisions of the former statute, which referred to the person
entitled to the possession, as a distinct person from the owner. |

§ 3115. The duly authorized agent of the owner or person en-
titled to the possession of an animal, as specified in the last section,
may, in his own name, answer, make any demand, or take any other
proceeding, which the owner or person so entitled may take, as
prescribed in this title.

[New. See the note to the last section. ]

TITLE XI.

Provisions specially relating to courts of justices of the peace in
the city of Brooklyn.

PRELIMINARY Notr.— This title consists of a revision of those
portions of the following enactments, which relate to the subjects
treated in this chapter, to-wit: lL. 1849,, ch. 125, §§ 35, 36 (p. 176) ;
L. 1850, ch. 102, §§ 15, 17 and 18 (pp. 151, 152): L. 1855, ch. 514
(p. 950) ; L.1862, ch. 337 (p. 545) ; L. 1866, ch. 636 (vol. 2, p. 1373);
L. 1868, ch. 689 (vol. 2, p. 1521) ; L. 1869, ch. 276 (vol.1, p. 603), and
ch. $30 (vol. 2, p. 1966) ; L. 1870, ch. 607 (vol. 2, p. 1422), and ch.

. 647 (vol. 2, p. 1492); L. 1871, ch. 331 (vol. 1, p. 642), ch. 492 (vol.

1, p. 1034), and ch. 936, § 1 (vol. 2, p. 2151); L. 1873, ch. 780

* (p. 1186) ; and L. 1875, ch. 623 (p. 784).(*)

SEc. 3116. Justice in sixth district must be an attorney.
3117. Justices’ jurisdiction in Brooklyn extended.
3118. Justices to teceive salaries in lieu of fees; to account and pay over
fees monthly.
3119. Clerk ; how appointed; salary ; bond.
3120. Duties of clerk.
3121. Interpreter for police court, and for first, second, and third districts.
3122. Id ; for fourth and fifth districts.

118

 

(a) The first ten sections of this title have been materially modified by L. 1880, ch. 256
passed on” 12, 1880, which of course supersedes so much of this act as 1s inconsistent
therewith.

'
CHAP. XIX.] JUSTICES IN BROOKLYN. 8§ 3116-3118.

Suc, 3123. Id.; for sixth district. era

3124, Common council may appoint additional interpreters.

3125. Common council to designate attendants, etc.

8126. When plaintiff may serve complaint with summons; proceedings
thereupon.

3127. Jury trial; when and how demanded.

3128. Setting aside default, etc.

3129. Additional costs upon recovery of $100.

' 8180. Id. ; when defendant recovers judgment.

3131. Costs in action by working woman.

8182. Costs upon adjournment.

3133. Application of other provisions, Holding court open.

all

§ 3116. A person shall not hold the office of justice of the peace Justice in

for the sixth judicial district of the city of Brooklyn, unless he distict,

has been regularly admitted to practice as an attorney and counsellor torney.

at law, in the courts of record of the State.
[L. 1868, ch. 689, part of § 1.]

§ 3117. In addition to the jurisdiction conferred generally by Justices’

jurisdic-

law, upon justices of the peace, each justice of the peace of the Bercityn

: a a a, ee ‘ : Be extended.
city of Brooklyn has civil jurisdiction, as prescribed in subdivisions

first, second, third, fourth, and seventh of section 2862 of this act,
where the sum claimed, or the value of a chattel, or of all the chat-
tels claimed, together with the damages claimed, if any, does not ex-
ceed two hundred and fifty dollars.

[L. 1871, ch. 492, § 1, amended by the addition of the last sentence.
See Gerarty vy. Reid, 13 Hun, 3138.

§ 3118. In an action or a special proceeding before a justice of Justices to
5 receive

the peace of the city of Brooklyn, costs must be awarded and collect- salaries in

. : : : : : : fees;
ed, as in alike action or special proceeding before another justice ; but to account

B é a 6 and pay
the justice shall not retain, to his own use, any costs, or any fee, or over fees

monthly.
other reward for his services, except in a special proceeding, insti-
tuted as prescribed in title second of chapter seventeenth of this act.
Each of those justices must, between the first and the tenth days of
each month, render to the comptroller of that city an account, veri-
fied by his oath, of all costs, fees, fines, penalties, aud other money,
collected or received by him, by virtue of his office, during the pre-
ceding month; except for damages awarded, or costs actually paid
to a party to a civil action, or special proceeding, costs, actually paid
119
§ 3119. JUSTICES IN BROOKLYN. [copEctv. Prog

MITLE M1. to another ofticer, in such an action or special proceeding, and such

fees, as the justice is entitled to retain to his own use, as prescribed
in this section. The justice must pay to the comptroller, at the time
of so rendering his account, the full amount of the money so ac-
counted for. Each of those justices is entitled, in lieu of all fees and
perquisites, other than the fees which he is so entitled to retain, to
an annual salary, fixed and to be paid as prescribed by law.

[Those parts of L. 1849, ch. 125, § 32, and first clause of § 36,
as amended by L. 1850, ch. 102,§§ 15 and 18, which are applicable to
justices of the peace; also parts of L. 1869, ch. 276,81; L. 1871, ch.
492,§ 9; and L. 1873, ch. 780, § 1 ; consolidated, and amended so as to
provide, that the justice must make his return, between the first and
the tenth of each month, thus fixing a definite time therefor; thatthe
return must be made to the comptroller, instead of to the com-
mon council; that the fees, etc., must be paid to that officer,
instead of to an “officer designated by the common council ;” that
the return is exclusive of the sums due to parties and other officers ;
and that those sums are not to be paid over. Doubtless, by the true
construction of the former statutes, sums due to parties, etc., were
excepted, but the language used literally included them; and it failed
to provide for distinguishing them, in any stage, from the sums pay-
able to the city. The general repealing act of 1880, which repeals
those provisions, expressly excepts from the repeal all provisions re-
lating to salary and compensation. These were assigned to another
division of the Revision of the Statutes, which was not completed,
when the commissioners’ term of office expired; and they are consc-
quently left to depend upon the former statutes, precisely as if the
latter had not been repealed. See the repealing act, L. 1880, ch. 245,
§ 8, subd. 14.](*)

Clerk ; § 3119. Each justice of the peace of the city of Brooklyn has a

how ap- i
pouwreas clerk, who is nominated by the justice, and appointed by him, sub-

niece ject to confirmation by the common council of that city; and may
be removed by the justice at his pleasure. Lach clerk is entitled, in
lieu of all fees and perquisites, to an annual salary, fixed and to be
paid as prescribed by law. Each clerk, before entering upon the
duties of his office, must execute to the city of Brooklyn, and file in
the city clerk’s office, a bond, in the penalty of two thousand dollars,
with at least two sureties, approved by a justice of the supreme
court, residing in the second judicial district; conditioned for the
faithful performance of his duties as clerk, and for the accounting
for, and paying over, as directed by law, of all money received by
him as clerk. Any paper, which, elsewhere, must or may be filed

 

(a) Pago 159.
120
CHAP. XIX. | JUSTICES IN BROOKLYN.

with a justice of the peace, must or may, in the city of Brooklyn, be
filed with the clerk of the proper justice.

[From L. 1862, ch. 337, §§ 1 and 2; L. 1869, ch. 276; and L. 1871,
ch. 492, § 9 ; amended by inserting the words, ‘‘ for the second judicial
district ;” by requiring the bond to be filed in the office of the city
clerk; and by adding the last sentence. The provision as to the salary
has been omitted; see note to the last section.]

§ 3120. Each clerk of a justice of the peace of the city ot Brook-
lyn must, under the direction of the justice, perform the following
duties :

1. He must keep the docket-book, required to be kept by a jus-
tice of the peace, as prescribed in sections 3140, 3141, and 3142 of
this act.

2. He must file, carefully preserve, and deliver to his successor in
office, every paper, delivered to him to be filed, as prescribed in the
last. section.

3. He must certify and furnish, upon request, and payment of the
fees prescribed by law therefor, a transcript of any judgment ren-
dered by the justice, or a copy of any record or paper, in his posses-
sion as clerk. A transcript or copy so certified, has the same effect,
and must be received in evidence in like manner, as if it was certi-
fied by the justice, by or before whom the judgment was rendered,
or the proceeding was taken.

4, Upon the request of a person entitled thereto, he must issue,
in like manner and with like effect as the justice might issue the
same, a summons in a civil action brought before the justice; or a
subpoena in such an action, or in a civil special proceeding brought
before the justice; or an execution against property, upon a judg
ment rendered by the justice.

5. If the justice is absent, upon the return of a mandate in a civil
action or special proceeding, or at the time and place to which the
trial or hearing is adjourned, and the case is not one, where it is
specially prescribed by law, that, if the justice is absent, another jus-
tice of the same city must take cognizance thereof, the clerk may,
and upon the application of either party, he must, adjourn the cause
from time to time, until the justice attends; and thereupon the action
or special proceeding does not abate, in consequence of the justice’s

[16] 121

§ 3120.

TITLE 11,

Duties of
clerk.
§ 3121-3123. JUSTICES IN BROOKLYN. _ [cops ctv. proc.

TITLE 11.

Inter-
preter for
police
court, and
for first,
second,
and

third
districts.

Id. ; for
fourth and
fifth
districts.

Id. ; for
sixth
district.

absence. But the cause shall not be so adjourned, for a longer period
than six days, at one time, except with the consent of both parties.

6. He must account for, under oath, and pay to the comptroller
of the city of Brooklyn, between the first and the tenth days of each
month, all fees, fines, penalties, and other money, collected or re-
ceived by him as clerk, during the preceding month; except as
specified in section 3118 of this act, with respect to the account to
be rendered by the justice.

7. He must perform such other duties, not inconsistent with this
act, as are required of him by the justice.

[New ; except subd. 5, which has been taken from L. 1866, ch. 636,
and amended by the addition of the saving clause in the first sentence,
to cover cases like that provided for in § 2898, ante. By L. 1849, ch.
125, § 34, as amended by L. 1850, ch. 102, it was provided, that ‘‘ the
common council may, by ordinance or otherwise, fix and regulate the
duties of such clerk or clerks.” It is preferable, for many reasons,
that their duties should be prescribed by statute, and be performed
under the direction of the justice. ]

§ 3121. There is an interpreter for the police court of the city
of Brooklyn, and the justices’ courts of the first, second, and third
districts of that city, who is appointed, and may be removed at pleas-
ure, by the justices of those courts, or a majority of them. He is
entitled to an annual salary, fixed and to be paid as prescribed by
law.

[L. 1870, ch. 607, amended in conformity with the acts revised in
the next two sections; and so as to give the justice of the third dis-
trict a voice in the appointment an renova The provision fixing
the salary has been.omitted ; see note to § 3118, ante.]

§ 3122. There is an interpreter for the justices’ courts of the
fourth and fifth districts of the city of Brooklyn, who is appointed,
and may be removed at pleasure, by the justices of the peace of those
districts. He 1s entitled to an annual salary, fixed and to be paid as
prescribed by law.

[L. 1871, ch. 331. The provision fixing the salary has been omit-
ted; see note to § 3118, ante.]

§ 3123. There is an interpreter for the justice’s court of the
sixth district of the city of Brooklyn, whois appointed by the justice

of the peace of that district, subject to confirmation by the common
122
CHAP. XIX,] JUSTICES IN BROOKLYN. §§ 3124-3126.

council, and may be removed by that justice at his pleasure. He is
entitled to an annual salary, fixed and to be paid as prescribed by law.

[L. 1873, ch. 780, § 2, amended by giving the justice the power of
removal; asto the amount of the salary, see note to § 3118, ante.]

§ 3124. Thecommon council of the city of Brooklyn may, where
it deems it necessary, upon the request of a justice, appoint one or
more interpreters for justices’ courts in that city, in addition to those
provided for in the last three sections; fix their salaries; and pre-
scribe the court or courts which they must attend. An officer, so
appointed, may be removed by the common council, for cause.

[L. 1875, ch. 623.]

§ 3125. The common council of the city of Brooklyn may desig-
nate one or more policemen, or constables, to attend each of the
justices’ courts in that city. The common council may, by ordinance
or otherwise, fix and define their duties in and about those courts,
and may allow them such compensation, in lieu of all fees and per-
quisites, as it deems proper.

[L. 1850, ch. 102, §17; and L. 1855, ch. 514, § 2, amended by insert-
ing the words, “one or more ;” and by omitting the word, “ marshal.”

§ 3126. In an action brought in a justice’s court of the city of
Brooklyn, to recover upon or for the breach of a contract, express or
implied, the plaintiff may serve upon the defendant with the sum-
mons, and in like manner, a copy of a written complaint, verified in
like manner as a verified pleading in the supreme court. In that
case, unless the defendant, upon the return of the summons; or, if
the cause has been adjourned by the clerk, as prescribed in subdi-
vision fifth of section 3120 of this act, at the time to which it was
adjourned ; files a written answer, verified in like manner, denying
one or more material allegations, or, generally, each allegation of the
complaint, or setting forth new matter, constituting one or more de-
fences or counterclaims, the justice must render judgment in favor
of the plaintiff, for the sum claimed in the complaint, with costs,
without putting the plaintiff to any proof. The provisions of this
section apply, where the action is against two or more defendants
jointly indebted, and the summons and a copy of the complaint are

123

TITLE li.

Common
council
may ap-
point ad-
ditional
inter-
preters,

Common
council to
designate
attend-
ants, etc.

When
plaintiff
may serve
complaint
with sum-
mons};
proceed-
ings there-
upon,
§§ 3127-3128. JUSTICES IN BROOKLYN. [copz crv. Proc.

TITLE 11.

Jury trial;
when and
how de-
manded.

Setting
aside de~
fault, etc.

served upon one or more, but not upon all of them; in which case,
judgment may be taken, as prescribed in this section, against all the
defendants, in like manner and with like effect, as a judgment taken
as prescribed in section 3020 of this act.

[L. 1871, ch. 492, §§ 4 and 5, consolidated, and amended by insert-
ing the reference to § 3120, ante; by more accurately describing the
contents of the answer, and by adding the last sentence. The pro-
visions of this act, regulating the verification of pleadings in the su-
preme court, are §$ 525 and 526. | (*)

§ 3127. Inan action ina justice’s court of the city of Brooklyn,
a trial by jury is waived, unless a party demands it, at the time when
an issue of fact is joined, and at the same time deposits, with the
clerk, one dollar and fifty cents, for the jurors’ fees, and also one
dollar and twenty-five cents, for the officer’s fees for notifying the
jurors, and taking charge of the jury. Where a jury trial is so de-
manded, the trial may be adjourned until a time fixed for the return
of the venire.

[Id., § 6, amended by the omission of the last clause, which is suffi-
ciently covered by § 3074, ante.]

§ 3128. A justice of the peace of the city of Brooklyn may, in

‘his discretion, at any time within twenty days after a judgment has

been rendered by him, upon the defendant’s default in appearing
upon the return of the summons, or at the trial; and upon such
reasonable notice to the plaintiff, or his attorney, as the justice thinks
proper, make an order, opening the default ; allowing the defendant
to appear and defend the action ; and setting aside the judgment, or
staying proceedings thereon. The justice may, in his discretion,
impose, as a condition of making such an order, the payment by the
defendant to the plaintiff of a fixed sum, not exceeding ten dollars,
as costs. He may also require the defendant to give an undertaking
to the plaintiff, in a sum fixed by the justice, with one or more sure-
ties, to the effect that the defendant will pay the amount of any
judgment, that may be rendered against him in the action. The
justice may also direct that the judgment, and a levy, if any, made
by virtue of an execution issued thereupon, stand as security for
any judgment, which the plaintiff may ultimately recover before

him.
124

 

(a) See page 204.
CHAP. XIX. | JUSTICES IN BROOKLYN. §§ 3129-3131.

[Id., § 7, amended by inserting, in the first clause of the first sen- arene

tence, the provision limiting the time for making the order, and re-
quiring notice of the application; and by omitting the provision, that
the undertaking shall contain a clause to the effect, that the defend-
ant will not assign any of his property, with intent to hinder, delay or
defraud, etc. This clause is unnecessary, in view of the other strin-
gent provisions of the section.]

2 1 i justice’ r 1 Additional
§ 3129. In an action brought in a justice’s court of the city of Additional

Brooklyn, where the plaintiff, or a defendant interposing a counter- of°si00."

claim, recovers a judgment for one hundred dollars or more, the pre-
vailing party, if he is entitled to costs in the action, recovers the
following sums as costs, in addition to the costs allowed by title ninth
of this chapter :

1. Where the adverse party fails to appear upon the return of the
summons, or at the trial, seven dollars.

2. Where a trial is had, twelve dollars.

[Id., § 2, remodelled and extended, so as to cover the case, where
the defendant recovers one hundred dollars upon a counterclaim. |

§ 3130. A defendant, who recovers judgment in an action in a Id.; when
i defendant

justice’s court of the city of Brooklyn, wherein the complaint de- jidtinent.

mands judgment for one hundred dollars or more, or the recovery
of one or more chattels, the value of which, as stated in the com-
plaint, together with the damages claimed, if any, is one hundred
dollars or more, recovers the following sums as costs, in addition to
the costs allowed by title ninth of this chapter:

1. If the judgment was rendered without a trial, seven dollars.

2. If the judgment was rendered after a trial, ten dollars.

But this section does not apply to a case, where the defendant is
entitled to the costs specified in the last section.

[Id., § 3, first clause, remodelled and amended, so as to correspond
to the last section, and to express more clearly its supposed mean-

ing. ]

3iSik. In an action brought ina justice’s court of the city of Costs in
g J y
* action by

workin
Brooklyn, to recover a sum of money, for wages earned by a female Workine

employee, other than a domestic servant; or for material furnished

by such an employee, in the course of her employment, or in or

about the subject-matter thereof; or for both; the plaintiff, if en-

titled to costs, recovers the sum of ten dollars as costs, in addition
125
§§ 3132-3133. JUSTICES IN BROOKLYN. [cope crv. Proc,

TITLE 11.

Costs upon
adjourn-
ment.

Applica-
tion of
other pro-
visions.
Holding
court
open.

to the costs allowed by title ninth of this chapter, unless the amount
of damages recovered is less than ten dollars; in which case, the
plaintiff recovers the sum of five dollars as such additional costs.
Where the employee is the plaintiff in such an action, she is entitled,
upon a settlement thereof, to the full amount of costs, which she
would have recovered, if judgment had been rendered in her favor,
for the sum received by her upon the settlement.

[So much of L. 1871, ch. 936, § 1, as relates to justices’ courts in
Brooklyn ; remodelled and amended, in the following matters of sub-
stance : In the second line, the words, “by or in behalf of any female
employee, or by the parent or guardian of any such female employee,”
have been omitted, after the words, “city of Brooklyn,” as they restrict
the application, and obscure the supposed meaning of the provision,
which was doubtless designed to extend to an action by an assignee of
a working woman, or by the personal representative of one who has
died. As amended, the provision includes every case, where the action
is to recover for wages or materials, as specified in the statute, in what-
ever character the plaintiff sues. The words, “ domestic servant,”
have been substituted for “ person employed as a domestic or servant;”
an expression which is obscure, and may exclude from the benefit of
the statute, some of those who should be protected by it. The words,
“‘in the course.of her employment, or in or about the subject matter
thereof,” have been substituted for “‘ to any person or persons;” an
expression which renders the statute too broad, if it is literally con-
strued. The phrase at the conclusion has been substituted for “ the
sums above mentioned, the same as though such action had been tried,”
so as to express more clearly the supposed meaning. By section 3222,
post, this section is made applicable to the district courts of New-
York. It is unnecessary to re-enact § 2 of the act of 1871.]

§ 3132. Where an application is made for a second or subsequent
adjournment of the trial of an action, brought in a justice’s court of
the city of Brooklyn, after it has been once adjourned, the justice
may, in his discretion, require payment to the adverse party of a
sum, not exceeding five dollars, besides disbursements, as a condition
of granting the application.

[Id., remainder of L. 1871, ch. 492, § 3.]

§ 3133. Each justice of the peace of the city of Brooklyn is a
justice of the peace of Kings county; and each provision of this
act, relating to the proceedings before a justice of the peace of a
town, applies to the proceedings before a justice of the peace of that
city, except as otherwise specially prescribed in this title. Each of
those justices must hold his court open, from nine o’clock in the

morning, until three o’clock in the afternoon.
126
CHAP. xIx.] MISCELLANEOUS PROVISIONS.

[The first sentence has been taken from L. 1849, ch. 125, §§ 35, 36;
L. 1850, ch. 102, § 18; L. 1871, ch. 492, § 8; and various other
provisions in pari materia. The second sentence consists of part
of L, 1873, ch. 863, tit. 3, § 16.]

 

TITLE XII.
Miscellaneous Provisions.

Src. 8134. Mode of application of certain provisions of this act.

8135. General requisites of mandates.

3186. Reward to constable forbidden.

8187. Justice or constable not to buy claim, etc.

3138. Penalty.

3139. Violation of preceding sections a defence to action.

8140, 3141. Docket-book to be kept by justice ; entries therein.

8142. Index to docket-book.

8143. Papers to be filed.

8144. Deposit of books and papers with town or city clerk.

' 8145. Certificate in docket-book deposited.

3146. Town or city clerk to demand books, etc., upon death, etc., of justice.
r

8147. Delivery ; how compelled,

8148. Entries to be evidence.

8149. Justice to furnish copies of papers.

3150. Transfer of action when justice’s term expires, etc.
8151. Id.; when justice is a witness. 5
8152. Proceedings upon transfer.

3153. Penalty for not paying over money.

8154. Action on judgment of justice.

8155. Id.; proof of judgment, etc.

8156. Execution of mandate by private person.

8157. Constable to execute mandates in person.

3158, Sheriff to act where execution of mandate is resisted.

§ 3134. Where a provision of this act, not contained in this chap-
ter, is made applicable to proceedings before a justice of the peace,
the application is subject to the qualification, that it does not include
anything, which is repugnant to any special provision of law, regu-
lating the jurisdiction or powers of a justice of the peace, or the
proceedings before him. Where a provision, thus made applicable,
relates to the filing of a paper in a court, or with a clerk, the paper
must, in an action or special proceeding before a justice of the peace,
be filed with the justice, unless he has a clerk appointed pursuant to
law ; and where it confers a power upon a court or a judge, the pro-

) P P Judge, the p
vision, making it applicable to proceedings taken under this chapter,
127

§ 3134,

TITLE 12.

Mode of
applica-
tion of
certain
provisions
of this
act.
§§ 3135-3137. MISCELLANEOUS PROVISIONS. [cope crv. Proc.

TITLE 12.

General
requisites
of man-
dates.

Reward to
constable
forbidden.

is to be construed, as conferring a like power upon the justice, be-
fore whom the action or special proceeding is brought.
[New. }

§ 3133. A mandate, issued by a justice of the peace, must be
signed by him, and may be without seal. It must be entirely filled
up, at the time when it is delivered to an officer to be executed, so
as to have no blank, either in the date thereof or otherwise; except
that there may be a blank in a subpeena for the name of any or all
of the witnesses. A mandate, issued and delivered to an officer to
be executed, contrary to this section, is void.

[2 R. S., 267, Part 3, ch. 2, tit. 4, §§ 232 and 233 (3 R. S., 5th ed.,
454; 2 Hdm., 275), consolidated, and amended by substituting “ man-
date” for ‘‘ process,” and for “summons, warrant, attachment and
execution;” and by the insertion of the exception at the end of the
second sentence. The word, “mandate,” is defined in § 3343, subd.
2, post. For general regulations concerning mandates, see, § 22.](*)

§ 3136. A constable shall not ask or receive any money or other
valuable thing from any person, as a consideration, reward, or induce-
ment for omitting or delaying to arrest a person, or to take him to
jail, or to sell property, by virtue of an execution, or to execute any
other duty, pertaining to his office; or any money or valuable thing,

other than the fees expressly allowed to him by law, for executing

“any duty pertaining to his office.

Justice or
constable
not to buy
claim, etc.

[Id., § 234, amended by inserting the words, ‘or delaying,” before
the words, ‘‘to arrest;” by substituting the words, “a person, or”
for, “any defendant, or to carry him before any justice; or for delay-
ing;” and “jail,” for “‘prison;” and by adding the last clause, to
make the section more general. See, also, art. 15, § 1, of the consti-
tution. It will be noted, also, that this section applies to a delay to
take any “person” to jail, whereas the original uses the word

“party.”

§ 3137. A justice of the peace or constable shall not, directly or
indirectly, buy, or be interested in buying, a bond, note, or other
demand or cause of action, for the purpose of bringing an action,
or instituting a special proceeding before a justice, founded there-
upon; nor shall a justice or a constable, either before or after an
action or a special proceeding is commenced, lend or advance, or
agree to lend or advance, or procure to be lent or advanced, any

money or other valuable thing to any person, in consideration of, or
128

 

(a) These sections are on pp. 160, 358.
CHAP. XIX. | MISCELLANEOUS PROVISIONS. §§ 3138-3140,

as a reward for, or an inducement to, the placing or having placed
in his hands, a debt or other demand or cause of action, for prose-
cution or collection.

[Id., § 235.]

§ 3138. A justice of the peace or constable, who violates a pro-
vision of the last three sections, is guilty of a misdemeanor; and
shall be punished accordingly. A conviction also operates as a for-
feiture of his office.

[Id., § 236, amended by omitting the provision that on conviction
he shall be subject to fine or imprisonment, or both, in the discretion
of the court. ‘The draftsmen of this Code retained the last sentence
of this section, out of deference to their predecessors, although there
may be a question, whether it does not conflict with article 6, § 18 of
the constitution, which is similar to a clause in the constitution of
1822; article 4, § 7.]

§ 3139. It is a defence to an action, brought before a justice of

the peace, that the demand, upon which it is founded, was bought
and sold, or received for prosecution, contrary to the foregoing pro-
visions of this title. In an action wherein such a defence is interposed,
if the plaintiff, after being duly subpcenaed as a witness, fails to
attend, pursuant to the subpeena; or if, upon the trial, or upon his
examination as a witness by virtue of a commission, he refuses to
answer any question pertinent to show a violation of either of those
provisions; the justice, besides punishing him, in a proper case, for
his failure or refusal, must dismiss his complaint. The testimony, in
such an action, of the plaintiff, or any other witness, is not evidence,
in a criminal prosecution against him, for violating either of those

provisions.

[Id., §§ 237-242, much condensed, and amended, as required by the
changes since made in the law of pleading and srilence.t

§ 3140. A justice of the peace must keep a docket-book, in which
he must enter :

1. The title of every action or special proceeding commenced be-
fore him.

9. The time when the summons, or the mandate for the com-
mencement of the special proceeding, was issued; with a statement

of the nature of the mandate, and a memorandum of each order of
[17] 129

TITLE 12.

Penalty.

Violation
of pre-
ceding sec-
tions a
defence to
action,

Docket-
book to be
kept by
justice ;
entries
therein.
§ 3140.

TITLE 12.

MISCELLANEOUs PROVISIONS. [cops crv. Proc.

arrest, warrant of attachment, or requisition to replevy, granted by
him.

3. The time when the parties appeared before him, either without
process, or upon the return of the summons, or of the mandate for
the commencement of the special proceeding.

4, A concise statement of the substance of each oral pleading, or
a memorandum of the filing of each written pleading.

5. Each adjournment; stating upon whose application, and to
what time and place, it was made.

6. The issuing of a venire; stating upon whose application it was
issued, and the time and place of the return thereof.

7. The time when a trial was had; and, if it was by a jury, the
names of all the persons returned as having been notified to at-
tend as jurors; stating who did not attend; who attended ; and who
were sworn.

8. The name of each witness, sworn upon the trial; stating at
whose request he was sworn ; each objection made to the competency
of a witness; and the decision thereupon.

9. The verdict of the jury, and the time of receiving it; or, if the
jury disagreed and were discharged, a statement of that fact.

10. A concise statement of the substance of each order, made by
him in the course of the action or special proceeding.

11. The judgment or final order; and the time of entering it.

12. The execution ; the time of issuing it ; the kind of execution;
the name of the officer to whom it was delivered ; and each renewal,
with the date thereof.

13. The return of each execution; the time of the return; and a
statement of any money paid to the justice thereupon, and when and
by whom it was paid.

14. Each transcript of the judgment, given by him to be filed in
the county clerk’s office, and the time when it was given.

15. The appeal, if any; and the time of service of the notice of
appeal.

[Id., § 243, amended so as to correspond to the foregoing provisions
of this chapter; also by omitting from subd. 7, the words, “and the fines
imposed on them, if any,” because the proceeding to fine a defaulting
juror is not taken in the action, and a record of the imposition of such
a fine is to be made separately, Sections 2975-2977 and 3009, ante ;

130
CHAP. XIX.| MISCELLANEOUS PROVISIONS. §§ 3141-3144.
and see Robbins v. Gorham, 25 N. Y., 588. Also amended by adding aera
the last clause to subd. 9; and by inserting subd. 10, and the last

clause of subd. 13.]

 

§ B41. Each of the entries, specified in the last section, must be Tho same.

made under the title of the action or special proceeding to which it
relates; and, in addition thereto, the justice may enter in like man-
mer any other proceeding, had before him in the action or special
proceeding, which he thinks proper to enter. A docket-book,
kept by a justice, must be kept open, during the hours, when a
sheriff's office is required by law to be kept open, for search and
examination by any person, upon his reasonable request and to a
reasonable extent.

[Id., § 244, amended by adding the last sentence. The provisions
of §§ 245-248 of the R.8., making the docket-book, etc., evidence,
are contained in §§ 938-940, ante. Section 834, ante, renders it un-
necessary to re-enact § 249 of the R. 8.](*)

§ 3142. A justice of the peace must keep an alphabetical index Index to

docket-
to all the judgments, entered by him in bis docket-book ; and he must »°°*

insert therein the names of all the parties to each judgment, and the
page of the book, where the judgment is entered.

[Id., § 251.]

§ 3143. A justice of the peace must carefully file and preserve Papers to
each affidavit or other paper, delivered to him to be filed in an
action or special proceeding.

[Id., § 250. ]

§ 3I44, If a justice of the peace, either before or after the expi- Perosit of

ration of his term of office, removes from the town or city wherein with town
he was elected, he must forthwith deposit, with the clerk of that eerie.
town or city, his docket-book, and all other books and papers, in his
custody, relating to an action or special proceeding, which has been
heard by him, or commenced before him. <A justice, who is removed
from office, must make a like deposit, within ten days after receiv-
ing notice of his removal, or afterwards, upon the demand of the
clerk of the town or city. But the omission of the justice to make
the deposit, does not affect the validity of any book or paper, so re-
quired to be deposited, or of any proceeding to which it relates.

131

(a) Sections 938—940 are on pages 236, 237; section 834 on page 218.

 
§§ 3145-3148, MISCELLANEOUS PROVISIONS. [conn crv. proc.

TITLE 12.
[Id., §§ 252 and 253, consolidated, and amended so as to make it

applicable to a city ; also by adding the last sentence, so as to incor-
porate into the statute one of the rulings in Humphrey v. Persons,
23 Barb., 3813; and by omitting after the words, “removed fro
office,” the words, “by the county court.”] :

Certidcate § BLAS. A justice of the peace must make, in each docket-book
in docket- :

ae deposited by him, as prescribed in the last section, a certificate under

his hand, to the effect that each judgment or order, entered therein,
was duly rendered or made, as therein stated; and that the sum,
appearing by the book to be due thereupon, has not been paid, to
his knowledge.

[Id., § 254.]

Town or § 3146, Ifa justice of the peace dies, or his office becomes oth-

’ city clerk

todemand erwise vacant, the town or city clerk must demand and receive all

death, *" books and papers, which belonged to the justice in his official
etc., 0

justice. capacity, from any person having them in his possession.

[Id., § 255, amended by substituting ‘“‘must” for “may;” and
nserting “or city.” |

Delivery; § 3147. If any book or paper, required to be deposited with the
poled” town or city clerk, as prescribed in this title, is withheld, the like

proceedings may be had, at the instance of the town or city clerk,
to compel the deposit thereof, as are prescribed by law, where an
officer refuses or neglects to deliver a book or paper in his custody
as such officer, to his successor in office.

[Id., § 256, amended by inserting the words, ‘‘ or city.” ]

Entries to § SU48. An entry made, as prescribed by law, in the docket-book

be evi-

dence. kept by a justice of the peace, and deposited with the town or city
clerk, as prescribed in this title, is presumptive evidence of the mat-
ters of fact stated therein; but the presumption may be repelled
by proof.

[Id., § 257, amended by inserting, “asprescribed by law,” for the
purpose of confining the operation of the section to entries made by
the justice only, and to such entries as he is required or permitted by
law to make therein ; by inserting the words, ‘‘or city;” by substi-
tuting for ‘book of minutes,” the expression, ‘“ docket-book,” which
is used in § 251 of the R.8.; and by omitting, before “deposited with
the town clerk,” the words, ‘by him,” so as to extend the provision
to cases, where the book is deposited with the town clerk by a person

132
CHAP. xIx.] | MISCELLANEOUS PROVISIONS. §§ 3149-3151,

other than the justice, under § 3146, ante, and where the deposit is nee

compelled, under the last section. |

.§ 3149, A justice of the peace must furnish, upon request, and {ustice to

payment of his fees, to any person interested in a judgment or order Sara

entered by him, a transcript of the judgment or order, together with
a copy of all the entries in his docket-book, relating to the cause;
a copy of his minutes of the evidence in the cause, or the substance
of the testimony, if he has not taken minutes; and a copy of any
paper on file in the cause; or such portions thereof as are required.

+ [L. 1841, ch. 141, §1 (3 R.S., 5thed., 458; 4 Edm., 546), amended
by omitting those portions, which limit the application of the statute
to a case, where the judgment was rendered by default, etc., and to
certain papers ; and by making the section applicable to an order.
The compensation provided seems to be liberal enough; and there is
no reason, why “a person interested ” in a judgment should not be
entitled to procure a copy of any paper, affecting his rights, in the
game manner as he can procure it, when it is filed in a clerk’s office.]

§ 3150. If the term of office of a justice of the peace is about to Transfer
of action

expire, or he is about to remove from the town or city, before judg- 7292 jus,

ment is rendered in an action, or a final order is made in a special alae
proceeding, pending before him, he must previously make a written

order, reciting the fact, and directing the action or special proceeding

to be continued before another justice of the same town or city,
named in the order.

[New. The necessity of some such provision isevident. The con-—
tinuance of the action or proceeding before another justice is perhaps
the simplest way of meeting the case. |

§ 3151. If, before an issue of fact is joined in an action or special I4.;, when
“ justiceisa

proceeding, the defendant, or, where he has not been arrested, his witness.
attorney, presents to the justice satisfactory proof, by affidavit, that
the justice, before whom the action or special proceeding is pending,
is a material witness for the defendant, without whose testimony he
cannot safely proceed to trial, setting forth therein the particular
facts and circumstances, which he expects to prove by him; the jus-
tice must forthwith make a written order, directing the action or
special proceeding to be continued before another justice of the same
town or city, named in the order.
[See the note to the next section.]
133
§§ 3152-3155. MISCELLANEOUS PROVISIONS. [cops crv. Proc.

TITLE 12,

Proceed-
ings upon
transfer,

Penalty
for not
paying
over
money.

Action’ on
judgment
of justice.

Id.; proof

§ 3152, Where an order is made, as prescribed in either of the
last two sections, the constable must forthwith take it, and all other
papers in the action, with the body of the defendant, if he is under
arrest, before the justice named in the order. The plaintiff or peti-
tioner must forthwith appear before that justice, who must take
cognizance of the action or special proceeding, and must proceed
therein as if it had been commenced before him. Costs, recovered
in the action or special proceeding, include the fees allowed by law,
for services performed by the constable and the justice, before the
transfer, together with the fees allowed by law, for the proceedings
before the justice to whom the cause is transferred.

[This and the last section have been taken from 2 R.8.. 229, Part
8, ch. 2, tit. 4, part of § 21 (3 R.S., dthed., 429; 2 Hdm., 245), omit-
ted in framing § 2898, ante; also § 118 of the same title (3 R.S., 5th
ed., 444; 2 Edm., 263), as amended by L. 1838, ch. 243 ; and L. 1875,
ch. 334; and amended by inserting, in section 3151, the word, “sat-
isfactory ”, before ‘‘ proof,” and omitting the clause, ‘‘if the justice
shall be satisfied that he is a material witness,” etc., to conform the
provision to the ruling in Hopkins v. Cobrey, 24 Wend., 264, and
Young v. Scott, 3 Hill, 32.]

§ 3153. A justice of the peace, who neglects or refuses, within a
reasonable time after demand, to pay any money, collected by him
in his official capacity, to the person entitled thereto, is guilty of a
misdemeanor, and shall be punished accordingly. A conviction also
operates as a forfeiture of his oftice.

[Section 259 of the R. S. See the last sentence of § 3138, ante,
and note thereto. |

§ 3154. In an action upon a judgment of a justice of the peace,
brought in the county wherein it was rendered, within five years
after the rendition thereof, against a defendant upon whom the
summons was personally served, no costs can be recovered, except
where the justice, who rendered the judgment, is dead, or out of
office, or otherwise incapable of acting; or has removed from the
county ; or where one of the parties has died; or where the docket
of the judgment has been lost or destroyed.

[Co. Proc., § 71, last clause; amended by withholding costs ina
case where the original forbids an action. See § 3021, ante. ]

§ 8155. In an action brought wpon a judgment of a justice of
134
CHAP. XIx.] MISCELLANEOUS PROVISIONS. §§ 3156-3158.

the peace, who is dead, or out of office, or otherwise incapable of
acting; or has removed from the county; or cannot be found
therein ; the original docket-book of the justice is presumptive evi-
dence of any matter entered there, as prescribed by law; but the
presumption may be repelled by proof. If the docket-book is lost
or destroyed, or if it cannot be produced, after reasonable effort to
obtain it, the like proof may be given, respecting the recovery of the
judgment, as upon any other question of fact.

[Sections 265 and 267 of the R. S., consolidated, and amended by
making the provision applicable to actions brought after, as well as
before, the issuing of an execution upon the judgment; by substitut-
ing “entered therein as prescribed by law,” in place of “stated,” for
the reason given for a like alteration, in the note to § 3148, ante; and
by substituting ‘‘respecting the recovery of the judgment,” in place
of “a judgment having been rendered,” because the latter expression
is too narrow, fully to accomplish the beneficial object of the statute.]

§ 3156. A justice of the peace, who issues any mandate, author-
ized by this chapter, except a venire, may, at the request of the party,
whenever he deems it expedient so to do, empower, by a written
authority indorsed upon the mandate, any proper person of full age,
not a party to the action, to serve or otherwise execute it. For that
purpose the person so empowered has all the power and authority,
and is subject to all the obligations and liabilities, of a constable;
and his return is evidence in like manner as a constable’s. Buta
person so empowered is not entitled to any fee or reward for his

services.

[Id., §§ 271 and 272, consolidated, and amended by adding the
phrase making the return evidence. See Jackson vy. Sherwood, 50
Barb., 356.]

§ 3157. A constable, to whom a mandate is directed and de-
livered as prescribed in this chapter, must execute it in person, pur-

suant to the tenor thereof. He cannot act by deputy in such a case.
[Id., § 273.]

§ 3158, Ifa constable, to whom a mandate, issued by a justice
of the peace, is directed and delivered, finds, or has reason to appre-
hend, that resistance will be made to the execution thereof, he may
deliver it to the sheriff of the county, with a written certificate,
stating the facts, and requiring the sheriff to execute it. Thereupon

135

TITLE 12,
of judg-
ment, ete.

Execution
of man-
date by
private
person.

Constable
to execute
mandates
in person.

Sheriff to
act where
execution
of man-
date is re-
sisted.
§ 3158.

TITLE 12.

MISCELLANEOUS PROVISIONS. [copDE orv. PRoo,

the sheriff must execute the mandate; and he is subject to all the
liabilities attaching to a constable in executing it. Sections 104,
105, and 106 of this act apply to a mandate delivered to a sheriff,
as prescribed in this section.(*)

[The provisions of L. 1845, ch. 69 (2 Edm., 459, § 80, etc.), author-
ize the sheriff “or other public officer authorized to execute any pro-
cess,” etc., to raise the power of the county to assist him in overcom-
ing resistance to process. In revising these provisions for chapter 2
of this act, it was thought prudent to restrict the application thereof
to sheriffs. (See §§ 104, 105, and 106, and note to § 104.) Some
provision was therefore needed, for the relief of constables charged
with the execution of process, to which resistance is offered; and this
section has been prepared to meet such a case, by authorizing the con-
stable to transfer the mandate to the sheriff, who, by virtue of the sec-
tions ale referred to, may, if necessary, call for assistance in execut-
ing it.

136

 

~~ (a) Sections 104-106 are on p. 167.
CHAP. XX.] LOCAL COURTS. § 3207,

ART, 1,

CHAPTER XX.

(EXTRACTS. )

PROVISIONS RELATING TO CERTAIN COURTS IN
CITIES, AND THE PROCEEDINGS THEREIN.

TITLE IV.

The district courts of the city of New-York, and the justices’
courts of the cities of Albany and Troy.

ARTICLE 1. Provisions generally applicable to all the courts specified in this title.
2, Provisions exclusively applicable to the district courts of the city of
New-York.
8. Provisions exclusively applicable to the justices’ courts of Albany
and Troy.

ARTICLE FIRST.

PROVISIONS GENERALLY APPLICABLE TO ALL THE COURTS SPECIFIED IN THIS
TITLE.

Szc. 3207. Service of complaint with summons; proceedings thereupon.
8208. Id.; and proof of service.
8209. Action to be commenced by service of summons.
8210. Order of arrest; warrant of attachment ; requisition to replevy.
8211. The last section qualified.
3212. Proceedings where title to real property is in question.
8213. Appeals.
8214. Effect of this act, upon jurisdiction and proceedings.

§ 3207. Section 3126 of this act applies to an action to recover Service of
complaint

upon or for breach of a contract, express or implied, brought in a with sum-
mons;

district court of the city of New-York, in the justices’ court of the procera:

city of Albany, or in the justices’ court of the city of Troy. ead

[Section 3126, ante, was taken from L. 1871, ch. 492, which applies
to an action before a justice of the peace in Brooklyn. A similar
provision was made, with respect to the district courts of the city of
New-York, in L. 1857, ch. 344, § 15; and, with respect to the jus-
tices’ court of Albany, in L. 1873, ch. 182, §§ 1 and 2. This section
extends the provision to the justices’ court of Troy, and makes the
rule uniform, with respect to the courts in the four cities. ]

[18] 137
AN

§§ 8208-3211. LOCAL COURTS. [CODE CIV. PROG.

TITLE 4,
Id.; and
proof of
service,

§ 3208. In an action brought in either of those courts, the sum-
mons, and, in a proper case, a copy of the complaint, may be served
by any person not a party to the action; except that, where the
action is brought in a district court of the city of New-York, a per-
son, other than a constable or a marshal, serving the same, must be
first empowered to do so, either by the justice, or by the attorney to

‘the corporation, as now prescribed by law. Proof of service thereof,

Action to
be com-
menced by
service of
summons.

Order of
arrest 5
warrant of
attach-
ment; re-
quisition
to replevy.

The last
section
qualified.

by such a person, must be made by his affidavit; which must state
the particular place, time, and manner of service, and that the affiant
knew the person so served, to be the person mentioned and described
in the summons, as defendant therein.

[New, in its application to the justices’ court of Troy; taxen
from L. 1873, ch. 182, §§ 1 and 3, relating to the justices’ court
of Albany; and L. 1857, ch. 344, § 15,'and L. 1862, ch. 484, § 14, as
amended by L. 1864, ch. 569, § 2, and modified by L. 1866, ch. 758,
relating to the district courts of the city of New-York. Section 14 of
the act of 1862 was further amended by L. 1879, ch. 102. The act of
1866 was repealed by the general repealing act of 1880, L. 1880, ch.
245, § 1, subd. 42; but the before cited sections of the acts of 1862
and 1864, and the act of 1879, were not repealed thereby. They are,
however, repealed by implication by this section, as far as they apply
to the service of a summons and a copy of the complaint in an action
brought in a district court ; but the amendment of 1879 remains in
force, as respects special proceedings, as stated in the note to § 2239.](*)

§ 3209. An action, brought in either of those courts, at any time
after this chapter takes effect, must be commenced by the voluntary
appearance of, and joinder of issue by, the parties, or by the service
of a summons.

[New. See § 2876, ante, and the note thereto, and the note to §
3211, post. ]

§ 3210. Articles third, fourth, and fifth of title second of chapter
nineteenth of this act apply to an action brought in either of those
courts, except as otherwise prescribed in the next section.

- [New. See the note to the next section. ]

§ 3214. The provisions of the last section are subject to the fol-
lowing qualifications :

1. Nothing contained in either of the articles, so made applicable,
applies to an order of arrest, in an action brought in a district court
of the city of New-York, or affects any provision of this title, re-

138

 

(a) Section 2239 ison page 831; the general repealing act of 1880, wlil be found at the
end of Part III.
CHAP. XX. ] LOCAL COURTS.

lating to the jurisdiction of either of the courts specified in this
title.

2, An order of arrest, in an action brought in the justices’ court
of Albany, or the justices’ court of Troy, or a warrant of attach-
ment, or a requisition to replevy, in either of those courts, or in a
district court of the city of New-York, must be granted by, and
directed to, and executed by, the officer empowered, by the statutes
remaining in force after this chapter takes effect, to grant or execute,
as the case requires, in the same court, a warrant to arrest, a war-
rant of attachment, or a requisition in an action to recover a chattel.

3. The manner of applying for, granting, and executing an order
of arrest, a warrant of attachment, or a requisition to replevy, and
the proceedings thereupon, and with respect thereto, as prescribed
in the articles so made applicable, are subject to the statutes, remain-
ing unrepealed after this chapter takes effect, specially applicable to
those courts, or to either or any of them, prescribing the duties of
the justices, or of the clerks thereof, or regulating the mode of
transacting business in an action brought therein.

[The general object of this and the last two sections is to abolish
a warrant of arrest, and an attachment, as process for the commence-
ment of an action ; to substitute the appropriate provisional remedies
therefor, as provided in chapter 19, with respect to justices’ courts ;
and generally to subject the proceedings in such cases, and where
property is replevied, to the careful revision of the statutes, relating
to similar proceedings in justices’ courts, contained in chapter 19,
as closely as it is practicable so to do, in view of the peculiar or-
ganization, etc., of the courts to which this title is devoted. Subd.
1 of this section excepts, from the operation of the provisions referred
to in § 3210, the existing provisions of law, concerning a warrant to
arrest a defendant, in an action brought in a district court of New-
York city. This exception was necessary, in order to prevent sub-
stantial changes in the law ; because the cases where a warrant may
issue, and the proceedings under the warrant, are not the same in a
New-York district court, as in a justice’s court. This subject is pro-
vided for in the next article, which relates exclusively to the district
courts. See §§ 3217 and 3218, post. ]

§ S21. Sections 2951 to 2958 of this act, both inclusive, apply
to an action, brought in either of those courts; except that, where
the action is brought in a district court of the city of New-York, the
surety upon the defendant’s undertaking is liable, in the case speci-
fied in section 2952, to any amount, for which judgment might have

139

§ 3212.

ART. 1.

Proceed-
ings
where
title to
real prop
erty isin
question.
§§ 3213-3214. LOCAL COURTS. [CODE CIV. PROO.

 

TITLE 4,

Appeals.

Effect of
this act,
upon
jurisdic-,
tion and
roceed~
ngs.

been rendered by the district court, if the answer and undertaking
had not been delivered. (*)

[The first clause of this section refers to the proceedings, where
title to real property comes in question. The remainder of the section
has been added, because the jurisdiction of the district courts extends
to a larger sum than that of a justice of the peace. ]

§ 3213. An appeal from a judgment, rendered in a dictrict court
of the city of New-York, may be taken, in the cases, and in the
manner, prescribed in articles first and second of title eighth of
chapter nineteenth of this act, with respect to an appeal to a county
court, from a judgment rendered by a justice of the peace; and not
otherwise. Such an appeal must be taken to the court of common
pleas for that city and county. An appeal from the judgment ren-
dered in the justices’ court of the city of Albany, or the justices’
court of the city of Troy, may be taken, in a case where an appeal
may be taken to a county court, from a judgment rendered by a
justice of the peace, as prescribed in title eighth of that chapter ;
and in no other case. Such an appeal must be taken to the county
court of the county, wherein the court is located.

[This section applies, to appeals from these courts, the provisions
of chapter 19, ante, relating to appeals from justices’ courts, in which
several amendments have been made to the pre-existing statutes. It
supersedes L. 1857, ch. 344,§ 76. Held in Zinsser v. Seiler, 7 Daly,
464, settling a question which had formerly been in doubt, that where
a notice of appeal from a New-York district court had been seasona-
bly served upon the justice, but not upon the party, the common
pleas could, under § 273 of the old Code, allow the appeal to be per-
fected by serving notice on the party, after the time to appeal had
expired. But see § 3049, ante. |

§ 3214, Except as otherwise specially prescribed in this title, this
act does not affect any statutory provision, remaining unrepealed
after this chapter takes effect, relating to the jurisdiction and pow-
ers of either of those courts; the appointment, qualification, tenure
of office, powers, or duties of the justices, or of the clerk, or any
other officer thereof; or the proceedings therein ; except that a pro-
vision of this or any other statute, whereby a proceeding in an
action, brought in either of those courts, or a special proceeding,
brought therein, or before a justice thereof, is assimilated, either
expressly, or by reference to another provision of law, to a proceed-

ing, in an action or a special proceeding before a justice of the peace,
140

 

(a) The sections referred to are on pages 46-49.
CHAP. XX.] N. Y. DISTRICT COURTS.

is deemed to refer to the corresponding proceeding, as prescribed in
chapter nineteenth of this act.

[In accordance with the general plan of this title, to disturb as
little as possible the statutes specially relating to these courts. See
note to § 3211.]

ARTICLE SECOND.

PROVISIONS EXCLUSIVELY APPLICABLE TO THE DISTRICT COURTS OF THE
City or New-York.

PRELIMINARY Nore.— In 1857, the legislature enacted a statute,
entitled “An act to reduce the several acts, relating to the district
courts in the city of New-York, into one act.” lL. 1857, ch. 344,
But the contents of the act of 1857 do not fully correspond to its
comprehensive title; for it adopts by reference, without re-enacting
them, various provisions of former statutes, the most noticeable of
which are the Code of Procedure, and the act of 1813 (2 R. L, ch.
86). The act of 1857 has been since amended, in several important
particulars; and various statutes, relating to those courts, have
been subsequently enacted. See L. 1857, ch. 793; L. 1858, ch.
334; L. 1860, ch. 800; L. 1862, ch. 389, and ch. 484; L. 1863, ch.
189; L. 1864, ch. 308, and ch. 569; L. 1865, ch. 688; L. 1866, ch.
21%, ch. 745, ch. 754, and ch. 758; L. 1867, ch. 516; L. 1868, ch. 828,
L. 1869, ch. 377, and ch. 410; L. 1870, ch. 383, and ch. 741; L.1871,
ch, 721, and ch. 936; L. 1872, ch.438; L. 1873, ch. 596; and L. 1874,
ch. 829, § 5, and ch. 504; L. 1876, ch. 356; L. 1878, ch. 33, 431, and
175; and L. 1879, ch. 71, and 102.

Szc. 3215. Jurisdiction in civil actions.
8216. Removal of certain actions into common pleas,
8217. When order of arrest may be granted. ;
8218, Proceedings thereupon.
8219. Requisites of certain undertakings.
8220. Docketing judgment; execution thereupon,
8221. Enforcement of certain judgments in favor of working women,
8222. Costs in action by working woman,

§ 32195, Each district court of the city of New-York has juris-
diction of the following civil actions:

1. An action, of which a justice of the peace has jurisdiction, as
prescribed in sections 1737, 2861, 2862, and 2863 of this act, includ-
ing an action against a domestic corporation, or against a foreign cor-
poration having an office in the city of New-York, where the sum

claimed, or the value of the chattel or of all the chattels claimed, as
141

§ 3215.

ART, 2.

Jurisdice
tion in
civil ac-
tions.
§ 3215.

TITLE 4.

N. ¥. DISTRICT COURTS.  [copz crv. PRoo.

stated in the complaint, does not exceed two hundred and fifty dol-
lars ; except that subdivision third of section 2862, and subdivisions
first and fourth of section 2863 of this act do not apply to an action
brought in either of those courts.

2. An action to recover a penalty, given by the charter of the city
of New-York, or any by-law or ordinance of the common council of
that city, or to recover a penalty given by a statute of the State;
where all the penalties, to recover which the action is brought, do
not exceed two hundred and fifty dollars.

3. An action in behalf of the people of the State, brought by the
direction of the commissioners of public charities and correction of
the city of New-York, or of an overseer of the poor, upon a bastardy
or abandonment bond, in a case where it is prescribed, by a special
statutory provision, that such an action can be maintained in a dis-
trict court.

4, An action upon the bond of a marshal of that city, in a case
where it is prescribed, by a special statutory provision, that such an
action can be maintained in a district court.

Neither of those courts has jurisdiction of any civil action, except
as prescribed in this section.

_ [Subd. 1 and 2 of the foregoing section have been taken from L.
1857, ch. 344, § 3, subd. 1 and 2, as amended by L. 1858, ch. 334, §5;
and L. 1862, ch. 484, § 17. These provisions have been remodelled,
so as to conform this section to the jurisdictional sections of ch. 19,
ante ; but otherwise without substantial change ; except that, in subd.
2, the words, ‘‘to recover,” etc., have been substituted for “upon ;”
the words, ‘“‘of the common council,” have been substituted for “of
the corporation ;” and the words “all the penalties, to recover which
the action is brought ;” have been substituted for “the penalty.”
These changes express more clearly the true meaning of the statute,
which is now, in some respects, obscure. By L. 1879, ch. 71, an action
can be brought for the violation of an ordinance, only in the district
court of the district where the violation ‘* happened.” The amendatory
bill of 1880, whose history has been given at the end of the note to §
2234(*), contained a provision amending subd. 2 of this section, so as to
correspond to the act of 1879; and in view of its failure, the question
arises whether the act of 1879 remains in force. In the editor's
opinion, the act is in force, unaffected by this Code, because it was
not expressly repealed by the general repealing act, L. 1880, ch. 245;
and its provisions are not inconsistent with this section. Section
3 of the act of 1857 is superseded by subd. 1 and 2 of this section,
and the provisions of the next section. It is included in the repealing
act of 1880. But the remaining statutes, conferring jurisdiction upon
the district courts in special cases, are not affected by this section.
Consequently this section merely refers to them. Subd. 3 refers to L.

142

 

(a) Page 327.
OHAP. Xx. | N.Y. DISTRICT COURTS. §§ 3216-3217.

1862, ch. 389; subd. 4 to L. 1862, ch. 484, § 7. As to an action on
a marshal’s bond, see Mauger v. Bernstein, 7 Daly, 340. For a state-
ment of the distinction between these courts and justices’ courts, and
several-interesting rulings respecting the rendering of a judgment
therein, see Dalton v. Loughlin, 4 Abb. N. C., 187.]

§ 3216. In an action, specified in subdivision first or second of
the last section, where the damages claimed, or the value of the
chattel, or of all the chattels claimed, as stated in the complaint, ex-
ceeds one hundred dollars, the defendant may, after issue is joined,
and before an adjournment has been granted upon his application,
apply to the justice of the court in which the action is brought, for
an order removing the action into the court of common pleas for the
city and county of New-York. Such an order must be granted,
upon the defendant’s filing with the clerk an undertaking, in a sum
fixed by the justice, not exceeding twice the amount of the damages
claimed, or twice the value of the chattel, or of all the chattels
claimed, as stated in the complaint, with one or more sureties, to the
effect, that the defendant will pay to the plaintiff the amount of any
judgment, that may be recovered against him in the court of com-
mon pleas, in the action so removed. From the time of the grant-
ing of the order, the court of common pleas has cognizance of the
action; and the clerk of the district court must forthwith deliver to
the clerk of the court of common pleas, all process, pleadings, and
other papers in the action, and certified copies of all minutes, entries,
and orders relating thereto; which must be filed, entered, or re-
corded, as the case requires, in the latter’s office.

[L. 1857, ch. 344, § 3, subd. 3, amended by providing for an action
to recover a chattel ; by limiting the amount of the undertaking, and
by adding the last sentence. The words, “and before an adjourn-
ment,” etc., introduce an important qualification of the right to re-
move an action, as secured by the pre-existing statutes. It is com-
mon, with a certain class of practitioners, to procure as many adjourn-
ments as possible in the district court; and when the defendant is
finally forced to trial, to file a bond for removal, which, under the
former statutes, he might do, at any time before the trial was begun.
Evidently, he ought to make his election, before asking for an adjourn-
ment, and this section so provides. The other amendments are de-
signed, chiefly, to supply obvious defects in the statute. |

§ 3217. An order to arrest the defendant must or may be
granted, in an action brought in either of those courts, in any case

where a warrant of arrest must or may be issued in such an action,
143

ART. 2.

Removal
of certain
actions
into com-
mon pleas,

When
order of
arrest
may be
granted,
§§ 3218-3219, N. ¥. DISTRICT COURTS.  [copz crv. Proc.

TITLE 4,

Proceed-
ings there-
upon.

Requisites
of certain
under-
takings.

as prescribed in the statutes remaining unrepealed after this chapter
takes effect. Such a warrant shall not hereafter be issued.

[This section preserves in force the provisions of L. 1857, ch. 344,
§ 16, defining the cases in which an action may be commenced by war-
rant. These cases do not, in all respects, correspond to those where a
justice of the peace may grant an order of arrest, as provided in
§§ 2894 and 2895, ante. See 18 Hun, 132.]

§ 3218. An order of arrest must direct that the summons ac-
companying it be made returnable, immediately upon the arrest of
the defendant; and it must specify a sum, in which the defendant
may be let to bail. Sections 8179 to 3181, both inclusive, section
3182, except the last sentence thereof, and section 3183 of this act,
apply to an order of arrest, granted in an action in either of those
courts; and to the proceedings upon, and relating to, the execution
thereof. In all other respects, the statutory provisions remaining
unrepealed after this chapter takes effect, which apply to and regu-
late the application for a warrant to arrest a defendant, the granting
and execution thereof, and the proceedings subsequent thereto, ap-
ply to and regulate the application for an order of arrest, the grant-
ing and execution thereof, and the proceedings subsequent thereto.(*)

[The first sentence of this section, which requires the summons to be
made returnable, immediately upon the arrest, is necessary for the
purpose of applying, to the proceedings upon an order of arrest, the
statutes, relating to the proceedings upon a warrant, which was pro-
cess for the commencement of an action. The third sentence makes
such application. The second sentence refers to certain provisions
applicable to the marine court, contained in title 1 of this chapter,
which are substituted in place of the provisions of the act of 1813,
ier applicable to these proceedings. L. 1857, ch. 344, 8§
17-19.

§ 3219. The sum specified in an undertaking, given to procure
a warrant of attachment, must be at least twice the amount of the
plaintiff's demand, as stated in the warrant. Where such an under-
taking, or an undertaking given to procure an order of arrest, is
executed by the plaintiff without any surety, the plaintiff must state,
in the affidavit of justification annexed to the undertaking, in ad-
dition to the other matters required by law, that he is a resident of,
and a householder within, the city of New-York, specifying the
street and the number, or other sufficient identification, of the build-

ing where he resides.
144

 

(a) The sections referred to are on pp. 346, 347.
OHAP. Xx. | N. Y. DISTRICT COURTS. §§ 3220-3221.

[So much of L. 1857, ch. 344, § 21, as is not elsewhere provided for
in this title; amended by adding all of the second sentence, follow-
ing the word “ New-York.”]

§ 3220. Sections 3017 to 3022 of this act, both inclusive, apply
to a judgment rendered in either of those courts, and to the pro-
ceedings subsequent thereto, and in the action wherein it was ren-
dered ; except that the transcript, filed in the office of the county
clerk, must be furnished by the clerk of the district court; that a
judgment, the transcript of which has been so filed, is deemed to be
a judgment of the court of common pleas for the city and county
_ of New-York; and that an execution, upon a judgment so dock-
eted, may be issued, at the option of the judgment creditor, either
by the county clerk, directed to the sheriff, or by the clerk of the
district court, directed to a marshal. In the latter case, it must
be in the same form, and executed in the same manner, as if the
judgment was not so docketed. (*)

[The provisions, to which the first clause of this section refers, are
contained in ch. 19, ante; and relate to the docketing of judgments
of justices of the peace, and the enforcement of judgments so dock-
eted. The remainder of the section has been taken from L. 1857, ch.
344, §§ 48, 51, and 52, without substantial change in their meaning.]

§ 3221. In an action, brought in either of those courts, by a
female, to recover for services performed by her, if the plaintiff re-
covers a judgment for a sum not exceeding fifty dollars, exclusive
of costs, no property of the defendant is exempt. from levy and
sale, by virtue of an execution against property, issued thereupon ;
and, if such an execution is returned wholly or partly unsatisfied,
the clerk must, upon the application of the plaintiff, issue an exe-
cution against the person of the defendant, for the sum remaining
uncollected. A defendant, arrested by virtue of an execution so
issued against his person, must be actually confined in the jail, and
is not entitled to the liberties thereof; but he must be discharged,
after having been so confined fifteen days. After his discharge, an
execution against his person cannot be issued upon the judgment,
but the judgment creditor may enforce the judgment against prop-
erty, as if the execution, from which the judgment debtor is dis-

charged, had been returned without his being taken.
[19] 145

 

(a) The sections referred to are on pp. 69-72.

ART. 2.

Docketing
judg-
ment;
execution

there-
upon.

Enforce-
ment of
certain
judgments
in favor of
working
women.
§§ 3222-3223. ALBANY AND TROY JUST. COURTS. [cops ctv. Proo.

TITLE 4,

[From L. 1867, ch. 516, §§ 1 and 2, condensed $ as amended by L.
1878, ch. 33 and 175; but without material change of meaning,
except that the final sentence has been added. See § 3167, ante.]

Cet § 3222, Section 3131 of this act applies to an action therein speci-
working fied, brought in a district court of the city of New-York; and costs

must be allowed in such an action, as prescribed in that section, in
addition to the costs allowed in a district court, by the statutory pro-
visions remaining in force after this chapter takes effect.

[So much of L. 1871, ch. 936, § 1 (9 Edm. 255), as relates to the dis-
trict courts, revised and amended, in accordance with § 3131, ante,
and as explained in the note to that section. ]

ARTICLE THIRD.

PROVISIONS EXCLUSIVELY APPLICABLE TO THE JUSTICES’ COURTS OF ALBANY
AND TROY.

PRELIMINARY NotEt.— The statutes, relating to the civil juris-
diction and powers of these courts, are the following: The justices’
court of Albany: L. 1821, ch. 47; 2 BR. 8., 224, Part 3, ch. 2, tit. 3;
L. 1841, ch. 156; L. 1844, ch. 347; L. 1845, ch. 16 and ch. 207; L.
1848, ch. 70; L. 1851, ch. 86; L. 1855, ch. 196; L. 1856, ch. 184; L.
1867, ch. 56; L. 1871, ch. 337; L. 1873, ch. 182. The justices’ court
of Troy: 2 R. 8., 224, Part 3, ch. 2, tit. 3, L. 1834, ch. 271; L.
1844, ch. 198; L. 1845, ch. ‘207; L. 1848, ch. 56 and 113; L. 1849,
ch. 340; L. 1866, ch. 189; L. 1870, ch. 598; L. 1872, ch. 129.7 11;
L. 1876, ch. 18, § 4.

SEc. 3223. Jurisdiction in civil actions.
8224, Id.; upon judgment by confession.
8225. Docketing judgments; execution thereupon.

Jurisdic- § 3223. The justices’ court of the city of Albany, and the
civil ac- justices’ court of the city of Troy, have jurisdiction, each within
the city where the court is located, of an action, of which a justice
of the peace has jurisdiction, as prescribed in sections 1737, 2861,
2862, and 2863 of this act; and also of an action to recover a
penalty, given by the charter, or a by-law or an ordinance of the
common council of that city, where the plaintiff demands judgment
for a sum, not exceeding two hundred dollars. Neither of those
courts has jurisdiction of any other civil action; but this section
does not affect the jurisdiction conferred, by the statutory provisions

146
CHAP. Xx.] ROCHESTER MUNICIPAL COURT. $§ 3224-3225.

soe . . c TITLE 5.
remaining in force after this chapter takes effect, upon either of

those courts, in a special proceeding.(*)

[This section supersedes the former statutes, defining the jurisdic-
tion of these courts in civil actions. See Co. Proc., § 67, applicable to
both courts, and superseding all former enactments relating to their
jurisdiction ; L. 1866, ch. 189, § 1, relating to the justices’ court of
Troy; and L. 1834, ch. 271, § 3, revived and made applicable to the
same court, by L. 1870, ch. 598, tit. 2,§ 11; L. 1872, ch. 129, § 11;
and L.1876, ch. 18, § 14. The first sentence has been framed, so
as to correspond to § 3215, ante; and so as to increase the sum for
which an action may be maintained under the charter, etc., as _pre-
scribed in Co. Proc., § 67, from one hundred to two hundred dollars,
in accordance with § 2862, subd. 3, ante. ]

§ 3224. The jurisdiction of each of those courts extends also to Ia {upon
udgmen

the taking and entry of a judgment, upon the confession of a de- 2y confes-

fendant, as prescribed in title sixth of chapter nineteenth of this
act, where the sum confessed does not exceed five hundred dollars.(’)

[This section, which corresponds to § 2864, ante, confers upon these
courts a power, with respect to which the former statutes were of
doubtful meaning. |

§ 3225. The provisions of sections 3017 to 3022 of this act, both Packets

inclusive, apply to a judgment rendered in either of those courts, yetiSion

: . : « there-
and to the proceedings subsequent thereto, and in the action wherein upon,

the judgment was rendered ; except that the transcript, filed in the
clerk’s office of the county wherein the court is located, must be
furnished by the clerk of the court, in which the judgment was
rendered.(*)

[The provisions of chapter 19, ante, which are made applicable by
this section, relate to the docketing, in the county clerk’s office, of a
judgment rendered by a justice of the peace, and the enforcement
thereof by execution issued out of the county court.]

TITLE V.
The municipal court of the city of Lochester.

PreLimINaARY Note—The amendatory bill, referred to in the note
to § 2234, amended the caption of this title, and the two sections con-
tained therein, so as to include the city court of Auburn, created by

147

 

(a) Section 1737 Is upon page 285; sections 2861-2863 on pp. 3-5.
(b) See pp. 67, 68.
(c) See pp. 69-72.
§§ 3226-3227. ROCHESTER MUNICIPAL COURT. [cops ctv. proc.

_————
SS

TITLE 6.

Provisions
of chapter
19 gener-
ally ap-
plicable to
the court
and
judges.

Jurisdic-
tion in
actions
upon con-
tract,

L. 1879, ch. 58. The failure of the amendatory bill leaves the juris-
diction of, and the proceedings in, the latter court substantially unaf-
fected by chapters 19 and 20 of this act.

SEc. 8226. Provisions of chapter 19 generally applicable to the court and judges.
8227. Jurisdiction in actions upon contract.

§ 3226. The provisions of chapter nineteenth of this act,
excluding titles tenth and eleventh thereof, apply to the municipal
court of the city of Rochester, and to the judges thereof; except
so far as they are inconsistent with the next section, or with any
other special provision of statute, remaining unrepealed after this
chapter takes effect. For the purpose of applying the same, the court
is deemed a justice’s court; each judge thereof is deemed a justice
of the peace ; and the city of Rochester is deemed a town of Monroe
county.

{This and the next section are all of the existing legislative provis-
ions, which it was deemed advisable to embody in this act, relating to
this court; which was created by L. 1876, ch. 196; and further regu-
lated by L. 1877, ch. 192; L. 1878, ch. 415, § 8; and L. 1879, ch. 230.]

§ 3227. The court has jurisdiction of an action to recover dam-
ages upon or for breach of a contract, express or implied, other than
a promise to marry, where the sum claimed does not exceed, four
hundred dollars.

[See the note to the last section. ]

148
CHAP, xxI.] JUSTICES’ AND CONSTABLES’ FEES,’

§ 3298.

TITLE 5.

CHAPTER XXI.

(EXTRACTS. )

COSTS AND FEES.

TITLE V.
Sums allowed as fees.

PRELIMINARY Nots.— The following sections are all the provisions
of the Code of Civil Procedure relating to fees of justices and consta-
bles. The references denote the statutes upon which the provisions
were founded ; but they have been considerably changed, either by the
commissioners, or during the passage of the bill through the legislature.

Sxc. 3298. Fees for oaths and acknowledgments.
3312. Compensation of constables attending court.
3322. Fees of a justice of the peace.
3323. Constable’s fees.
3324. Id.; affidavit upon claim for travel fees.
3325. Justice’s court, fees upon a commission.
3326. Id.; jurors’ fees.
3327. Id.; witnesses’ fees.
3328. Id.; fees to be paid before services rendered.
3329. Id.; by whom fees to be paid.
3330. Certain special provisions excepted from this title.
3331. Provision as to change in fees,
3332. This title applies to civil cases only.

§ 3298. Any officer, authorized to perform the services specified
in this section, and to receive fees therefor, is entitled to the follow-
ing fees :

1. For administering an oath or affirmation, and certifying the
same when required, except where another fee is specially prescribed
by statute, twelve cents.

2. For taking and certifying the acknowledgment or proof of the
execution of a written instrument; by one person, twenty-five
cents; and by each additional person, twelve cents: for swearing
each witness thereto, six cents.

[2 BR. S., 637, § 28 (2 Hdm., 658); L. 1840, ch. ae 2 (3 Edm.,
302); L. 1847, ch. 339 (4 Edm., 698); 1 L. 1866, ch. 692, § 1, (6 Edm.,
803).] aa

Fees for
oaths and
acknowl-
edgments.
§§ 3312, 3322. JUSTICES’ AND CONSTABLES’ FEES. [cops civ. Prov.

TITLE 5. . . . eos
Compen- § 3312. A constable is entitled, for attending a sitting of a court
sation of ® : :
constables of record, pursuant to a notice from the sheriff, to the following fees

court. ~~ for each day’s actual attendance: in either of the counties of West-

 

chester or Rockland, such a sum as the board ot supervisors of the
county fix, not exceeding two dollars and fifty cents; in any other
county, except Kings, one dollar and twenty-five cents. Those fees
must be paid by the county treasurer, upon the production of the
certificate of the clerk, stating the number of days that the constable
attended.

[2 R.S., 647, part of § 40 (3 R.S., 5th ed., 927; 2 Edm., 666); L. 1860,
ch. 427; L. 1864, ch. 371; L. 1873, ch. 165.]

Feesofa’ § $822, A justice of the peace is entitled, for the services speci-
justice of :

the peaced fied in this section, to the following fees :

1. In an action brought before a justice of the peace.

For a summons, twenty-five cents.

For an order of arrest, twenty-five cents.

For a warrant of attachment, twenty-five cents.

For a requisition in an action for a chattel, twenty-five cents.

For a subpeena, including all the names inserted therein, twenty-
five cents.

For the acknowledgment of a power of attorney, twenty-five
cents.

For taking an affidavit, or administering an oath, ten cents.

For drawing an affidavit, application, or notice, required by
statute, five cents for each folio.

For drawing a bond or an undertaking, twenty-five cents.

For hearing an application for a commission to examine one or
more witnesses, fifty cents.

For an order for such a commission, and attending, settling, and
certifying interrogatories, fifty cents.

For hearing an application to discharge a defendant from arrest,
or to vacate or modify a warrant of attachment, or increase the
plaintiffs security thereupon, fifty cents.

For an adjournment, except where it is made by the justice upon
his own motion, twenty-five cents.

For a venire, twenty-five cents.

150
cHap. xx1.] JUSTICES’ AND CONSTABLES’ FERS.

For empanelling and swearing a jury, twenty-five cents.

For hearing the plaintiff’s evidence, where the defendant does not
appear, twenty-five cents.

For the trial of a demurrer, twenty-five cents.

For the trial of an issue of fact, where the defendant appears,
seventy-five cents.

For receiving and entering the verdict of a jury, twenty-five cents.

For entering judgment, twenty-five cents.

For filing each paper required by statute to be filed, five cents.

For a transcript of a judgment, twenty-five cents.

For a copy of any paper for which a fee is not expressly prescribed
by law, six cents for each folio.

For an execution, or the renewal of an execution, twenty-five cents.

For making a return upon an appeal from a judgment, two
dollars.

For an order, directing an action or a special proceeding to be
continued before another justice, twenty-five cents.

For services when associated with another justice, in any case
where a fee therefor is not expressly prescribed by law, for each day
actually spent, two dollars.

2. In a special proceeding, or an action not brought before a jus-
tice of the peace.

For a warrant, in a case where a fee therefor is not expressly pre-
scribed by law, twenty-five cents.

For a warrant for the apprehension of a person charged with
being the father of a bastard, fifty cents; for indorsing a warrant,
issued from another county, twenty-five cents.

For services when associated with another justice, in any case
where a fee therefor is not expressly prescribed by law, for each
day actually spent, two dollars.

For a precept or other mandate, whereby a special proceeding is
commenced, in a case where a fee therefor is not specially prescribed
by law, twenty-five cents.

For a view of real property, in a case where it is required by law,
fifty cents.

For a warrant of attachment to arrest a delinquent juror or wit-
ness, twenty-five cents.

151

§ 3322.

TITLE 5.
§ 3322,

NO

TITLE 5,

JUSTICES’ AND CONSTABLES’ FEES. [copE Clv. PROC.

For drawing, signing, and depositing with the clerk, a minute or
record of conviction of such a juror or witness, or of any person
for contempt, in any case where a fee therefor is not specially pre-
scribed by law, fifty cents.

For an execution upon such a conviction before him, twenty-five
cents.

For drawing, copying, and certifying a bond, an undertaking, a
recognizance, or other written security, and filing the same with the
county clerk, or other officer with whom it must be filed, twenty-
tive cents.

For a warrant of commitment for any cause, twenty-five cents.

For a subpeena, including all the names inserted therein, twenty-
five cents.

For a precept to notify a jury, fifty cents.

For empanelling and swearing a jury, twenty-five cents; except
in proceedings to alter or lay out a highway, in which case he is en-
titled to two dollars.

For hearing the matter, concerning which a jury is called, fifty
cents.

For receiving and entering the verdict of the jury, and the order
if any, thereupon, twenty-five cents.

For any seryice for which a fee is not expressly allowed by this
subdivision, and for which, if rendered in an action before a justice,
a fee is allowed by the first subdivision of this section, the fee
allowed in such an action for the same service.

For taking the deposition of a witness, upon an order made, or
commission issued, by a court of record of the State, ora court in
another state or a territory, or a foreign country, ten cents for each
folio.

For making the necessary return and certificate thereto, fifty
cents.

For taking an affidavit or administering an oath, ten cents.

[2 RB. S., 264, § 228 (2 Hdm., 272); L. 1831, ch. 287 (4 Edm., 434);
L, 1857, ch. 775 (4 Edm., 699); L. 1860, ch. 181, § 13, and ch. 493 (4
Edm., 701); L. 1866, ch. 692 (6 Edm., 803); Co. Proc., § 53; L. 1841,
ch. 141 (4 Edm., 546); L, 1875, ch. 334; 2 R. S., 637, § 29 (2 Hdm.,
(58); L. 1861, ch. 11; L. 1873, ch. 146; and ch. 315 (9 Edm., 580,
seen As to highways, see also L, 187%, ch, 465, in Part III of this
work.

152
cHar. xx1.] JUSTICES’ AND CONSTABLES’ FEES. ‘

§ $323, A constable is entitled, for the services specified in this
section, to the following fees :

1. In an action brought before a justice of the peace, or in a
justices’ court of a city.

For serving a summons, twenty-five cents.

For serving a summons and executing an order of arrest, one
dollar.

For serving a summons and levying a warrant of attachment, one
dollar.

For serving a summons and affidavit, and executing a requisition,
in an action for a chattel, one dollar.

For serving an order, directing the action to be continued before
a justice, other than the one before whom it is pending, and for
attending before the latter, fifty cents, and fifty cents in addition if
he so attends with a person in his custody.

For collecting money by virtue of an execution, for every dol-
lar collected, to the amount of fifty dollars, five cents; for every
dollar collected over fifty dollars, two and one-half cents. Where a
judgment or execution is settled after a levy, the constable is
entitled to poundage upon the sum at which the settlement is made,
not exceeding the value of the property levied upon.

For each mile necessarily travelled, going and returning, to serve
a summons or to serve or execute any other mandate, except a
venire, the distance to be computed from the place of abode of the
person served, or the place where it is served, to the place where it
is returnable, ten cents; but where two or more mandates in one
action are served or executed upon one journey, or where a mandate
is served upon or executed against two or more persons in one action,
he is entitled, in all, to only ten cents for each mile necessarily trav-
elled.

For notifying the plaintiff of the execution of an order of arrest
twenty-five cents; and for going to the plaintiff’s residence, or, if he
is found elsewhere, to the place where he is found, to serve such a
notice, for each mile travelled, going and returning, ten cents.

For subpeenaing each witness, not exceeding four, twenty-five
cents.

For notifying the jurors to attend a trial, seventy-five cents.
[20] 153

8 3323.

TITLE 5.

Con-
stable’s
fees,
§ 3324,

TITLE 5,

&

JUSTICES’ AND CONSTABLES’ FEES. [cope crv. Proc.

For taking charge of a jury during their deliberations, fifty
cents.

Where witnesses, not exceeding four, are subpoenaed by any per-
son other than a constable, the fee therefor is thirteen cents each.

2. In a special proceeding.

For notifying jurors to attend to assess damages, in proceedings
relating to highways, two dollars.

For notifying jurors to attend in any other case, unless a fee
therefor is specially prescribed by law, for each person notified, ten
cents; and for each mile actually and necessarily travelled, going

from and returning to his place of residence, ten cents.

Id.; affi-
davit upon
claim for
travel
fees.

For serving a precept or other mandate, by which the special pro-
ceeding is commenced, twenty-five cents.

For serving a warrant, in any case where a fee therefor is not
specially prescribed by law, fifty cents.

For serving an order, directing the special proceeding to be con-
tinued before a justice other than the one before whom it is pend-
ing, and for attending before the latter, with or without a person in
his custody, one dollar.

For arresting and committing any person, pursuant to process,
one dollar. : ,

For subpeenaing each witness, not exceeding four, twenty-five
cents. .

For each mile necessarily travelled, going and returning, to serve
or execute a mandate, the distance to be computed from the place
where it is served or executed, to the place where it is returnable,
unless a different rate of travel fees upon the service or execution
thereof is specially prescribed by statute, ten cents. Where two or
more mandates are served or executed in one special proceeding, the
limitation upon the amount of travel fees specified in the last pre-
ceding subdivision applies.

[2 R. S.,265, § 228 (2 Edm., 273); L. 1866, ch. 692 (6 Edm., 805); L.
1869, ch. 820 (7 Edm., 479); L. 1875, ch. 334; L. 1878, ch. 315, § 6
(9 Edm., 595).]

§ 3324. A constable, who charges any travelling fees, must show,
by affidavit, that the travel was necessary to perform the service

with respect to which it is charged ; that no more miles are charged
154
CHAP, XXI. | FEES IN JUSTICES’ COURTS. $§ 3325-3328.

TITLE 5.

for, than were actually and in good faith travelled for that purpose ;
that he had, at the time, no other official or private business upon the
route so travelled; and that the travelling fees are charged upon one
mandate only, which must be attached to or described in the affidavit.
The justice taxing the fees must be satisfied that the miles charged
for were actually and necessarily travelled, as stated in the affidavit.

[L. 1869, ch. 820, § 2 (7 Edm., 480.]

§ 3325. A party recovering costs in an action before a justice of
the peace, in whose behalf a commission has been issued, and who
introduces in evidence a deposition taken thereunder, is entitled to
recover his actual disbursements thereupon, not exceeding the fol-
lowing sums: commissioner’s fees for taking’ and returning testi-
mony, one dollar; each subpoena issued, or oath administered, by
the commissioner, six cents; expense of serving each subpcena,
twenty-five cents; each witness’s fees for each day’s attendance be-
fore the commissioner, twenty-five cents; postage for sending and
returning the commission and papers annexed thereto, one dollar.

[L. 1841, ch. 138, § 3 (4 Edm., 546).]

§ 3326. Except as otherwise specially prescribed by law, a per-
son, notified to attend as a juror, is entitled to twenty-five cents, for
attending and serving, upon the trial of an action or the hearing of a
special proceeding, before a justice of the peace; and to ten cents
for attending to serve, where he is not sworn.

[2. R. S., 265, § 228 (2 Edm., 273); L. 1866, ch. 692 (6 Edm., 806).]

§ 3327. A witness is entitled to twenty-five cents, for each day’s
actual attendance, before a justice of the peace, in an action or a
special proceeding, or before a commissioner appointed by a justice
of the peace, or before a justice of the peace taking a deposition to
be used in a court, not of record, of another state, or a territory of
the United States.

[Same section of the R. 8.; L. 1866, ch. 692, § 10.]

§ 3328. A justice of the peace, or a constable, juror, or witness,
before a justice of the peace, is not obliged to render any service
155

Justice’s
court,
fees upon
a com-
mission,

Id. ; juror’s
fees.

Id.; wit-
nesses,
fees.

Id.; fees
to be paid
before
services
rendered.

o
§§ 3329-3332. FEES IN JUSTICES’ COURTS. [CODE CIV. PROC.

TITLE 5.
a

Id.; by
whom fees
to be paid

Certain
special
provisions
excepted
from this
title.

Rrovision
as to
change in
fees.

This title
applies to
civil cases
only.

specified in this title, without the previous payment or tender of his
fee therefor.

[See 2 R. §., 650, § 6 (2 Edm., 670) ; and § 3281,](«)

§ 3329. In an action before a justice of the peace, if any services
are rendered for a party, and he neglects to pay the fees allowed
therefor by law, the other party may pay those fees, and the amount
thereof must be taxed as part of his costs, if he recovers costs.

[New.]

§ 3330. The allowance of a fee, by this title, does not apply to a
case, where special provision is otherwise made by statute for com-

pensation for a particular service.
[New. ]

§ 3831. Where an officer has, when his* title takes effect, com-
menced the performance of a service, for which a fee is allowed by
the statutes heretofore in force, he is entitled to the fee so allowed,
for the completion of that service, and he is not entitled to the fee
for the same, or a corresponding service, allowed by this title.

[ New. |

§ 3332, Except as otherwise expressly prescribed therein, this
title does not apply to a service rendered in a criminal action or
special proceeding, in a court or before an officer.

['This leaves the fees of justices, constables, etc., in criminal cases,
to be regulated by the former statutes, which for that purpose are not
affected by this Code, or the general repealing act of 1880.]

156

*Error for “this.” (a) See page 352.

 
PART II.

PROVISIONS OF THE CODE OF CIVIL PRO.
CEDURE, APPLICABLE TO PROCEED.
INGS BEFORE JUSTICES OF THE
PEACE, AND ALSO BEFORE
OTHER TRIBUNALS.

PRELIMINARY Note.—This Part contains all the provisions of the
Code of Civil Procedure, which relate to proceedings before justices
of the peace, either because they are general by their terms, and
therefore include justices’ courts, with others; or because, being
primarily applicable only to proceedings in courts of record, they are
applied to proceedings in justices’ courts by express references thereto,
in provisions relating to the latter tribunals.

The application to particular courts, etc., of the provisions of the
Code of Civil Procedure is regulated by § 3347, which will be found
in this Part; but some explanations may be required, in order fully
to understand the effect of that section.

In the first place, attention is called to the qualification at the be-
ginning of § 3347, whereby it is provided, that where a particular pro-
vision ‘‘ expressly designates the courts, persons, or proceedings, affected
thereby,” it is to be deemed excluded from the general directions sub-
sequently given. By the operation of this qualification, many sections
are applicable to courts not of record, and therefore included in this
Part, although they are found in chapters, which are, by the provisions
of § 3347, confined to proceedings in courts of record ; for instance
§ 1176 and § 1179, each of which is, by its terms, applicable to “a court
of record or not of record.” Secondly, it will be seen, that no special

157
JUSTIOE'S PRELIMINARY NOTE.

UAL.

directions are given in § 3347, with respect to the application to particu-
lar courts, of chapters 1, 2,3, and4; chapter 9; article 3 of title 1 and
title 2 of chapter 11; chapter 12; chapters 14, 15, 16, 17, 18, 19, 20,
and 22, besides certain divisions of, or particular sections contained
in, other chapters, the remainder of which is made applicable only to
courts of record. Consequently the application of the provisions con-
tained in those chapters, or parts of chapters, is regulated by the prin-
ciples which govern the application of any other statute. They bind
all persons who, and all courts which, can be affected thereby; so that
the application to justices’ courts of each of those provisions, in the
absence of special directions, contained in the same or some other pro-
vision, will be regulated by its subject-matter. If it relates to causes
of action or proceedings, of which a justice of the peace has no juris-
diction, or gives directions which cannot be followed in a justices’
court (as, for instance, where it requires action by the sheriff or the
clerk), it is evidently not applicable. So also where, without being
itself inapplicable for these reasons, it is connected by close interde-
pendence with others which are inapplicable; as for instance, § 1902,
giving a cause of action for causing death by negligence, between
which and § 1904 there is such an inseparable connection, that the
former section is not deemed applicable to justices’ courts. With these
principles present to the mind, it is believed that the reasons for in-
cluding in or rejecting from this Part, particular sections of the Code
of Civil Procedure, as applicable or not applicable, by their terms or by
§ 3347, to proceedings before justices of the peace, will be made ap-
parent with little difficulty.

The other class, consisting of provisions, which, not being primarily
so applicable, are applied by express references, calls for no special ex-
planation. Those sections are distinguished in this Part, by asterisks
appended to their sectional numbers, and in a foot note to each is a
reference to the section whereby it 1s so applied. In applying them,
the qualifying clause of § 3134, on page 127, ante, must not be over-
looked.

158
CHAP. 1] COURTS. 8§ 3, 4.

PART II.

 

CHAPTER I.

(EXTRACTS.)

GENERAL PROVISIONS RELATING TO COURTS, AND
THE MEMBERS ,AND OFFICERS THEREOF.

TITLE I.

The courts of the State; their general powers and attributes, and
general regulations pertaining to the exercise thereof.

ARTICLE FIRST.
ENUMERATION AND CLASSIFICATION.

§ 3. [Amended, 1877.] Each of the following courts of the State Courts not

of record.
is a court not of record:

1. Courts of justices of the peace in each town, and in certain
cities and villages.

2. Courts of special sessions of the peace in each town, and in
certain cities and’ villages.

3. The district courts in the city of New-York.

4, The police courts in certain cities and villages,

5. The justices’ court of the city of Troy.

6. The municipal court of the city of Rochester.

[Co. Proc., part of § 9; L. 1834, ch. 271, and acts amending the
same (3 R. §., 5th ed., 417); L. 1872, ch. 129, tit. 2, § 11; and L. 1876,
ch. 196.]

§ 4. [Amended, 1877.] Each of those courts shall continue to General

provision

. Bde Ait yee os Ux t
exercise the jurisdiction and powers now vested in it by law, accord- jurisaic-
5 . . tion, etc.
ing to the course and practice of the court, except as otherwise pre-

scribed in this act.

[From Co. Proc., § 10, and part of § 469. The object of this pro-
vision is to preserve the existing practice, etc., wherever this act is
not applicable. ]

159
§§ 5-22. COURTS. [CODE CIV. PROC.

JUSTICES
oman ARTICLE SECOND.
GENERAL POWERS AND ATTRIBUTES OF TIE CoorTs.
a § 5. [Amended, 1879.] The sittings of every court within this
%0 ben State shall be public, and every citizen may freely attend the same,

except that in all proceedings and trials in cases for divorce, on ac-
count of adultery, seduction, abortion, rape, assault with intent to
commit rape, criminal conversation, and bastardy, the court may, in
its discretion, exclude therefrom all persons who are not directly
interested therein, excepting jurors, witnesses and officers of the
court.

[Taken from 2 R. 8. 274, Part 3, ch. 3, tit. 1, §1 (3 RB. 8. 5th ed.,
465; 2 Edm., 284), and modified by L. 1879, ch. 210.]

Courts not ~=9§ 6. A court shall not be opened, or transact any business on
to sit on

Sunday;, Sunday, except to receive a verdict or discharge a jury. An ad-
a journment of a court on Saturday, unless made after a cause has
been committed to a jury, must be to some other day than Sunday.
But this section does not prevent the exercise of the jurisdiction of
a magistrate, where it is necessary to preserve the peace, or, in a
criminal case, to arrest, commit or discharge a person charged with

an. offence.

{Id., § 7%, adding the words, ‘commit or discharge,” in the last
line. See, also, Part III, page 382.]

No im- § 16. Except in a case where it is otherwise specially prescribed by
prison-
monty” law, a person shall not be arrested or imprisoned for disobedience to
due on

contract. a judgment or order, requiring the payment of money due upon a
contract, express or implied, or as damages for non-performance of a
contract.

[Sec. 1 of the non-imprisonment act, L. 1831, ch. 300 (3 R.8., 5th
ed., 126; 4 Edm., 465), amended so as to adapt it to the modern prac-
tice and procedure. ]

Writs, ete. § 22. Except where it is otherwise specially prescribed by law, a
in the

name of i ° i

theneonla, Waib or other process must be in the name of the people of the State,
Wnglicn; and each writ, process, record, pleading or other proceeding in a

abbrevia- ‘ :

tions. court, or before an officer, must be in the English language, and,
unless it is oral, made out on paper or parchment, in a fair legible
character, in words at length, and not abbreviated. But the proper

160
oHaP. 1] JUDGES, ETO. 8§ 46-47.

and known names of process, and technical words, may be expressed
in appropriate language, as now is, and heretofore has been cus-
tomary ; such abbreviations as are now commonly employed in the
English language may be used; and numbers may be expressed by
Arabic figures, or Roman numerals, in the customary manner.

[2 R.8., 275, Part 3, ch. 3, tit. 1, §§ 8 and 9 (3 R. S., 5th ed., 467;
2 Kdm., 285), consolidated. ]

TITLE II.

Provisions of general application, relating to the judges, and cer-
tain other officers of the courts.

ARTICLE FIRST,

GENERAL Powers, DuTiEs, LIABILITIES AND DISABILITIES OF JUDGES, AND
ess eeee OFFICERS ACTING JUDICIALLY. a duieeee

§ 46. A judge shall not sit as such in, or take any part in the
decision of, a cause or matter to which he is a party, or in which he
has been attorney or counsel, or in which he is interested, or in
which he would be excluded from being a juror, by reason of con-
sanguinity or affinity to either of the parties. A judge, other than
a judge of the court of appeals, shall not decide or take part in the
decision of a question, which was argued orally in the court, when
he was not present and sitting therein as a judge.

[2 RB. S., 275, Part 3, ch. 3, tit. 1,§ 2 (3B. S., 5th ed., 465; 2 Edm.,
284); L. 1847, ch. 280, § 81 (3 R. S., 5th ed., 466; 4 Edm., 580); and
L. 1850, ch. 41, § 2 (4 Edm., 539); consolidated without material
change, except that, in the last line but one, the word, “orally”, has
been added, because taking part in the decision of a cause submitted
is not within the intent of the statute. The word, “judge”, includes
a justice of the peace. See § 3343, subd. 3, post. ‘This section ap-
plies to a surrogate. Darling v. Pierce, 15 Hun, 542. But where a
judge’s interest is minute or remote, and he has exclusive jurisdiction,
he may act to prevent a failure of justice. Matter of Ryers, 72 N.
Y., 1. In the latter case, the authorities on the subject of disqualifi-
cation are discussed. See also Birdsall v. Fuller, 11 Hun, 204.]

§ 47. A judge shall not, directly or indirectly, be interested in the
costs of an action or special proceeding, brought before him, or in a
court of which he is, or is entitled to act as a member, except an
action or a special proceeding to which he is a party, or in which he

is interested.
[21] 161

PART I.

Judge not
to sit
where he
is a party,
etc., or
has not
heard
argument.

Judge not
to be in-
terested
in costs.
§§ 48-49. JUDGES, ETC, [coDE crv. PRoo.

JUSTICE’S
MANUAL,

Disability
of judge
in certain
appeals.

Judge or
judge’s
partner
not to
ractice in
is court.

2K. 8., 275, Part 3, ch. 3, tit. 1, part of § 5 (3 R.S., 5th ed., 465;
2 Kdm., 285).]

§ 48. Where an appeal has been taken to a court of sessions, in
which a town in the county is interested, a justice of the peace, who
is a resident of that town, shall not sit as a justice of sessions, upon
the hearing of the appeal. Except as specified in this section, a
judge of acourt of record is not disqualified, from hearing or decid-
ing an action or special proceeding, matter, or question, by reason of
his being a resident or a tax-payer of a town, village, city, or county,
interested therein.

[2 RB. 8., 210, Part 3,ch. 1, tit. 5,§ 10 (3 R.S., 5th ed., 303; 2 Edm.,
219), amended so as to correspond to the existing organization of the
courts, and by adding the second sentence. In the first sentence, the
word, “judge”, has also been omitted, so as to restrict the provision
to a justice of the peace. The section as it stands in the R.8., seems
to have no application, except in cases of bastardy. ‘There appears to
be no sufficient reason for disqualifying the county judge, from taking
part in the decision of appeals in such matters, on account of his be-
ing an inhabitant of the town interested ; especially as the retention
of the disqualification renders it necessary, in such cases, to procure
the attendance of a county judge of another county, in order to con-
stitute the court. Perhaps it would be better to repeal, also, the dis-
qualification in regard to justices of sessions; but its retention will

lead to little inconvenience, as their places can readily be supplied,
from the justices of the peace of the county.]

§ 49. A judge shall not practice or act as an attorney or coun-
sellor, in a court of which he is, or is entitled to act as a member, or
in a cause originating in that court. A law partner of, or person
connected in law business with a judge, shall not practice or act as
an attorney or counsellor, in a court, of which the judge is, or is
entitled to act as a member, or in a cause originating in that court ;
except where the latter is a member of a court, ex-officio, and does
not officiate or take part, asa member of that court, in any of the
proceedings therein. An ex-officio judge shall not, directly or indi-
rectly, be interested in the costs, or the compensation of an attorney
or counsellor, in the court of which he is ex-otticio a judge.

[2 RK. 8., 275, Part 3, ch. 3, tit. 1, § 4, and part of § 5 (3 R.S., 5th
ed., 465; 2 Hdm., 284); L. 1839, ch. 303, as amended by L. 1841,
ch. 272; and id., ch. 346 (3 B.S., 5th ed., 465, 466; 4 Edm., 550) ;
L. 1847, ch. 280, part of § 82 (3 R. §., 5th ed., 466; 4 Edm., a0} ;
L. 1847, ch. 470, §§ 48, 50, and part of § 51 (3 BR. 8., 5th ed, 367,
466; 4 Edm., 590). This section contains, in a condensed form, the
substance of the numerous sections referred to.]

162
CHAP. I.] JUDGES, ETC. §§ 50-53.
§ 50. [Amended, 1877.] The law partner or clerk of a judge shall sane is

Judge's
. : : artoer or
not practice before him, as attorney or counsellor in any cause, or be Clerk not

to practice

employed in any cause which originated before him. A judge shall] before
him ;
not act as attorney or counsellor in any action or special proceeding, practic
. « . . . In a cause
which has been before him in his official character. which has
een be-

[L. 1847, ch. 470, part of § 51, and § 52 (3 R. S., 5th ed., 367, 466; fore bim.
4 Edm., 590).]

§ 51. A judge or other judicial officer, shall not demand or receive Judge not
va.

1 r OlVi 1 1 1 fees for
a fee or other compensation, for giving his advice in a matter or fes for |

thing pending before him, or which he has reason to believe will be ag

brought before him for decision ; or for preparing a paper or other
proceeding, relating to such a matter or thing; except a justice of
the peace, in a case where a fee is expressly allowed to him by law.

[2 R. 8., 275, Part 3, ch. 3, tit. 1,§ 6 (8 RB. S., 5th ed., 466; 2 Hdm.,
285), amended in conformity to § 21 of the judiciary article of the
constitution. ]

§ 52. In case of the death, sickness, resignation, removal from Substitu-
tiono

office, absence from the county, or other disability of an officer, before one officer

whom a special proceeding has been instituted, where no express aan

provision is made by law for the continuance thereof, it may be con- fog
tinued before the officer’s successor, or any other officer residing in
the same county, before whom it might have been originally insti-
tuted ; or, if there is no such officer in the same county, before any
officer in an adjoining county, who would originally have had juris-
diction of the subject-matter, if it had occurred or existed in the

latter county.

[2 RB. 8., 284, part 3, ch. 3, tit. 2, § 51 (3 KR. S., 5th ed., 475 ; 2 Hdm.,
295). |

§ 53. At the time and place specified in a notice or order, for a proceed. -

party to appear, or, for any other proceeding to be taken, or at the substin
time and place specified in the notice to be given, as prescribed in ofcer.
this section, the officer substituted as prescribed in the last section,

or in any other provision of law, to continue a special proceeding
instituted before another, may act, with respect to the special pro-

ceeding, as if it had been originally instituted before him. But a
proceeding shall not be taken before a substituted officer, at a time

or place, other than that specified in the original notice or order, until

163
§§ 55-62.

JUSTICH’S
.MANUAL,

Party may

appear in
erson or
y at-

tornev.

Sheriff,
etc., not
to prac-
tice.

ATTORNEYS AND COUNSELLORS. [copE crv. PRoc.

notice of the substitution, and of the time and place appointed for
the proceeding to be taken, has been given, either by personal ser-
vice or by publication, in such manner and for such time as the sub-
stituted officer directs, to each party who may be effected* thereby,
and who has not appeared before either officer. Where, after a hear-
ing has been commenced, it is adjourned to the next judicial day,
each day to which it is so adjourned, is regarded, for the purposes
of this section, as the day specified in the original notice or order,
or in the notice to appear before the substituted officer, as the case
requires.

[Id., §§ 52 and 53, consolidated, and amended so as to remove sume
ambiguities and obscurities of expression. ]

ARTICLE SECOND.
ATTORNEYS AND COUNSELLORS AT Law.

§ 55. A party to a civil action, who is of full age, may prosecute
or defend the same in person or by attorney, at his election, unless
he has been judicially declared to be incompetent to manage his
affairs. Each provision of this act, relating to the conduct of an
action, wherein the attorney for the party is mentioned, includes a
party prosecuting or defending in person, unless otherwise specially
prescribed therein, or unless that construction is manifestly repug-
nant to the context. If a party has an attorney in the action, he
cannot appear to act in person, where an attorney may appear or act,
either by special provision of law, or by the course and practice of

the court.

a

[2 R.8., 276, Part 3, ch. 3, tit. 1, § 11 (8 R. S., Sth ed, 467; 2
Edm., 285), with the addition of a clause containing a rule of con-
struction, rendered necessary by the omission of the words, ‘* party
or”, before *‘attorney”, in subsequent portions of this act. The first
sentence has also been so framed as to exclude an habitual drunkard,
as well as a lunatic, etc., from the operation of the provision, allowing
a party to appear in person, or by attorney. The right to appear by
attorney is not necessarily restricted to proceedings before judgment.
Martine v. Lowenstein, 68 N. Y., 456.]

§ 62. A sheriff, under-sheriff, deputy-sheriff, sheriff’s clerk, con-
stable, coroner, crier, or attendant of a court, shall not, during his
continuance in office, practice as an attorney or counsellor in any

court.

[Id., § 27, extended, so as to include other ministerial officers. ]
164
CHAP. I.] ATTORNEYS AND COUNSELLORS,

§ 63. [Amended, 1879.] A person shall not ask or receive, di-
rectly or indirectly, compensation for appearing as attorney in a
court in the city and county of New-York, or in the county of
Kings, or make it a business to practice as an attorney in a court in
either of those counties, unless he has been regularly admitted to
practice as an attorney or counsellor in the courts of record of the
State.

[L. 1862, ch. 484, § 1; and id. ch. 538, § 1; L. 1879, ch. 542. See
§ 2889.](*)

§ 64. A person who violates the last section is guilty of a misde-
meanor, and shall be punished by imprisonment in the county jail,
not exceeding one month, or by a fine of not less than one hundred
dollars, or more than two hundred and fifty dollars, or by both such
fine and imprisonment. A judge or justice of the peace, within
the city and county of New-York, or the county of Kings, who
knowingly permits to practice in his court, a person who has not been
regularly admitted to practice in the courts of record of the State,
is guilty of a misdemeanor, and shall be punished as prescribed in
this section. But this and the last section do not apply to a case,
where a person appears in a cause, to which he is a party.

[Id.; and § 2 of ch. 484. See § 2889.](*)

§ 66. [Amended, 1879.] The compensation of an attorney or
counsellor for his services, is governed by agreement, express or im-
plied, which is not restrained by law. From the commencement of
an action or the service of an answer containing a counterclaim, the
attorney who appears for a party has a lien upon his client’s cause
of action or counterclaim, which attaches to a verdict, report, decision
or judgment in his client’s favor and the proceeds thereof in whoso-
ever hands they may come; and cannot be affected by any settle
ment between the parties before or after judgment.

[See Co. Proc., § 803. The second sentence added in 1879. For
rulings made under the section for which this is a substitute, and this
section, see Davidson v. Alfaro, 16 Hun, 353 ; Whitehead v. Kennedy,
60 N. Y., 462; Wright v. Wright, 70 N. Y., 96; Coughlin v. N.Y.
C. & H. R. R. BR. Co., V1 N. Y., 448; Quincey v. Francis, 5 Abb. N.
C., 286; and Saunders v. Gillett, 7 Week. Dig., 336. “ Whosoever”
is an engrosser’s error for “ whosesoever.”]

165

 

(a) See p. 16.

§§ 63-66.

PART II.

None but
attorneys
to practice
in New-
York and
Kings
counties.

Penalty
for viola-
tion, or
suffering
violation
of last
section.

Compen-
sation and
lien of
attorney,
etc.
§§ 101-103, EXECUTION OF MANDATES. [coDE CIV. PRoc.

JUSTICE'S
MANUAL.

 

 

CHAPTER II,

(EXTRACTS. )

POWERS, DUTIES, AND LIABILITIES OF A SHERIFF,
OR OTHER MINISTERIAL OFFICER, IN THE EXECU-
TION OF THE PROCESS OR OTHER MANDATE OF
A COURT OR JUDGE, IN A CIVIL CAS2.

TITLE I.

Provisions relating to the execution of civil mandates generally.

Copy of § 101. [Amended, 1877.] A sheriff or other officer, serving a

process,

ayivegeg’? mandate, must, upon the request of the person served, deliver to

when . . :
served. him a copy thereof, without compensation.

[Ia., § 76.]

Sheriff to  § 102. [Amended, 1877.] A sheriff, or other officer, to whom a

execute

‘Oc iS . . ° ‘s
ttesmay mandate is directed and delivered, must execute the same according
return by

mail, to the command thereof, and make return thereon of his proceed-
ings, under his hand. For a violation of this provision, he is liable
to the party aggrieved, for the damages sustained by him ; in addi-
tion to any fine, or other punishment or proceeding, authorized by
law. A mandate directed and delivered to a sheriff may be returned,
by depositing the same in the post-office, properly inciosed in a post-
paid wrapper, addressed to the clerk, at the place where his office is
situated ; unless the officer, making the return in the name of the
sheriff, resides in the place where the clerk’s office is situated.

[Id., § 77, with the addition of the concluding sentence, which has
been taken from L. 1850, ch. 225, § 3 (3 R. 8., 5th ed., 739; 4 Edm.,
699). ]

Liability,  § 103. [Amended, 1877.] A sheriff, or other officer, to whom is

for neg-
lect i i ; ' :
special delivered for service or execution, a mandate, authorized by law to

roceed- ' P ¥ ‘ .
ngs. be issued, by a judge or other officer, in a special proceeding, who

166
OHAP. II.] EXECUTION OF MANDATES, §§ 104-106.

PART II.

 

 

wilfully neglects to execute the same, may be fined by the judge, in
a sum not exceeding twenty-five dollars, and is liable to the party
aggrieved, for his damages sustained thereby.

[2 R.8., 551, Part 3, ch. 8, tit. 17,§ 3 (3 R.5., 5th ed., 865; 2
Edm., 571), omitting the clause, requiring the sheriff to execute the
process; which is covered by the last section. The final clause is
new. |

§ 104.* If a sheriff, to whom a mandate is directed and delivered, cede

finds, or has reason to apprehend, that resistance will be made to the Mand the

of the

execution thereof, he may command all the male persons in his county,
O Over-

county, or as many as he thinks proper, and with such arms as he gome Te

directs, including any military organization armed and equipped, to
assist him in overcoming the resistance, and, if necessary, in arrest-
ing and confining the resisters, their aiders and abettors, to be dealt
with according to law.(*)

[2 R.8., 441, Part 3, ch. 7, tit. 6, § 80 (3 R.8., 5th ed., 740; 2
Edm., 459), as amended by L. 1845, ch. 69, $18. The original ap-
plies to a sheriff, “or other public officer”. The latter words were,
perhaps, intended to include the under-sheriff, or a deputy-sheriff, but
they are broad enough to include a constable, marshal, ete. The
power conferred by this section isso broad, and its exercise requires so
much discretion and sound judgment, that it ought not to be vested
in any officer of lower grade than the sheriff. The words, “or other
public officer”, have therefore been omitted; and a provision has been
framed, in § 3158 of this act, for the transfer to the sheriff, of a man-
date, the execution of which by a constable is resisted. |

§ 105.* The sheriff must certify to the court, from which or by Names of
whose authority the mandate was issued, the names of the resisters, be ce
their aiders and abettors, as far as he can ascertain the same, to the

end that they may be punished for their contempt of the court.(*)
[Id., § 81, amended in like manner.]

§ 106.* A person, commanded by a sheriff to assist him, as pre- punish- -
. : : ‘ ment for
scribed in the Jast section but one, who, without lawful cause, refuses ee

sist.
or neglects to obey the command, is guilty of a misdemeanor.(*)
[Id., § 82, amended in like manner.]

167

 

(a) See 23158, page 135.
§§ 110-111. CIVIL PRISONERS. [CODE CIV. PROC.

JUSTICE'S
MANUAL.

Prisoner,
how kept.

Support of
risoner in
ings

county.

TITLE II.

Provisions relating to the ewecution, by a sheriff, of a mandate
against the person.

ARTICLE FIRST.

ARRESTING, CONVEYING TO JAIL, AND COMMITTING A PRISONER,

§ 110.* A person arrested, by virtue of an order of arrest, in an
action or special proceeding brought in a court of record; or of an
execution issued upon a judgment rendered in a court of record; or
surrendered in exoneration of his bail; must be safely kept in cus-
tody, in the manner prescribed by law, and, except as otherwise
prescribed in the next two sections, at his own expense, until he
satisfies the judgment rendered against him, or is discharged accord-
ing to law.(*)

[2 R. 8., 376, Part 3, ch. 6, tit. 5, §§ 76 and 77 (3 R. S., 5th ed.,
659 ; 2 Edm., 391), consolidated, and extended so as to include a per-
son taken under an order of arrest. |

§ 111.* In the county of Kings, when the sheriff has actually con-
fined in jail a prisoner so arrested or surrendered, he must serve
upon the plaintiffs attorney, as prescribed by law for the service of
a paper upon an attorney in an action, a written notice, stating that
he has so confined the prisoner, and that the plaintiff is required to
make the payments specified in this section, in default whereof the
prisoner will be discharged. Within three days after service of the
notice, or six days, if the service is by mail, the plaintiff must pay
to the sheriff the sum of twenty-five dollars, for the support of the
prisoner for the first twenty days, after his actual confinement in
jail, unless in the meantime he is discharged or admitted to the jail
liberties. At or before the expiration of each subsequent period of
twenty days, during which the prisoner has been so confined, the
plaintiff must pay a like sum to the sheriff, for the prisoner’s sup-
port during the ensuing twenty days. If a payment required by
this section is not made, the prisoner must be discharged. The
sheriff must apply all the money so paid, to the support of the pris-
oner, unless he is admitted to the jail liberties or discharged; in

168

 

(a) Applied to arrests in justice’s courts by 2 3082, p. 76.
CHAP. I1.] CIVIL PRISONERS. 8§

which case he must refund to the plaintifi’s attorney a ratable por-
tion of the last payment, according to the period of time, during
which the prisoner was so confined. (*)

[L. 1869, ch. 813, amended so as to remove obscurities of expres-
sion, and prescribe intelligibly the mode of proceeding. The effect
of the words, ‘‘or surrendered ”, is to abrogate one of the rulings in
Cozine vy. Walter, 55 N. Y., 304.]

§ 112.* In any county except Kings, if a prisoner, actually con-
fined in jail, makes oath before the sheriff, jailor, or deputy-jailor,
that he is unable to support himself during his imprisonment, his
support is a county charge.(*)

[L. 1875, ch. 251, §$ 1 and 4. The original also excepts Monroe
county; but the statutes, passed prior to that year, appear to contain
no provision relating to the support of civil prisoners, in that county,
although the support of criminal prisoners is provided for by L. 1858,
ch. 271, § 1, and L. 1874, ch. 463.]

§ 113. A sheriff or other officer shall not charge a person, whom
he has arrested, with any sum of money, or demand, or receive from
him money, or any valuable thing, for any drink, victuals, or other
thing, furnished or provided for the officer, or for the prisoner, at
any tavern, ale-house, or public victualing or drinking-house.

[2 R.8., 426, Part 3, ch. 7, tit. 6, §1(3 RS. dthed., 724; 2 Hdm.,
444),]

§ 114. A sheriff or other officer shall not demand or receive from
a person, arrested by him, while in his custody, a gratuity or reward,
upon any pretence, for keeping the prisoner out of jail; for going
with him or waiting for him to find bail, or to agree with his ad-
versary; or for any other purpose.

[Id., § 2, amended so as to make the provision more stringent and
explicit. This and the last section are habitually violated with im-
punity ; perhaps, because it is supposed that they are not applicable
to process issued under the modern practice. Their re-enactment, in
the form in which they stand in this act, will, at least, remove that
doubt.]

§ 115. If a person arrested is kept in a house, other than the jail
of the county, the officer arresting him, or the person in whose cus-
tody he is, shall not demand or receive from him any greater sum,
for lodging, drink, victuals, or any other thing, than has been there-

[22] 169

(a) Applied to arrests in justices’ courts by § 3032, page 76.

 

112-115.

PART II.

Id.; in
other
counties.

Charges
for food,
etc., when
prohib-
ited,

Also for
waiting
for pris-
oner,

Rates of
charges

for lodg-
ing, etc.
§§ 116-132. CIVIL PRISONERS. [CODE CIV. PROG.

JUSTICE’S

MANUAL,

Prisoner
may send
for neces-
saries,

Charges
for rent,
etc., pro-
hibited.

Officer to
permit
access for
service of
papers.

tofore prescribed by the court of sessions of the county; or, if no
rate has been prescribed by the court of sessions, than is allowed by
a justice of the peace of the same town or city, upon proof that the
lodging or other thing was actually furnished, at the request of the
prisoner. And such an officer or person shall not, in any case or
upon any pretext, demand or receive compensation for strong, spirit-
uous, or fermented liquor, or wine, sold or delivered to the prisoner.
[Id., § 3.]

§ 116. A prisoner so kept in a house, may send for and have beer,
ale, cider, tea, coffee, milk, and necessary food, and such bedding,
linen, and other necessary things, as he thinks fit, from whom he
pleases, without detention of the same or any part thereof by, or
paying for the same, or any part thereof to, the officer arresting him,
or the person in whose custody he is.

[Id., § 4]

§ 117. A sheriff, jailor, or other officer, shall not demand or re-
ceive money, or any valuable thing, for chamber rent in a jail; or
any fee, compensation, or reward, for the commitment, detaining in
custody, release, or discharge of a prisoner, other than the fees ex-
pressly allowed therefor by law.

[Id., § 5.]
ARTICLE SECOND.

Jaius; JAtL DISCIPLINE; AND REGULATIONS CONCERNING THE CONFINEMENT
AND CARE OF PRISONERS.

§ 132. Subject to reasonable regulations, which the sheriff may
establish for that purpose, a sheriff, jailor, or other officer, who has
the custody of a prisoner, must permit such access to him as is ne-
cessary, for the personal service of a paper in an action or special pro-
ceeding, to which the prisoner isa party, and which must be per-
sonally served.

[New.]

170
CHAP. III.] COURTS.

CHAPTER III.

CIVIL JURISDICTION OF THE PRINCIPAL COURTS
OF RECORD; ORGANIZATION, MEMBERS, AND
OFFICERS THEREOF; DISTRIBUTION AND DIS-
PATCH OF BUSINESS THEREIN.

TITLE Il.

The superior city courts.

ARTICLE THIRD.
PROVISIONS EXCLUSIVELY APPLICABLE TO THE SUPERIOR COURT OF BUFFALO,

§ 294. The court also possesses exclusive jurisdiction and power

as follows:
1. Where an action, commenced in a justice’s court in the city of

Buffalo, hag been discontinued upon the delivery of an undertaking,
because the title to real property came in question, it possesses exclu-
sive jurisdiction of an action for the same cause, brought pursuant
to the undertaking.

2. It has exclusive power to remit a fine imposed or a recognizance
estreated by it.

, [Subd. 1 has been taken from L. 1854, ch. 96, § 12; subd. 2, from
L. 1850, ch. 138, §4. The provision of Co. Proc., § 352, as amended
in 1862 and 1863, whereby an appeal from a judgment of a justice’s
court in Buffalo must be taken to the superior court, is in § 3045.
One of the learned justices of that court suggested to the commission-
ers, with the approbation of his brethren, the entire omission of that
provision, so that a justice’s judgment in Buffalo shall be reviewed by
the county court of Erie county, but the commissioners did not think
it proper for them to propose a change of that character. ](*)

171

 

(a) Section 3045 is on page 80.

§ 294

. PART II.

Exclusive
powers in
certain
cases,
§ 353. COURTS. [CODE CIV. PROG.
JUSTICE'S
MANUAL.

TITLE V.

The county courts,

Finesim-  § 353. Where a person has been fined by a court of special

osed by

ustices of i justi icti
the peace; S@SSl0ns, or by a justice of the peace, upon a conviction for aa of-

mites. fence, and has been committed to jail for non-payment of the fine,

the county court of the county may make an order, remitting the
fine, wholly or partly, and discharging him from his imprisonment.
The power conferred by this section must be exercised in the man-
ner prescribed, and subject to the provisions contained, in the last
three sections.

[2 R. S., 486, Part 3, ch. 8, tit. 6,§ 42 (3 R. S., Sthed., 788; 2 Edm.,
508). |
172
CHAP. Iv.| LIMITATIONS.

CHAPTER IV.

(ExtRacts.)

LIMITATION OF THE TIME OF ENFORCING A CIVIL
REMEDY.

TITLE IL.

Actions other than for the recovery of real property.

§ 376. [Amended, 1877.] A final judgment or decree for a sum
of money, or directing the payment of a sum of money, heretofore
rendered in a surrogate’s court of the State, or heretofore or here-
after rendered, in a court of record within the United States, or else-
where, is presumed to be paid and satisfied, after the expiration of
twenty years from the time, when the party recovering it was first
entitled to a mandate to enforce it. This presumption is conclusive ;

except as against a person, who, within twenty years from that time,
makes a payment or acknowledges an indebtedness of some part of
the amount recovered by the judgment or decree; or his heir or per-
sonal representative; or a person whom he otherwise represents.
Such an acknowledgment must be in writing, and signed by the per-
son to be charged thereby.

[This section has been substituted for the first subdivision of the
following section of the Code of Procedure :

“Sec. 90. Within twenty years :

1. An action upon a judgment or decree of any court in the United
States, or of any state or territory within the United States.

2. An action upon a sealed instrument.”

The substitute has been framed upon R.8., Part3, ch. 4, tit. 2, §
47 (2 R. S., Ist ed., 301; 2B. 8, 3d ed., 398; 3 R. S., 5th ed., 590),
which has been adapted to the existing laws regulating the practice
and proceedings of the courts.

It will be noticed that this section is limited to courts of record, in
which expression, is now included a surrogate’s court of the State. See
L. 1877, ch. 416, § 1, subd. 1; and § 382, subd. 7, post, as amended by
the same chapter, so as not to conflict with this section (L. 1877, ch.
416, § 1, subd. 44). It has been held, under the Code of Procedure,
that the limitation of twenty years extends to justices’ judgments,

173

§ 376.

PART II,

When
satisfac-
tion of
judgment
presumed.
8§ 377-381. LIMITATIONS. [CODE CIV. PROC.

 

JUSTICE’S
MANUAL.

Effect of
return of
execution.

How pre-
sumption
raised.

Other
eriods of
imitation,

Within
twenty,
years.

Delavan v. Florence, 9 Abb. Pr., 277, note ; Conger v. Vandewater, 1
Abb. Pr., N.§., 126. This is contrary to all our legal traditions, and
it is believed, to the intent of the legislature ; and accordingly a dif-
ferent provision has been made in § 382, subd. 5. But it seems emi-
nently proper that the decrees of surrogates’ courts of the State should
be subjected to this long limitation. The provision of the R. 8., whereby
proof of payment, or of acknowledgment, is restricted to proceedings
against the original party, or his representatives, has been extended
to every person who makes the payment or acknowledgment. The
propriety of this change will be apparent, without discussion. A pro-
vision hag also been added, requiring the acknowledgment to be in
writing, and signed by the party, in accordance with § 395, post.]

§ 877. If the proof of payment, under the last section, consists
of the return of an execution partly satisfied, the adverse party may
show, in full avoidance of the effect thereof, that the alleged partial
satisfaction did not proceed from a payment made, or a sale of prop-
erty claimed, by him, or by a person whom he represents.

[The necessity of this provision has been suggested by the case of
Henderson v. Cairns, 14 Barb., 15. The language of the court, in
that case, seems to lead to the inference, that a sheriff’s return of
partial satisfaction would be evidence of payment, within the provi-
sions of the R.8., and, if so, it would doubtless be generally con-
clusive. The facility with which a plaintiff may procure such a
return, in order to defeat the statute, even without collusion on the
part of the sheriff, seems to render it proper to provide, as in this sec-
tion, against the possibility of abuse. |

§ 378. A person may avail himself of the presumption created
by the last section but one, under an allegation that the action was
not commenced, or that the proceeding was not taken, within the
time therein limited.

[See § 413, post, and the note to § 376, ante.]

§ 880. The following actions must be commenced within the
following periods, after the cause of action has accrued.

[See Co. Proc., § 74, first half of the first sentence; and id., § 89.]

§ 381. [Amended, 1877.] Within twenty years:

An action upon a sealed instrument.

But where the action is brought for breach of a covenant of seizin,
or against incumbrances, the cause of action is, for the purposes of
this section only, deemed to have accrued upon an eviction, and not

before.
174
CHAP. IV.] LIMITATIONS.

[The commencement of the section consists of Co. Proc., § 90,
subd. 2. Under the R. 8., the corresponding limitation was a pre-
sumption of payment, and applied only to an action at law upon a
sealed instrument for the payment of money, 2 R.8., 301, §§ 48 and
50 (p. 398, 3d ed.) ; and the original report of the Code of Procedure
preserved the distinction, with respect to the character of the instru-
ment. But the legislature made the rule general, in both respects ;
and so it has stood since 1848, although the provision apparently in-
cludes certain actions, especially of an equitable character, which
would otherwise be subject to shorter limitations. The concluding
sentence is new. ‘The remedy upon these covenants ought to be pre-
served until time bars an action to enforce the title or incumbrance,
against which they were intended to operate. A stranger, holding an
outstanding title, might have twenty years after the covenant, in
which to bring ejectment; yet, as the covenant is broken as soon as
itis made, the action upon it would be barred in the same twenty
years, and so the grantee would lose his land, and have no remedy
upon the covenant. |

§ 882. [Amended, 1877, ch. 416 and 422.] Within six years:

1. An action upon a contract obligation or liability, express or
implied ; except a judgment or sealed instrument.

9. An action to recover upon a liability created by statute; ex-
cept a penalty or forfeiture.

3. An action to recover damages for an injury to property, or a
personal injury; except in a case where a different period is ex-
pressly prescribed in this chapter.

4, An action to recover a chattel. ‘

5. An action-to procure a judgment, other than for a sum of
money, on the ground of fraud, in a case which, on the thirty-first
day of December, 1846, was cognizable by the court of chancery.
The cause of action, in such a case, is not deemed to have accrued,
until the discovery, by the plaintiff, or the person under whom he
claims, of the facts constituting the fraud.

6. An action to establish a will. Where the will has been lost,
concealed, or destroyed, the cause of action is not deemed to have
accrued, until the discovery, by the plaintiff, or the person under
whom he claims, of the facts upon which its validity depends.

7. An action upon a judgment or decree, rendered in a court not
of record, except a decree heretofore rendered in a surrogate’s court
of the State. The cause of action, in such a case, is deemed to have
accrued, when final judgment was rendered.

175

§ 382.

PART II.

Within
six years.
§ 382.

JUSTICE'S

MANUAL.

LIMITATIONS. [CODE CIV. PROC.

[Subd. 1 was amended by ch, 422, of the Laws of 1877, so as to be
a transcript of subd. 1 of Co. Proc., § 91. As enacted in 1876, it
applied only to “an action to recover damages for breach of a con-
tract, express or implied, except”, etc. The language of Co. Proc.,
§ 91, subd. 1, retained in the substituted provision, seems to have been
borrowed from 2 R. §., 295, § 18 (p. 894 of the 3d ed.), which enumer-
ated, in subd. 1, “All actions of dedé founded upon any contract, obli-
gation or liability, not under seal, excepting”, etc. ; and in subd. 4,
“All actions of account, assumpsit, or on the case, founded on any
contract, or liability, express or implied”. Obviously, the omission
of the foregoing italicized words materially affects the meaning ; and
the word, “liability,” has such an extensive signification that the
existing provision, if literally construed, leaves nothing for § 97 of the
Code of Procedure (§ 388, post), to act upon. In the act of 1877, as
in L. 1848, ch. 879, § 71 (Code of 1848), and in L. 1849, ch. 438, §
91 (Code of 1849), the clause in the MS. bills in the office of the
secretary of State, has a comma between “contract” and “obli-
gation ”, but the commissioners thought that this was an error in en-
grossing, and that the word “ contract” was used as a quasi adjective ;
for which reason, in preparing the standard text, they dropped the
comma.

Subd. 2, 3, and 4 of this section are substitutes for subd. 2, 3, 4,
and 5 of Co. Proc., § 91. The expressions, “personal injury” and
“injury to property ” are so defined, in § 3343, subd. 9 and 10, post, as
to include every wrongful act for which an action will lie, except the
breach of a contract. As these provisions have been framed, they
are clear and definite, and are strictly confined to actions which,
under the former system, would have been actions at law. Subd. 5 of
the original section is very indefinite. It was evidently suggested by
subd. 7 of § 18 of the R.8., which read thus: “ All special actions on
the case for criminal conversation, for libels, or for any other injury
to the persons or rights of any, except such as are specified in the two
next sections”. Inthe R.8., the words, ‘‘on the case,” qualify the
general words used, and their omission changes the entire sense of
the clause ; for actions now include equity suits. If the broad lan-
guage of the subdivision in question was allowed to stand, it must
ultimately have led to a conflict with § 97 of the Code of Procedure
(§ 388, post).

Subd. 5 of this section contains the substance of Co. Proc., § 91,
subd. 6, substituting the words, ‘‘to procure a judgment other than
fora sum of money”, for “relief”; and “on the thirty-first day of
December, 1846 ”, for “‘ heretofore”; and omitting the word, “solely”’,
between “‘was”, and ‘‘cognizable”. The original jurisdiction of
the court of chancery was not abolished until July, 1847, but the day
before the constitution of 1846 took effect has been inserted, to avoid
all question, as to the description of the cases covered by this provi-
sion, The substitution of “cognizable”, for ‘solely cognizable ”’, is
in consequence of the decision in Foote v. Farrington, 41 N. Y., 164,
to the effect that since the Code of 1849, in cases where the jurisdic-
tion at Jaw and in equity was concurrent, the equitable cause of action
is not saved, although the fraud was not discovered till within the
six years. See also Northrop v. Hill, 57 N. Y., 851. It is believed
that the Jegislature did not intend to establish such a harsh and in-
equitable rule. ‘The amendment leaves the law as it was under the R.
S., and the Code of 1848.

176
CHAP. LV.] LIMITATIONS.

Subd. 6 is new. It is very doubtful, what rule prevails under prior
statutes, in the case provided for, in this subdivision. verilt v.
Everitt, 41 Barb., 385. The case ought not to be governed by the
rule established in § 388, post, which will protect a person, who
fraudulently suppresses a will for ten years.

Subd. 7 has been taken from 2 R.S., 295 (3d ed., 394), § 18, subd.
2. This subd., as enacted in 1876, was amended in 1877, so as to con-
form it to § 2, subd. 20, whereby a surrogate’s court of the State
was made a court of record. The addition of this subdivision is ne-
cessary, in consequence of the substitute for Co. Proc,, § 90, contained
in § 376, ante.]

§ 883. [Amended, 1877.] Within three years:

1. An action against a sheriff, coroner, constable, or other oflicer,
for the non-payment of money collected upon an execution.

2. An action against a constable, wpon any other liability incurred
by him, by doing an act in his official capacity, or by the omission
of an official duty ; except an escape.

3. An action upon a statute, for a penalty or forfeiture, where the
action is given to the person aggrieved, or to that person and the
people of the State ; except where the statute imposing it prescribes
a different limitation.

4, An action against an executor, administrator, or receiver, or
against the trustee of an insolvent debtor, appointed, as prescribed
by law, in a special proceeding instituted in a court or before a judge,
brought to recover a chattel, or damages for taking, detaining, or
injuring personal property, by the defendant, or the person whom
he represents.

5. An action to recover damages for a personal injury, resulting
from negligence.

[This section is a substitute for § 92 of the Code of Procedure ;
subd. 3 being a transcript of subd. 2 of the original ; and subd. 1 and
2 being intended to set forth the existing rule, contained in subd. 1 of
the original, as modified in 1871, with a further slight modification,
presently to be noticed. That part of the act of 1871, which bears
upon this question, is as follows :

L. 1871, ch. 733, § 2 (9 Edm., 197). “No action shall be brought
against any sheriff upon a liability incurred by the doing of an act in
his official capacity and in virtue of his office, or by the omission of
an official duty, not including the non-payment of money collected
upon an execution, unless the same shall be commenced within one
year from the time when the cause of the action shall have accrued.”

It will be perceived that the only substantial change, consists in
dropping the words, ‘‘and in virtue of his office”, the reason for
which is given in the note to § 385, post. It is not easy to explain

[23] 17?

§ 383.

PART II.

Within
three
years.
§§ 384-385. LIMITATIONS. [copE CIV. PROo-

JUSTICES

MANUAL,

Within
two years.

Within
one year.

why the distinction was made, by the legislature of 1871, between
sheriffs and constables ; but it is to be noted that constables were first
placed in section 92, by the legislature of 1849 ; before which time, the
limitation, applicable to actions against them, upon their official bonds,
was to be found among the provisions relating to town officers, and
was two years from the expiration of their terms of office. 1R.8.,,
346, § 23 (1 R. S., 3d ed., 396; 1 Edm., 319).

Subd. 4 is new; it has been taken, substantially, from Mass. L.
1861, ch.177. Subd. 5 is also new; it constitutes the amendment of
1877. As to penalties, see 1 N, Y., 47; 35 N. Y., 412.]

§ 384. Within two years :

1. An action to recover damages for libel, slander, assault, battery,
or false imprisonment.

2. An action upon a statute, for a forfeiture or penalty to the
people of the State. .

[Co. Proc., § 93, amended by inserting the words, “to recover dam-
ages”, in subd. 1.]

§ 385. Within one year :

1. An action against a sheriff or coroner, wpon a liability incurred
by him, by doing an act in his official capacity, or by the omission
of an official duty ; except the non-payment of money collected upon
an execution.

2, An action against any other officer, for the escape of a pris-
oner, arrested or imprisoned by virtue of a civil mandate.

[This section is a substituté for § 94, of the Code of Procedure,
which contained the substance of subd. 2 only of the former section.
The original provisions, on this subject, having been fully stated in
the note to § 383, ante, it only remains to give, in this note, the reason
for dropping the words, “and in virtue of his office”. These words
were inserted in the statute, in the year 1848, upon the recommenda-
tion of the commissioners on practice and pleadings, who say, in sub-
stance (Report of 1848, pp. 103, 104), that the provision of the R. S.,
to which the above subd. 1 corresponds, was passed for the protection
of sureties of sheriffs, by requiring suits to be speedily brought, where
they stood responsible for such officers; but the supreme court had
held, in Morris v. Van Voast, 19 Wend., 283, and Ex parte Reed, 4
Hill, 572, that where a sheriff, holding a writ against one person, took
the property of another, it was a trespass wnder color of office, and not
an act done by virtue of his office ; and hence that, in such a ease, his
sureties were not liable. It was, therefore, deemed proper, by tae
commissioners and the legislature, to restrict the statutory limitation
to cases where the sheriff acted “ by virtue of his office”. But, after
the Code of Procedure was enacted, the court of appeals held, in The
People v. Schuyler, 4. Comst., 173 (A. D., 1850), that the taking of
property, under the circumstances just mentioned, is an act of official
misconduct, and consequently a breach of the sheriff’s bond for the

178
CHAP. Iv. ] LIMITATIONS. §§ 386-390.
Te

faithful performance of the duties of his office, which renders the vane

sureties liable in damages. It may, however, be doubted, whether this

case overrules that part of the ruling in the supreme court, which held

that the act was not done in “virtue of his office’; so that the reten-

tion of those words, at least, raises a doubt, whether the sheriff and his

sureties are not responsible, in such cases, for six years. For which

reason, they have been dropped; thus bringing such cases plainly within

the limitation of three years, according to the intention of the legisla-

ture, the manifest inference from the ruling, in The People v. Schuyler,

and the express decision of the supreme court, in Dennison v. Plumd,

18 Barb., 89 (A. D., 1854), under the provision of the R. 8.]

1 When
§ 386. In an action brought to recover a balance due upon a When

* action
mutual, open, and current account, where there have been reciprocal accrues on
a current

demands between the parties, the cause of action is deemed to have account.
accrued from the time of the last item, proved in the account on
either side.

[Co. Proc., § 95.]

§ 387. An action upon a statute for a penalty or forfeiture, given Action for
penalty,

wholly or partly to any person who will prosecute for the same, must ee Py

ee Sy il
be commenced within one year after the commission of the offence ; ie

and if the action is not commenced within the year by a private per-
son, it may be commenced within two years thereafter, in behalf
of the people of the State, by the attorney-general, or the district-
attorney of the county where the offence was committed.

[Co. Proc., § 96.]

§ 888. An action, the limitation of which is not specially prescribed Actions
not before

in this or the last title, must be commenced within ten years after Etoyices

the cause of action accrues.

[Co. Proc., § 97%, amended by striking out, after “an action”, the
words, “ for relief”, which were used in the R.S., in contradistinction
to ‘‘for discovery”; but have no definite meaning under our present
system. See Von Sachs v. Kretz, 72 N. Y., 548.]

§ 389. The limitations, prescribed in this title, apply alike to Actions by

the people

actions brought in the name of the people of the State, or for their {ene
. e limita-
benefit, and to actions by private persons. tions.

[Co. Proc., § 98. But a State statute of limitations does not apply
to the United States. U. S. v. Thompson, 19 Alb. L. J., 174.]

§ 390. Where a cause of action, which does not involve the title Action ‘
1D

to or possession of real property within the State, accrues against a {onereson
179
§ 391.

JUSTICE’S
MANUAL,
a demand
barred by
the law of
his resi-
dence,

When per-
son liable,
etc., dies
without
the State.

LIMITATIONS. [CODE CIV. PROC.

person, who is not then a resident of the State, an action cannot be
brought thereon in a court of the State, against him or his personal
representative, after the expiration of the time, limited, by the laws
of his residence, for bringing a like action, except by a resident of
the State, and in one of the following cases:

1. Where the cause of action originally accrued in favor of a res-
ident of the State.

2. Where, before the expiration of the time so limited, the person,
in whose favor it originally accrued, was or became a resident of the
State ; or the cause of action was assigned to, and thereafter continu-
ously owned by, a resident of the State.

[New. It has been held that the statute of limitations of another
state or country is no bar to an action in the courts of this State;
although each of the parties may have been, until the statute had run,
a resident of that state or country, and the cause of action may have
accrued therein (Ruggles v. Keeler, 3 Johns., 263 ; Olcott v. Tioga R.
R. Co.,20 N. Y., 224; Gans v. Frank, 36 Barb., 320; Power v. Hatha-
way, 43 Barb., 214; Toulandou v. Lachenmeyer, 6 Abb. Pr., N. 8., 215);
most of the states of the Union have altered this rule by express
enactment; some of them extending the statute to all cases where it
has run in the debtor’s residence ; others to cases where it has run in
the state or country where the cause of action accrued; and others to
cases where both parties were non-residents until it had run (see,
with other statutes, Code of Virginia, 1873, ch. 146, § 20; R. 8. of
Wisconsin, 1858, ch. 138, § 28; Gen. Stat. of Vermont, 1863, ch. 63,
§ 15; R.8. of Rhode Island, 1857, ch. 177, § 5; Gen. Stat. of Mis-
souri, 1865, ch. 191, § 16; Code of Tennessee, § 2783). Opinions
will doubtless differ, whether justice and sound policy require that
the exemption should be extended as far as some states have gone;
but all or nearly all will agree that our courts should not be used, to
enable a non-resident to commence an action here, when the cause of
action accrued elsewhere, and has been completely barred by the laws
of the parties’ common domicil. This section carefully guards the
right of a resident creditor, to pursue his non-resident debtor, unless
the ae has been here, long enough for our own statute to run in his
favor.

§ 391. [Amended, 1877.] If a person, against whom a cause
of action exists, dies, without the State, the time which elapses
between his death, and the expiration of eighteen months after the
issuing, within the State, of letters testamentary or letters of admin
istration, is not a part of the time limited for the commencement of
an action therefor, against his executor or administrator.

[New; partly explained in the note to § 401, post, but designed,
also, to cover a case where the debtor leaves the State after the cause
of action accrues. In Christophers v. Garr,.2 Seld. (6 N. Y.), 61, a

180
CHAP. IV. | LIMITATIONS.

note of the defendant’s intestate became payable on the 5th of Feb-
ruary, 1837; the intestate, a resident of this State, went to Florida about
the 8th of the same month, and in the following August left Florida,
on his way home, and was lost on the voyage. Letters of administra-
tion were issued to the defendant, June 27, 1844, and this action was
brought in March, 1850. It was held that the statute, which was
suspended by the intestate’s residence abroad, began to run again as
soon as he died; so that, adding eighteen months after his death,
the time expired in February, 1845. Under the circumstances of
this case, the decision was not inequitable; but, although one of the
judges said that the plaintiff should have sued soon after the letters
were granted, it is difficult to see how the same result would have
been avoided, if letters had not been granted till after February, 1845.
The provisions of the old Code corresponded, as far as this question
is involved, with those of the R. 8., under which the case, referred
to, was decided. |

§ 392. [Amended, 1877.] For the purpose of computing the time,
within which an action must be commenced in a court of the State,
by an executor or administrator, to recover personal property, taken
after the death of a testator or intestate, and before the issuing of let-
ters testamentary or letters of administration; or to recover damages
for taking, detaining, or injuring personal property within the same
period; the letters are deemed to have been issued, within six years
after the death of the testator or intestate. But where an action
is barred by this section, any of the next of kin, legatees, or credit-
ors, who, at the time of the transaction upon which it might have
been founded, was within the age of twenty-one years, or insane, or
imprisoned on a criminal charge, may, within five years after the
cessation of such a disability, maintain an action to recover damages
by reason thereof: in which he may recover such sum, or the value
of such property, as he would have received upon the final distribu-
tion of the estate, if an action had been seasonably commenced by
the executor or administrator.

[New. Asan action cannot be maintained, until there is a person
in being, capable of suing, it has been frequently held that, in the
cases contemplated in this section, the statute of limitations com-
mences to run only from the grant of letters. Thus, in Bucklin v.
Ford, 5 Barb., 393, the administrator of a son sued the executor of
the father, for goods of the son, which came to the father’s hands in
1828, after the son’s death. The plaintiff’s letters were granted in
1836 ; the defendant’s testator died in 1838; and this suit was com-
menced in 1842, fourteen years after the transaction. It was held,
upon the authority of several cases, that the action was in time. Other
cases are known to have occurred, where actions have been main-
tained, upon the same principle, although commenced forty or fifty

181

§ 392.

PART I.

Cause of
action ac-
cruing be-
tween the
death of a
testator or
intestate,
and the
grant of
letters.
§§ 393-396. LIMITATIONS. [CODE CIV. PROC.

JUSTICE’S
MANUAL.

No limita-
tion of ac-
tion on
bank
notes, etc.

Action
against
directors,
etc., of
banks,

Acknowl-
edgment
or new
promise
must be in
writing.

Excep-
tions, as
to persons
under
disabili-
ties.

years after the transaction, and under circumstances of great hard-
ship. It is well known that, where there is no will, and the property
left by a decedent is small in amount, the surviving relatives, espe-
cially in the rural districts, frequently distribute the effects by mutual
agreement, without incurring the expense and trouble of procuring
administration. Generally, such distribution is made upon equitable
principles; and the section is so framed as to save the few cases,
where the statute of limitations should not cure the irregularity. ]

§ 393. This chapter does not affect an action to enforce the pay-
ment of a bill, note, or other evidence of debt, issued by a imoneyed
corporation, or issued or put in circulation as money.

[Co. Proc., § 108.]

§ 394. [Amended, 1877.] This chapter does not affect an action
against a director or stockholder of a moneyed corporation, or bank-
ing association, to recover a penalty or forfeiture imposed, or to
enforce a liability created by law; but such an action must be

brought within three years after the cause of action has accrued.

[Co. Proc., § 109; amended in 1877, so as to make the six years
run from the time when the cause of action accrued, instead of the
discovery of the facts. |

§ 395. An acknowledgment or promise, contained in a writing,
signed by the party to be charged thereby, is the only competent
evidence of a new or continuing contract, whereby to take a case
out of the operation of this title. But this section does not alter

the effect of a payment of principal or interest.
[Co. Proc, § 110. ]

§ 396. If a person, entitled to maintain an action specified in this
title, except for a penalty or forfeiture, or against a sheriff or other
officer for an escape, is, at the time when the cause of action accrues,
either

1. Within the age of twenty-one years; or

2. Insane; or

3. Imprisoned on a criminal charge, or in execution upon convic-
tion of a criminal offence, for a term less than for life;

The time of such a disability is not a part of the time, limited in
this title for commencing the action ; except that the time so limited
cannot be extended more than five years by any such disability,

182
CHAP. Iv.] LIMITATIONS. 8§ 397-399.

PART IT.

except infancy; or, in any case, more than one year after the dis-
ability ceases.
[Co. Proc., § 101.]
Defence

§ 397. A cause of action, upon which an action cannot be main- orcoun
: fie aaa as ' terclaim,
tained, as prescribed in this title, cannot be effectually interposed as se

a defence or counterclaim.
[New. ]

 

TITLE IIL.

General provisions.

§ 898. [Amended, 1877.] An action is commenced against a de- When
action

fendant, within the meaning of any provision of this act, which feemed to

os . . : + menced.
limits the time for commencing an action,.when the summons is

served on him; or on a co-defendant who is a joint contractor, or
otherwise united in interest with him.

Co. Proe., § 99, first sentence ; amended so as to extend the pro-
vision to all cases where a limitation is fixed by statute. In the act
of 1876, this section excepted a non-resident from the second clause
relating to a case where the summons is served upon a person jointly
liable with him. But the legislature, in 1877, struck out the excep-
tion. The commissioners inserted it to prevent doubts and confusion.
The words, ‘or on a co-defendant who is a joint contractor, or other-
wise united in interest with him”, were first inserted in 1851; and it
was feared that they might be so construed as to affect the rule, estab-
lished by a series of decisions in our courts, touching the application
of the statute, where one joint contractor is absent from the State,
and the other remains therein. Bruen v. Bokee, 4 Denio, 56; Bogert
v. Vermilyea, 6 Seld. (10 N. Y.), 447; Denney v. Smith, 18 N. Y., 567.
Whatever may have been originally the intention of the legislature, in
inserting these words, it would seem that the statute, as it stood when
this act took effect, intended to leave the rule in question in full force ;
for, in 1866, the legislature struck out of § 379 of the Code of Pro-
cedure, the words, “except the statute of limitations” (L. 1866, p.
1844, § 15).]

§ 399.* An attempt to commence an action, in a court of record, is Attempt
oO com-

equivalent to the commencement thereof against each defendant, mence, |
within the meaning of each provision of this act, which limits the fond.
time for commencing an action, when the summons is delivered,

with the intent that it shall be actually served, to the sheriff, or,

where the sheriff is a party, to a coroner of the county, in which that

183
§ 400.

JUSTICH’S
MANUAL.

Id.; ina
court not
of record.

LIMITATIONS. [CODE CLY. PROC.

defendant, or one of two or more co-defendants, who are joint con-
tractors, or otherwise united in interest with him, resides or Jast re-
sided; or, if the defendant is a corporation, to a like officer of the
county, in which it is established by law, or wherein its general busi-
nes3 is or was last transacted, or wherein it keeps, or last kept, an
office for the transaction of business. But in order to entitle a plain-
tiff to the benefit of this section, the delivery of the summons to an
officer must be followed, within sixty days after the expiration of
the time limited for the actual commencement of the action, by per-
sonal service thereof upon the defendant sought to be charged, or
by the first publication of the summons, as against that defendant,
pursuant to an order for service upon him in that manner.(*)

[Co. Proc., paragraph 2 of § 99, with several amendments, designed
to remove obscurities and ambiguities. The provision has been ex-
tended to all cases where a limitation is fixed by statute, in conformity
to a like amendment, in the last section ; and the concluding sentence
has been added. The reform, effected by the latter amendment, has
been adopted in some of the states (R. 8. of Wisconsin, ch. 138, § 27;
2 Swan & Cr., R. 8. of Ohio, ch. 87, § 20) ; and was probably borrowed
from a corresponding provision, inserted in § 99 of the Code of Pro-
cedure, by the amendment of 1851, but stricken out, iu 1867 (Sess. L.,
p. 1921, § 5). The provision appears eminently just and proper ; and
it was probably stricken out, because a plaintiff might sometimes be
unable either to procure service, or to comply with the requirements
of § 135 of the Code of Procedure, within sixty days. But this ob-
jection can be satisfactorily overeome, by adding the case where such
an inability exists, to those where service may be made by publication.
This has been done in ch. 5 (§ 438, subd. 6). The words, “ina
court of record,” have been added, in the first line, and other altera-
tions have been made, which were necessary to confine the section to
an action in a court of record. But this change does not effect any
substantial alteration in the law, as provision has been made in the
next section, for an attempt to commence an action in a court not of
record. A sufficient reason may be found, for separating the pro-
visions relating to the two classes of courts, in the obscurity produced
by the attempt to include courts not of record in the original pro-
vision. An amendment, relating to joint contractors and those jointly
interested, has been added, in accordance with the provisions of the
last ae and to avoid abuses, for which the original section leaves
room.

§ 400. The last section, excluding the provision requiring a publi-
cation or service of the summons within sixty days, applies to an
attempt to commence an action, in a court not of record, where the
summons is delivered to an officer authorized to serve the same,

within the city or town, wherein the person resides or the corpora-
184

(a) This section is applied to justices’ courts by the next section.

 
CHAP. IV.] LIMITATIONS. §§ 401-402.

; F : PAR® IE.
tion is located, as specified in that section; provided that actual

service thereof is made with due diligence.

[New; explained in the note to the last section. ]

§ 401. [Amended, 1877.] If, when the cause of action accrues Excep-

1 1 i i when de-
against a person, he is without the State, the action may be com- en 4%,

menced within the time limited therefor, after his return into the ins Sata.

State. If, after a cause of action has accrued against a person,
he departs from and resides without the State, or remains continu-
ously absent therefrom for the space of one year or more, the time
of his absence is not a part of the time, limited for the commence-
ment of the action. But this section does not apply, while a desig-
nation, made as prescribed in section four hundred and thirty, or in
subdivision second of section four hundred ayd thirty-two, of this
act, remains in force.

[Co. Proc., § 100, adding the concluding sentence, which is new.
The corresponding provision of the R.S8., 2 R. 8. 297, § 27 (p. 395 of
the 3d ed.), was not applicable to real actions; but the section was
made general by the Code of 1848, and has not since been changed.
In Bennett v. Cook, 43 N. Y., 537, it was held, that a resident of New
Jersey, doing business in New-York city, and attending openly at his
office, during every business day, for ten hours, on an average, could
not interpose the statute, as a defence to an action commenced seven
years and five months after the cause of action accrued; the court
remarking that, if he was entitled to any allowance, it could be only
for ten hours, out of the twenty-four. This appears to be a harsh rule;
but the commissioners did not think it expedient to propose to change
the language of the statute. In Benjamin v. DeGroot, 1 Denio, i51, it
was held, under the first sentence, that where a debtor was abroad
when the cause of action accrued, and remained abroad until his death,
the statute commenced running from the time of granting letters in
this State. Although that ruling is, doubtless, within the equity of
the provision, it can hardly be called a construction of the statute ;
and a section (§ 391, ante) has accordingly been inserted, to meet all
cases where the debtor dies abroad.]

§ 402. If a person, entitled to maintain an action, dies before the 14.; when

. . . . . a person
expiration of the time limited for the commencement thereof, and entitled,
the cause of action survives, an action may be commenced by his FE

expires.

representative, after the expiration of that time, and within one year
after his death.

[Co. Proc., § 102, first sentence, corresponding to 2 R. 8., 297, § 26
(p. 895 of 3d ed.), except that the latter is applicable only to personal
actions. | '

[24] 185
§§ 403-404. LIMITATIONS. [CODE CIV. PRoC.

state § 403 [Amended, 1879.] The term of eighteen months after the
a person death, within the State, of a person, against whom a cause of action
ete dies | exists, is not a part of the time limited for the commencement of an

Stato.

 

action against his executor or administrator. If letters testamentary or
letters of administration upon his estate are not issued, within the
State, at least six months before the expiration of the time to bring
the action, as extended by the foregoing provision of this section,
the term of one year after such letters are issued is not a part of the
time limited for the commencement of such an action.

[This section was substituted in 1879, for § 403, as prepared by the
commissioners, and enacted in 1876, which was not broad enough to
accomplish fully the purpose for which it was designed, namely, that
of removing the perplexity and confusion, growing out of two differ-
ing provisions of the former statutes, apparently covering the same
subject. These were the second sentence of § 102 of the Code of Pro-
cedure, and 2 R.8., 448, Part 3, ch. 8, tit. 83, § 8 (3R.8., 5th ed., 746,
2 Edm., 467).

The entire chapter of the R. 8., containing the statute of limita-
tions, was repealed by § 73 of the Code of Procedure, but § 471 of that
statute retained all provisions of certain chapters and titles of the R.
8., which are not “plainly inconsistent” with the former; among
them, tit. 3 of ch. 8 of Part 3, entitled “of suits by and against execu-
tors and administrators”, etc.

In Scovil v. Scovil, 45 Barb., 517, one of the questions discussed was,
whether § 102 of the Code of Procedure had the effect to repeal or
restrict § 8 of the R.S. The majority of the court held that both
sections could stand together ; that the creditor was always to have sll
extension of eighteen months after the debtor’s death; and that § 102
had the effect to extend the time one year, in case letters should be so
delayed that the creditor could not sue within the time prescribed by
previous legislation. This conclusion is supposed to be in accordance
with the intent of the legislature, and has been consequently embodied
in this section. The reason for the addition of the words, “within
the State,” will be made apparent by a reference to § 391, ante, and the
note thereto.]

In suits by — § 404. Where a person is disabled to sue in the courts of the

disabiity State, by reason of either party being an alien subject or citizen of

in case of

war tobe a country, at war with the United States, the time of the continu-
deducted.

ance of the disability is not a part of the time limited for the com-
mencement of the action.

[Co. Proc., § 103, amended by adding the words, “ disabled to sue
in the courts of the State, by reason of either party being”, so as to
conform the section to 2 R. g 298, § 32 (3d ed., p. 396). They appear
to have been dropped inadvertently (Commissioners’ report, 1848, p.
113). Under the ruling, in Clarke vy. Morey, 10 Johns., 69, it is un-
necessary, and it may be grossly unjust, to citizens as well as aliens, to

186
CHAP. Lv. ] LIMITATIONS. §§ 405-407.

extend this provision to all cases where an alien enemy may ve either
plaintiff or defendant; especially as the right to sue may be given him
by treaty, or license from the United States government.]

§ 405. If an action is commenced within the time limited there-
for, and a judgment therein is reversed on appeal, without awarding
a new trial, or the action is terminated in any other manner than by
a voluntary discontinuance, a dismissal of the complaint for neglect
to prosecute the action, or a final judgment upon the merits; the
plaintiff, or, if he dies, and the cause of action survives, his repre-
sentative, may commence a new action for the same cause, after the
expiration, of the time so limited and within one year after such a
reversal or termination.

[Co. Proc., § 104, adding the words, “without awarding a new trial”,
because, if a new trial is awarded, the provision is improper; and the
words, ‘‘or the action is terminated . . . . upon the merits”,
which meet what appears to be a casus omissus. Several states have
adopted a similar provision. Gen. Stat., N. H. (1867), ch. 102, § 9;
Gen. Stat., Mo. (1867), ch. 191, § 19; Gen. Stat., Mass., ch. 155, § 11;
Towa Revision (1860), § 2749. The statute of lowa excepts the case
where the plaintiff fails through his own negligence. The provision
allowing an additional year, after reversal of a judgment, was
restricted, under the R. 8., and the Codes of 1848 and 1849, to the
reversal of a judgment for the plaintiff; but the legislature of 1863
mt it general. See Wooster v. 42nd St., etc, R. R. Co, V1 N. Y.,
471.

§ 406. Where the commencement of an action has been stayed by
injunction, or other order of a court or judge, or by statutory pro-
hibition, the time of the continuance of the stay is not a part of the
time, limited for the commencement of the action.

[Co. Proc., § 105, extended to any order staying proceedings. This
provision does not apply to a case where a third person procures an
Injunction against a party to a contract, or to a limitation created by
contract. Wilkinson v. Pirst Nat. Fire Ins. Co., 72 N. Y., 499.]

§ 407. Where an injury results from the act or omission of a
deputy or agent, the time, within which an action to recover dam-
ages by reason thereof, must be commenced by the principal, against
the deputy or agent, must be computed from the time, when a judg-
ment against the principal, for the act or omission, is first recovered
by the aggrieved person ; and a subsequent reversal or setting aside

of the judgment does not extend the time.
187

PART II.

Provision

where
udgment
as been

reversed.

Stay by
injunc-
tion, etc.,
to be de-
ducted.

Certain
actions by
a prin-
cipal, for
miscon-
duct of an
agent, etc.
§§ 408~410. LIMITATIONS. [CoDE Cly. PROC.

JUSTICH’S
MANUAL.

Disability
must exist
when
right ac-
crues,

If several
disabil-
ities, no
limitation
until all
removed.

Provision
when the
action
cannot be
main-
tained
withouta
demand.

[New. This section is intended to change the rule Jaid down, in
Bank of Utica v. Childs, 6 Cow., 238, for one believed to be more in
accordance with justice, and the true interest of the agent, as well as
of the principal. |

§ 408. A person cannot avail himself of a disability, unless it
existed when his right of action or of entry accrued.

[Co. Proc., § 106.]

§ 409. Where two or more disabilities co-exist, when the right of
action or of entry accrues, the limitation does not attach. until all
are removed.

[Co. Proc., § 10%.]

§ 410. Where a right exists, but a demand is necessary to entitle
a person to maintain an action, the time, within which the action
must be commenced, must be computed from the time, when the
right to make the demand is complete; except in one of the fol-
lowing cases:

1. Where the right grows out of the receipt or detention of money
or property, by an agent, trustee, attorney, or other person acting
in a fiduciary capacity, the time must be computed from the time,
when the person, having the right to make the demand, has actual
knowledge of the facts, upon which that right depends.

2. Where there was a deposit of money, not to be repaid at a fixed
time, but only upon a special demand, or a delivery of personal prop-
erty, not to be returned, specifically or in kind, at a fixed time or
upon a fixed contingency, the time must be computed from the

demand.

[New. This section is designed to settle, upon just principles, a
question, upon which there has been considerable conflict of opinion,
and which is yet involved in some obscurity. It was held in Stafford
v. Richardson, 15 Wend., 302, that an action against an attorney, for
money collected, commenced by the client fifteen or sixteen years after
collection, was too late, although no demand was made until the day
on which the suit was brought ; and the reasoning of the court leaves
room for the conclusion, that the action must be commenced within
six years, although the chent has no actual notice of the receipt of
the money. In Aickok v. Hickok, 13 Barb., 632, it was held, in an ac-
tion for money collected by an agent (not an attorney), that the
statute commences to run within a reasonable time, after reveipt of
the money, within which to remitit. In Lyle v. Afurray, 4 Sandt.,
590, the New-York superior court inferentially held that, in a like

188
CHAP. IV.] LIMITATIONS.

case, the statute began to run from the receipt of the money; and
said that Stafford v. Richardson had established the same rule, in the
case of an attorney. There is no intimation that either of these
cases forms an exception to the general common-law rule, that even
the fraudulent concealment of the cause of action, by the defendant,
will not affect the operation of the statute. Leonard v. Pitney, 5
Wend., 30; Allen v. Mille, 1% Wend., 202. On the other hand it
was held, in Halden v. Crafts, 4 E. D. Smith, 490, and Baird v.
Walker, 12 Barb., 208, that the statute commenced to run, upon a
principal’s claim against a factor who had sold goods on commission,
only after actual demand. The same rule holds, where one of two
part owners of goods sells them, with the consent of the other, and
receives the proceeds, upon an agreement to account for the other’s
proportion. Murray v. Coster, 20 Johns., 576. So, when a debtor
pledges personal property as collateral security for the payment of
the debt, the statute begins to run, against an action in his favor,
against the pledgee, only from tender and demand. Hoffman v.
Van Nostrand, 42 Barb., 174. And such is, apparently, the rule in
the case of a deposit of money, as in a bank. Downes v. Phenix
Bank, 6 Hill, 297; Payne v. Gardiner, 29 N. Y., 146. But an equit-
able action, for specific performance of a contract to convey land, is
barred in ten years, from the time when the vendee was entitled to a

§ 411.

PART II.

conveyance, by the terms of the contract, although no demand was —

made. Bruce v. Tilson, 25 N. Y., 194.]

§ 411. Where the persons, who might be adverse parties in an:
action, have entered into a written agreement to submit to arbitra-
tion, or to refer the cause of action, or a controversy in which it
might be available, or have entered into a written submission
thereof to arbitrators; and before an award, or other determination
thereupon, the agreement or submission is revoked, so as to render
it ineffectual, by the death of either party thereto, or by the act of
the person against whom the action might have been brought ; or
the execution thereof, or the remedy upon an award or other determin-
ation thereunder, is stayed by injunction, or other order procured
by him from a competent court or judge ; the time which has elapsed,
between the entering into the written submission or agreement, and
the revocation thereof, or the expiration of the stay, is not a part of
the time, limited for the commencement of the action.

[New ; designed to cover a casus omissus in the original statute.
It is well settled, that a submission to arbitration may be revoked, at
any time before the case is finally submitted ; and it seems eminently
proper, in such a case, and others of the same general description, to
provide for the protection of a person, who may have let the statute
run against his demand, in reliance upon the submission. ]

189

Provision
in case of
submis-
sion to
arbitra-
tion.
§§ 412-414. LIMITATIONS. [cops CIV. PRoc.
MANUAL  § 4192. Where a defendant in an action has interposed an answer,

Provision

when in support of which he would be entitled to rely, at the trial, upon
action is

discon. a defence or counterclaim then existing in his favor, the remedy

etc., aft = Be . .
answer. Upon which, at the time of the commencement of the action, was

not barred by the provisions of this chapter; and the complaint is
dismissed, or the action is discontinued, or abates in consequence of
the plaintiff’s death; the time which intervened, between the com-
mencement and the termination of the action, is not a part of the
time, limited for the commencement of an action by the defendant,
to recover for the cause of action so interposed as a defence, or to
interpose the same defence in another action brought by the same

plaintiff, or a person deriving title from or under him.

[New ; designed to cover a casus omissus, of the same general
_ character as that provided for by the last section. The courts have
held that, where a counterclaim was admitted of record, the plaintiff
could not discontinue without leave; but that he might discontinue
of course, at any time before the time to reply had expired. Cockle
vy. Underwood, 1 Abb. Pr.,1; 8. C., 3 Duer, 676 ; Seaboard, etc., Co.
v. Ward, 1 Abb. Pr., 46; 8. C.,18 Barb. 595 ; Oaksmith v. Suther-
land, 4 Abb. Pr. 15; 5. C., 1 Hilt., 265; Livermore v. Bainbridge,
61 Barb., 358; Leslie v. Leslie, 10 Abb., N. 8. 64; Tubbs v. Hall, 12
id., 23%. It is yet unsettled, whether a plaintiff has the general right
to discontinue after replying, although, in Van Alen v. Schermerhorn,
14 How. Pr., 287, it was held, at special term, that leave to discon-
tinue would be refused, where the statute of limitations would bar
the defendant’s remedy upon a counterclaim. This section not only
provides for the case, intended to be covered by this somewhat unau-
thoritative decision, but also reaches many other cases, where an ex-
ercise of the general undoubted right to discontinue would be unjust
to the defendant. |

fe § 413. The objection, that the action was not commenced within

tae this the time limited, can be taken only by answer. The corresponding

hapter. 9 am .
pon objection to a defence or counterclaim can be taken only by reply,

except where a reply is not required, in order to enable the plain-
tiff to raise an issue of fact, upon an allegation contained in the
answer.

[Co. Proc., last clause of § 74, with the addition of the second sen-
tence, which is in general harmony with the decision, in Wrllzams v.
Willis, 15 Abb., N. 8., 11, a case decided since the corresponding sec-
tion of the commissioners’ first draft was printed. ]

Cases to § 414. The provisions of this chapter apply, and constitute the
which this 190
CrrAP. Iv.] LIMITATIONS.

only rules of limitation applicable, to a civil action or special pro-
ceeding, except in one of the following cases:

1. A case, where a different limitation is specially prescribed by
law, or a shorter limitation is prescribed by the written contract of
the parties.

2. A cause of action or a defence which accrued before the first
day of July, 1848. The statutes then in force govern, with respect
to such a cause of action or defence.

3. A case, not included in the last subdivision, in which a person
is entitled, when this act takes effect, to commence an action, or to
institute a special proceeding, or to take any proceeding therein, or
to pursue a remedy upon a judgment, where he commences, insti-
tutes, or otherwise resorts to the same, before the expiration of two
years after this act takes effect; in either of which cases, the provi-
sions of law applicable thereto, immediately before this act takes
effect, continue to be so applicable, notwithstanding the repeal
thereof.

4, A case, where the time to commence an action has expired,
when this act takes effect.

The word, “action”, contained in this chapter, is to be con-
strued, when it is necessary so to do, as including a special proceed-
ing, or any proceeding therein, or in an action.

[New. The general language, at the commencement and conclu-
sion of this section, will remove a source of constant doubt, as to the
application of the statute to special proceedings (People v. Sup. West-
chester, 12 Barb., 446), and to defences (per Bacon, J., in Barélett v.
Judd, 21 N. Y., 200); and will sweep away whatever remnants may
yet exist, of the antiquated doctrine, that equitable relief may be re-
fused, upon stale demands, without reference to the statute. See
Derby v. Yale, 13 Hun, 273. Subd. 2 is necessary, because the pro-
visions of the Code of Procedure, revised in this chapter, were pros-
pective. Subd. 3 appears to be proper, instead of rendering this chap-
ter wholly prospective, because the amendments, made thereby, relate
only to the removal of imperfections in the original statute, and the

‘prevention of possible abuses under it. But this chapter ought not,
by any possibility, to be so construed as to revive a cause of action,
which is barred when it takes effect; and, to guard against a question
of that kind, which might arise under some of the provisions, ex-
tending the time limited by the former statutes, sub. 4 has been in-
serted. |

§ 415.

PART Il.

chapter
applies.

§ 415. The periods of limitation, prescribed by this chapter, yode or

‘except as otherwise specially prescribed therein, must be computed
191

i

eriods of
mitation.

computing
i
§ 415. — LIMITATIONS. [CODE CIV. PROC.

JUSTICES : ; : i :
MANUAL. from the time of the accruing of the right to relief by action, spe-

cial proceeding, defence, or otherwise, as the case requires, to the
time when the claim to that relief is actually interposed by the
party, as a plaintiff or a defendant, in the particular action or special
proceeding.

[New ; designed chiefly to regulate the application of the statute,
to claims interposed in special proceedings, defences, and replies ; but
reaching, also, some other cases, where there is a doubt as to the time
when the statute begins to run. ] :

192
CHAP. V.] SERVICE OF SUMMONS.

‘CHAPTER V.

(EXxTRACTS.)

COMMENCEMENT OF AND PARTIES TO AN ACTION.

TITLE I.

Commencement of an action.

e ARTICLE FIRST.

THE SUMMONS AND ACCOMPANYING PAPERS; PERSONAL SERVICE THEREOF;
APPEARANCE OF THE DEFENDANT,

§ 430. A resident of the State, of full age, may execute, under
his hand, and acknowledge, in the manner required by law to entitle
a deed to be recorded, a written designation of another resident of
the State, as a person upon whom to serve a summons, or any process
or other paper for the commencement of a civil special proceeding,
in any court or before any officer, during the absence from the United
States of the person making the designation ; and may file the same,
with the written consent of the person so designated, executed and
acknowledged in the same manner, in the office of the clerk of the
county, where the person making the designation resides. The des-
ignation must specify the occupation, or other proper addition, and
the residence of the person making it, and also of the person desig-
nated : and it remains in force during the period specified therein, if
any; or, if no period is specified for that purpose, for three years
after the filing thereof. But it is revoked earlier, by the death or
legal incompetency of either of the parties thereto ; or by the filing
of a revocation thereof, or of the consent, executed and acknowledged
in like manner. The clerk must file and record such a designation,
consent, or revocation ; and must note, upon the record of the origi-
nal designation, the filing and recording of a revocation. While the
designation remains in force, as prescribed in this section, a sum-

mons, or any process or other paper for the commencement of a civil
[25] 193

§ 430.

PART II.

Designa-
tion, bya
resident,
of a per-
son upon
whom to
serve a
summons
during his
absence ;
effect and
revocation
thereof,
8§ 431-432. SERVICE OF SUMMONS. [cop ctv. proc.

JUSTICE’S
MANUAL. special proceeding, against the person making it, in any court or

before any officer, may be served upon the person so designated, in
like manner and with like effect, asif it was served personally upon
the person making the designation, notwithstanding the return of
the latter to the United States.

[New. ‘The increasing frequency of protracted absences abroad, on
the part of residents of the State, has made the want of any regula-
tion, for the service of a summons or other process upon them, during
their absence, a serious grievance, which this section is designed partly
to remedy. Under the original law, in some cases they are liable to
be proceeded against by publication ; in others, the claimant is sub-
jected to vexatious delay, for want of any means of compelling them
to appear. A provision like this section, is demanded for the protec-
tion equally of the absentee and the claimant. ]

Howper-  § 431.* Personal service of the summons upon # defendant, being

Summons @ domestic corporation, must be made by delivering a copy thereof,

made

upona within the State, as follows:
domestic

ton 1. If the action is against the mayor, aldermen, and commonalty
of the city of New-York, to the mayor, comptroller, or counsel to
the corporation.

2. If the action is against any other city, to the mayor, treasurer,
counsel, attorney, or clerk; or, if the city lacks either of those officers,
to the officer performing corresponding functions, under another
name.

3. In any other case, to the president or other head of the corpora-
tion, the secretary or clerk to the corporation, the cashier, the treas-
urer, or a director or managing agent.(*)

[Subd. 1 of this section has been taken from L. 1860, ch. 379, § 4 ;
subd. 3 is subd. 1 of § 1384 of the Code of Procedure, excluding that
portion which relates only to foreign corporations ; subd. 2 is new,
but it is believed that the propriety of some provision of this char-
acter is evident. See § 2879.]

Id,; upon § 432.* [Amended, 1877.] Personal service of the summons, upon
a foreign

corpora- a defendant, being a foreign corporation, must be made by delivering
a copy thereof, within the State, as follows:

1. To the president, treasurer, or secretary ; or, if the corporation,
lacks either of those officers, to the officer performing corresponding
functions, under another name.

2. To a person designated for the purpose by a writing, under the

194

 

(a) Applied to justice’s courts by § 2879, page 12.
CHAP. V.] PARTIES.

seal of the corporation, and the signature of its president, vice-presi-
dent, or other acting head, accompanied with the written consent of
the person designated, and filed in the office of the secretary of State.
The designation must specify a place, within the State, as the office or
residence of the person designated; and, if it is within a city, the
street, and street number, if any, or other suitable designation of the
particular locality. It remains in force, until the filing in the same
office of a written revocation thereof, or of the consent, executed in
like manner; but the person designated may, from time to time,
change the place specified as his office or residence, to some other place
within the State, by a writing, executed by him, and filed in like man-
ner. The secretary of State may require the execution of any instru-
ment, specified #n this section, to be authenticated as he deems
proper, and he may refuse to file it without such an authentication.
An exemplified copy of a designation so filed, accompanied with a
certificate that it has not been revoked, is presumptive evidence of
the execution thereof, and conclusive evidence of the authority
of the officer executing it.

3. If such a designation is not in force, or if neither the person
designated, nor an officer specified in subdivision first of this section,
can be found with due diligence, and the corporation has property
within the State, or the cause of action arose therein; to the cashier,
a director, or a managing agent of the corporation, within the State.(*)

[This section is a substitute for the previous legislation respecting
the service of a summons upon foreign corporations. The provisions
from which it is framed, and which it supersedes, are: Code of Pro-
cedure, § 134, subd. 1; and Laws of 1855, ch. 279, §$ 1-3 (3 Edm.,
685). Held, under these statutes, that service upon an officer tempora-
rily here is valid, only where the foreign corporation has property here,
or the cause of action arose here. Hillerv. B. dé WM. R. R. Co., 10 N.
Y., 223.

TITLE I.

Parties to an action.

8§ 446.

PART IL

§ 446. All persons having an interest in the subject of the action, who ma

be joine

and in obtaining the judgment demanded, may be joined as plain. ssPlaint-

tiffs, except as otherwise expressly prescribed in this act.(°)

[Co. Proc., § 117.]
195

 

(a) Applied to justices’ courts by § 2879, page 12.
(b) Applied to justices’ courts by § 3347, subd. 3, post.
8§ 449-450. PARTIES. [copE CIV. PROC.

JUSTICE’S
MANUAL.

Party in
interest to
sue.
Trustee,
etc., may

sue alone, .

When
married
woman

is a party.

§ 449. [Amended, 1877.] Every action must be prosecuted in the
name of the real party in interest, except that an executor or admin-
istrator, a trustee of an express trust, or a person expressly author-
ized by statute, may sue, without joining with him the person
for whose benefit the action is prosecuted. A person, with whom or
in whose name, a contract is made for the benefit of another, is a
trustee of an express trust, within the meaning of this section.(*)

[Co. Proc., part of § 111, and all of § 113. The transferee of a bill
of lading may bring an action against the carrier. Merchants’ Bank
v. U. RB. R. and T. Co., 69 N. Y., 373. ‘In an action on a promissory
note, the plaintiff’s title may be put in issue, and production of the
note at the trial does not prevent the defendant from attacking that
title. ITays v. Southgate, 18 Alb. L. J., 318. Butan absolute assign-
ment of a cause of action, enables the assignee to bring the action,
although the assignment is colorable, and without consideration,
Sheridan v. Mayor, 68 N. Y., 30. Anagent for collection cannot sue
in hisown name. Bell vy. Tilden, 16 Hun, 346; but a person agree-
ing to collect at his own expense, may. Haton vy. Alger, 47 N. Y.,
345. The people may sue, under the last sentence of this section,
People v. Struller, 16 Hun, 234. And see Dupre v. Rein, 56 How.
Pr., 228.]

§ 450. [Amended, 1879.] In an action or special proceeding, a
married woman appears, prosecutes, or defends, alone or joined with
other parties, as if she was single. It is not necessary or proper to
join her husband with her as a party in any action or special pro-
ceeding affecting her separate property. (*)

[Substituted for Co. Proc., § 114, and designed to sweep away what
is left of that section, by the various ‘‘married women’s acts”. If
the last clause of the original was intended to mean, as it literally
reads, that an infan¢ married woman need not appear by guardian ad
litem, it is objectionable on every principle. This section isin general
accordance with the ruling in Foster v. Conger, 61 Barb., 145. It was
held in Nagle v. Taggart, 4 Abb. N. C., 144, at special term of the su-
preme court, that, in an action to foreclose a mortgage made by hus-
band and wife, upon the husband’s property, service of the summons
on the husband alone is good service on him and his wife. The case
arose under the former statute, and it is believed that the doctrine is
abrogated by this section and § 426, ante. In Hoffman v. Lachtman,
Daily Register, March 25th, 1878, and Berrian v. Steel, id., May 16th,
1878, it was very properly held that this Code does not change the
husband’s common law liability for his wife’s torts. As to necessary
allegations in a married woman’s answer, see Ferris v. Holmes, 19 Alb.
L. J., 77. As to necessary allegations in a complaint in an action, on
a joint and several bond, against husband and wife, see Broome v.
Taylor, 19 Alb. L. J., 33%. The second sentence of this section was
added in 1879.]

196
(a) Applied to justices’ courts by § 3347, subd. 3, post.
CHAP. V.] POOR PARTIES. §§ 454-455,

§ 454. [Amended, 1877.] Two or more persons, severally liable Ghee oe

5 5 é * ‘ sons liable
upon the same written instrument, including the parties to a bill of for the
same de-

i i i mand ma‘
exchange or a promissory note, whether the action is brought upon Maud may

the instrument, or by a party thereto to recover against other parties ii

liable over to him ; may, all or any of them, be included as defend-
ants in the same action, at the option of the plaintiff.(*)

[Co. Proc., § 120. This section, as enacted in 1876, extended to all
actions upon the same demand, or substantially for the same cause of
action. It has been frequently held, that where the liability of princi-
pal and surety arose upon different instruments, although written upon
the same paper, the plaintiff cannot join them in one action, as in the
common case of a lease or promissory note, with a guaranty of pay-
ment subjoined. De Rider v. Schermerhorn, 10 Barb., 638 ; Gould v.
Moring, 28 id., 444; Allen v. Fosgate, 11 How. Pr., 218; Phalen v.
Dingee, 4 HE. D. Smith, 879; Barton v. Speis, 5 Hun, 60; Hoyt v.
Mead, 13 id., 324; Cawley v. Costello, 15 id., 303; Harris v. Eldridge,
5 Abb. N. C., 278. And in Barker v. Cassidy, 16 Barb., 177, it was
held that an action, by an indorser of a note, against prior indorsers
and the maker, for money paid to their use, is not within the statute,
as the action is not upon the note. These rulings point out defects
in the statute which the act of 1876 supplied ; but the legislature, in
1877, thought fit to strike out the clause inserted for that purpose, and
thus leave the law as it was. ]

§ 455. The joinder of a person, as defendant in an acticn, with Defendant]
so sue

another person, as prescribed in the last section, does not affect his may apply

right to any order or other relief, to which he would have been en- Tle!
titled, if he had been separately sued in the action.(*)

[L. 1841, ch. 282, § 1 (4 Edm., 457).]

ARTICLE THIRD.
PARTIES PROSECUTING AND DEFENDING AS POOR PERSONS.

PRELIMINARY Nore.—The first five sections of this article consist
of the provisions of 2 R. 8., 444, 445, Part 3, ch. 8, ti 1(3 B.S,
5th ed., 744, 745; 2 Edm., 463), adapted to our present system ; and
amended by omitting, at the end of subd. 2 of § 2 (§ 459 of this act),
the words, ‘‘ when not in possession thereof,” and by increasing the
sum, upon the lack of which the right to procure the order depends,
from $20 to $100. The article also contains three new sections, giving
the right to defend, in certain cases, as a poor person ; there being no
apparent reason, why this humane provision of the law should not be
extended to cases, where a poor man is required to defend his mght of
property. The provisions of this article apply to justices’ courts. See

§ 3347, subd. 3, post.
197

 

(a) Applied to justices’ courts by § 3347, subd. 3, post.
$§ 458-462. POOR PARTIES, [CODE CIV. PROC.

JUSTICE’S
MANUAL.
Who may

etition

or leave
to prose-
cute asa
poor per-
son.

Coutents
of peti-
tion.

When and
how leave
granted.

Not liable
for costs
and fees.

When
leave
may be
annulled.

§ 458. A poor person, not being of ability to sue, who alleges
that he has a cause of action against another person, may apply, by
petition, to the court in which the action is pending, or in which it
is intended to be brought, for leave to prosecute as a poor person,
and to have an attorney and counsel assigned to conduct his action.

[Section 1 of the title, mentioned in the preliminary note to this
article. |

§ 459. The petition must state:

1. The nature of the action brought, or intended to be brought.

2. That the applicant is not worth one hundred dollars, besides
the wearing apparel and furniture, necessary for himself and his
family, and the subject-matter of the action.

It must be verified by the applicant’s affidavit, and supported by
a certificate of a counsellor at law, to the effect that he has exam-
ined the case, and is of opinion that the applicant has a a good cause

of action.
[Id., § 2.]

§ 460. The court to which the petition is presented, if satisfied of
the truth of the facts alleged, and that the applicant has a good cause
of action, may, by order, admit him to prosecute as a poor person,
and assign to him an attorney and counsel to prosecute his action,
who must act therein without compensation.

[Id., § 3.]

§ 461. A person so admitted, may prosecute his action, without
paying fees to any officer ; and he shall not be prevented from prose-
cuting the same, by reason of his being liable for the costs of a former
action, brought by him against the same defendant. If judgment is
rendered against him, or his complaint is dismissed, costs shall not be
awarded against him.

[Id., § 4.]

§ 462. If the person so admitted is guilty of improper conduct in
the prosecution of his action, or of wilful or unnecessary delay, the
court may, in its discretion, annul the order admitting him to prose-

198
CHAP. V.] POOR PARTIES. 8§ 463-467,

cute as a poor person; and he shall thereafter be deprived of all the ean
privileges conferred thereby.

[Id., § 5.]

§ 463. A defendant in an action involving his right, title, or inter- When. it
. efendant
est, in or to real or personal property, may petition the court, in may. 4,
which the action is pending, for leave to defend the action as a poor oe

7 , person.
person, and to have an attorney and counsel assigned to conduct his *

defence.

[New. See the preliminary note to this article. |

g 464. The petition must contain the same matters, respecting the Ca
ability of the petitioner, required to be contained in a petition for toa.
leave to prosecute as a poor person; and it must be supported by a
similar certificate, relating to the defence.

[The same. |

§ 465. The provisions of this article, relating to the order, to be Proceea-
made upon an application for leave to prosecute as a poor person, thereon.
and the proceedings subsequent thereto, apply to the order and sub-
sequent proceedings, upon an application for leave to defend as a

poor person.

| The same.]
§ 466. An order, made as prescribed in this article, does not Appeal,
authorize the petitioner to take or maintain an appeal, as a poor per- party :
prosecutes
son ; but where an appeal is taken by the adverse party, the order or defends

is applicable, in favor of the petitioner, as respondent in the appeal. °°"
[New ; prepared for the purpose of saving questions which may
arise. |

§ 467. Where costs are awarded in favor of a person, who has Costs in
been admitted to prosecute or defend as a poor person, as prescribed Petitioner.
in this article, they must be paid over to his attorney, when col-
lected from the adverse party, and distributed among the attorney
and counsel assigned to the poor person, as the court directs.

[New ; supposed not to require special explanation. ]

199
§ 468. INFANT PARTIES. [copE CIV. PROC.
JUSTICH'S
MANUAL,

ARTICLE FOURTH.

INFANT PLAINTIFFS AND DEFENDANTS.

Right of § 468. Where an infant has a right of action, he is entitled to

infant to

bring maintain an action thereon; and the same shall not be deferred or

delayed, on account of his infancy.

. [2 R. 8, 446, Part 3, ch. 8, tit. 2,8 1(3R. 8., 5th ed., 745 5 2 Edm.,
465), amended by striking out, after ‘‘right of action”, the words,
“to recover real property or the possession thereof, or to recover any
debt or damages.” See Segelken v. Meyer, 14 Hun, 593. ]

200
CHAP. VI. ] COUNTERCLAIM. § 501.

PART Ul.

 

 

CHAPTER VI.

(EXTRACTS.)

PLEADINGS IN COURTS OF RECORD, INCLUDING
COUNTERCLAIMS.

TITLE I.

The consecutive pleadings in an action

ARTICLE THIRD.

ANSWER,

§ 501.* [Amended, 1877.] The counterclaim, specified in the last Counter.
section, mast tend, in some way, to diminish or defeat the plaintiff’s de4ne¢-
recovery, and must be one of the following causes of action against
the plaintiff, or, ina proper case, against the person whom he rep-
resents, and in favor of the defendant, orof one or more defendants,
between whom and the plaintiff a separate judgment may be had in
the action.

1. A cause of action arising out of the contract or transaction, set
forth in the complaint as the foundation of the plaintiff’s claim, or
connected with the subject of the action.

2. In an action on contract, any other cause of action on contract,
existing at the commencement of the action.(*)

[Substituted for portions of Co. Proc., § 150. The words, “must
tend in some way to diminish or defeat the plaintiffs recovery,” were
added in 1877. See Waddell v. Darling, 51 N. Y., 327; Natioval Fire
Insurance Co. v. McKay, 21 N. Y.,191; Seligman v. Dudley, 14 Hun,
186. The object of the amendment was to exclude certain causes of
action having no connection whatever with that set forth in the com-
plaint, and which could not in any way affect the judgment upon the
latter, although the literal reading of the statute would allow them
to be interposed, as, for instance, where, in an action to foreclose
a mortgage, the defendant set.up as a counterclaim a demand on his
part for the foreclosure of a mortgage upon a different piece of prop-
erty. See, also, Smith v. Hall, 67 N. Y., 48. Notwithstanding this
amendment, the language is still obscure, but, as the provision has
remained unaltered, since its amendment, in 1852, no other radical

[26] 201

(a) This section is applied to justices’ courts by § 2945, p 44.

 
§ 502.

JUSTICE'S
M

ANUAL.

Rules i
respecting
the allow-
ance of
counter-
claims.

COUNTERCLAIM. [CODE CIV. PROC.

changes have been made init. The next two sections, which have
been prepared with great care, are intended to supply its defects. It
1s supposed that such provisions of the R. S., relating to set-offs, as
were not superseded by, or inconsistent with Co. Proc., 8 150, re-
mained in force. The following portions of the section of the R. 8.,
regulating set-offs, are regarded as thus abrogated :

“1. It must be a demand arising upon judgment or upon contract,
express or implied, whether such contract be written or unwritten,
sealed or without seal; and if it be founded upon a bond or other con-
tract having a penalty, the sum equitably due, by virtue of its condi-
tion, only shall be set off.

“©2. It must be due to him in his own right, either as being the
original creditor or payee, or as being the assignee and owner of the
demand.

«3. It must be a demand for real estate sold, or for personal prop-
erty sold, or for money paid or services done; or if it be not such a
demand, the amount must be liquidated, or be capable of being ascer-
tained by calculation.

“4, It must have existed at the time of the commencement of the
suit, and must then have belonged to the defendant.

«5. It can be allowed only in actions founded upon demands, which
could themselves be the subject of set-off according to law.

“6. If there be several defendants, the demand set off must be due
to all of them jointly.” 2R.8., 354, Part 3, ch. 6, tit. 2, § 18, subd.
1-6 (3R.S,, 5th ed., 634; 2 Edm., 365, 366).

The remainder of the provisions of the R.S., regulating set-offs,
are preserved, as far as they are consistent with the existing practice,
by the next section. ]

§ 502.* [Amended, 1877.] But the counterclaim, specified in sub-
division second of the last section, is subject to the following rules:

1. If the action is founded upon a contract, which has been
assigned by the party thereto, other than a negotiable promissory
note or bill of exchange, a demand, existing against the party
thereto, or an assignee of the contract, at the time of the assignment
thereof, and belonging to the defendant, in good faith, before notice
of the assignment, must be allowed as a counterclaim, to the amount
of the plaintiffs demand, if it might have been so allowed against
the party, or the assignee, while the contract belonged to him.

2. If the action is upon a negotiable promissory note or bill of
exchange, which has been assigned to the plaintiff after it became
due, a demand, existing against a person who assigned or transferred
it, after it became due, must be allowed as a counterclaim, to the
amount of the plaintiff's demand, if it might have been so allowed
against the assignor, while the note or bill belonged to him.

3. If the plaintiff is a trustee for another, or if the action is in

202
OHAP. VI.] COUNTERCLAIM. §§ 505-506.

the name of a plaintiff, who has no actual interest in the contract
upon which it is founded, a demand against the plaintiff shall not be
allowed as acounterclaim ; but so much of a demand existing against
the person whom he represents, or for whose benefit the action is
brought, as will satisfy the plaintiff's demand, must be allowed as a
counterclaim, if it might have been so allowed in an action brought
by the person beneficially interested.(*)

[Subd. 1 has been modelled upon subd. 8 of § 18 of the R.S., cited
in the note to the last section ; subd. 2, upon subd. 9 of the same sec-
tion; and subd. 3, upon subd. 10 of the same section, and so much of
subd. 7 as is not abrogated.

This section, as enacted in 1876, contained also a subd. 4, founded
upon subd. 11 of § 18 of the RS. The amendatory act of 1877 struck
out subd. 4, and thus probably effected a change in the law relating to
counterclaims against receivers and trustees of insolvent and impris-
oned debtors.

It will be noticed that this section contemplates the abolition of the
word, “set-off”, as descriptive of a legal remedy, and the substitution
of the word, ‘‘ counterclaim”, in all cases where the defendant inter-
poses a cross demand ; whether it accrued originally against the plain-
tiff, or against the person whom he represents. This was, apparently,
the intention of § 150 of the Code of Procedure; for a right to enforce
a set-off is certainly an equitable “ cause of action arising on contract”,
and ‘‘ existing against the plaintiff”, even where the plaintiff is the
assignee of the original demand. The understanding, however, seems
to have been otherwise. |

§ 505.* In an action against an executor or an administrator, or
other person sued in a representative capacity, the defendant may
set forth, as a counterclaim, a demand belonging to the decedent, or
other person whom he represents, where the person so represented
would have been entitled to set forth the same, in an action against
him. (?)

[Section 25 of the same title of the R. 8. (3 B.S. 5th ed., 636; 2
Edm., 367), adapted to the present system. |

§ 506.* In an action brought by an executor or administrator, in
his representative capacity, a demand against the decedent, belong-
ing, at the time of his death, to the defendant, may be set forth by
the defendant as a counterclaim, as if the action had been brought
by the decedent in his lifetime; and, if a balance is found to be
due to the defendant, judgment must be rendered therefor against
the plaintiff, in his representative capacity. Execution can be issued

203

 

a) This section is applied to justices’ courts by § 2945, p. 44.
& Applied to justices’ courts by § 2946, p. 44.

PART II.

Counter-.
claim,
when de-
fendant
is sued in
a repre-
sentative
capacity.

Id.; when
plaintiff is
ap execu-
tor or ad-
minis-
trator.
§§ 525-526. VERIFYING PLEADINGS.  [copz crv. PRoo.

MANUAL Upon such a judgment, only in a case where it could be issued upon

a judgment, in an action against the executor or administrator.(*)
[Id., §§ 23 and 24. The demand against the decedent must have

been duc and payable in his lifetime. See Jordan v. 8. é L. Nat. Bank,
74. N. Y., 467, which is applicable to this section.]

TITLE II.
Provistons generally applicable to pleadungs.

oanane2 §525.* [Amended, 1879.] The verification must be made by the
tion; how

andby affidavit of the party, or, if there are two or more parties united in
made. interest, and pleading together, by at least one of them, who is ac-
quainted with the facts, except as follows:

J. Where the party is a domestic corporation, the verification
must be made by an officer thereof.

2. Where the people of the State are, or a public officer, in their
behalf, is the party, the verification may be made by any person
acquainted with the facts.

3. Where the party is a foreign corporation ; or where the party
is not within the county where the attorney resides, or, if the latter
is not a resident of the State, the county where he has his office, and
capable of making the affidavit ; or, if there are two or more parties
united in interest, and pleading together, where neither of them,
acquainted with the facts, is within that county, and capable of
making the affidavit; or where the action or defence is founded upon
a written instrument for the payment of money only, which is in
the possession of the agent or the attorney; or where all the material
allegations of the pleading are within the personal knowledge of the
agent or the attorney; in either case, the verification may be made
by the agent of or the attorney for the party.(°)

[Part of Co. Proc., § 15%.]

Form of

§ 526.* The affidavit of verification must be to. the effect, that the
verlfcae - pleading is true to the knowledge of the deponent, except as to the
204

 

a) Applied to justices’ courts by § 2946, p. 44.
() See 8 2235, p. 828,
CHAP. VI.] VERIFYING PLEADINGS.

matters therein stated to be alleged on information and belief, and
that as to those matters he believes it to be true. Where it is made
by a person, other than the party, he must set forth, in the affidavit,
the grounds of his belicf, as to all matters not stated upon his
knowledge, and the reason why it is not made by the party.(*)

{From Co. Proc., § 157. The requirement, that the agent or attor-
ney should set forth his knowledge in the affidavit, has been omitted,
because § 524 requires that the pleading should show whether he
makes an allegation upon knowledge, or upon information and belief.
Where the aftidavit of verification by an attorney was inconsistent
with an allegation in the answer, the court set aside the answer and
required the defendant to serve a copy of an answer verified by him-
self. Jatllard v. Tomes, 3 Abb. N.C., 24. Where all the allegations
are made upon the knowledge of the person verifying, the affidavit
may omit the statement as to information and belief. Ladue v. An-
drews, 54 How. Pr., 160. A statement that the attorney “could not
find the party in the city”, gives no suflicient reason for a verification
by an attorney, and such an answer may be treated as a nullity.
Lyons v. Murat, 1d., 23. ]

205

 

(a) See § 2235, p. 828-

§ 526,

PART IL,
§§ 548, 564, ARREST AND BAIL. [CODE CIV. PROG.

JUSTICE’S
MANUAL.

No_ person

arrested
in clvil
proceed-
ings, with-
out a
statutory
rovision.
e exeat
abolished.

General
provision
as to
privilege
from
arrest ;
discharge
of privi-
leged
person.

CHAPTER VII.

(EXTRACTS.)

GENERAL PROVISIONAL REMEDIES IN AN ACTION

TITLE I.

Arrest, pending the action, and proceedings thereupon.

ARTICLE FIRST.

CASES WHERE AN ORDER OF ARREST MAY BE GRANTED, AND PERSONS LIABLE TO
ARREST,

§ 548. [Amended, 1877.] A person shall not be arrested in a
civil action or special proceeding, except as prescribed by statute.
The writ of ne exeat is hereby abolished.

[See Co. Proc.,§ 178. Held,.in People v. Donohue, 15 Hun, 481)
that the provisions of the ‘‘non-imprisonment act” (L. 1831, ch. 300),
authorizing an arrest by warrant, etc., were not abrogated by this
Code or the Code of Procedure. But the entire act was repealed by
the general repealing act of 1880. ]

ARTICLE SECOND.

GRANTING, EXECUTING, AND VACATING OR MODIFYING THE ORDER OF ARREST.

§ 564.* This title does not abridge or affect a privilege from
arrest given by law, or a right of action for a breach thereof. A
privileged person is entitled to be discharged from arrest, where
other provision is not made therefor by law, by the court, or a judge
thereof ; or by the county judge of the county, or a judge of a
superior city court of the city, where the arrest was made. The
order must be made, upon proof, by affidavit, of the facts entitling
the applicant to the discharge; and the arrest and discharge are not
a barito a new arrest, after the privilege has ceased. The court or
judge may make the order without notice, or may require notice to
be given to the sheriff, or to the plaintiff, or to both.(*)

[New; conforming substantially to the provisions for the discharge
of witnesses arrested, contained in ch. 9 (§§ 861 and 862).]

206

 

(a) Applied to justices’ courts by § 2904, p. 24.
CHAP. VIL. ] ARREST AND BAIL. §§ 579-581.

PART IT

ARTICLE THIRD.
DISCHARGING THE DEFENDANT UPON BAIL OR DEPOSIT ; JUSTIFICATION OF THE
BAIL AND DISPOSITION OF THE DEPOSIT.
§ 579.* The qualifications of bail are as follows: Qualifica-
bail.

1. Each of them must be a resident of, and a householder or free-
holder within the State.

2. Each of them must be worth the sum specified in the order of
arrest, exclusive of property exempt from execution; but the judge,
on justification, may allow more than two bail to justify, severally,
in sums less than that specified in the order, if the whole justification
is equivalent to that of two sufficient bail.(*)

[Co. Proc., § 194. It has been held repeatedly that, under the Code
of Procedure, the common law rules, disqualifying attorneys and cer-
tain other persons, from becoming bail, were not abrogated. But in
1877, a clause was added to rule 5, expressly prohibiting an attorney
or counsellor from being bail. ]

§ 580.* For the purpose of justification, each of the bail must justiflga-
attend before the judge, at the time and place mentioned in the oat
notice, and be examined on oath, on the part of the plaintiff, touch-
ing his sufficiency, in such a manner as the judge, in his discretion,
thinks proper. The judge may, in his discretion, adjourn the ex-
amination from day to day, until it is completed; but such an
adjournment must always be to the next judicial day, unless by
consent of parties. If required by the plaintiffs attorney, the
examination must be reduced to writing, and subscribed by the
bail. (*)

[Co. Proc., § 195, amended by adding the second sentence.]

§ 581.* If the judge finds the bail sufficient, he must annex the Allowance
examination to the undertaking, indorse his allowance thereon, and
cause them to be filed with the clerk. The sheriff is thereupon
exonerated from liability. (*)

[Co. Proc., § 196, amended by omitting “or justice of the peace.”]
207

 

(a) Applied to justices’ courts by § 2926, p. 37.
§§ 723-728, MISTAKES, ETC. [CODE crv. PROG.
JUSTICE’S
MANUAL.

CHAPTER VIII.

(EXTRACTS. )

MISCELLANEOUS INTERLOCUTORY PROCEEDINGS,
AND REGULATIONS OF PRACTICE.

TITLE I.

Mistakes, omissions, defects, and irregularities.

Ee § 723. [Amended, 1877.] The court may, upon the trial, or a-

Aeon any other stage of the action, before or after judgment, in further-

ing imma- LNs . .
terial ance of justice, and on such terms as it deems just, amend any pro
errors, etc. :

cess, pleading, or other proceeding, by adding or striking out the
name of a person as a party, or by correcting a mistake in the name
of a party, or a mistake in any other respect, or by inserting an
allegation material to the case; or, where the amendment does not
change substantially the claim or defence, by conforming the plead-
ing or other proceeding to the facts proved. And, in every stage
of the action, the court must disregard an error or defect, in the
pleadings or other proceedings, which does not affect the substantial
rights of the adverse party.(*)

[Co. Proc., § 173, and part of § 176. The only limit to the power
to amend pleadings upon the trial is that a new cause of action must
not be introduced. Reeder v. Sayre, 70 N. Y., 180. An amendment
changing the action against the defendant as administratrix, to one
against her individually, may be made upon a motion before the trial.
Tighe v. Pope, 16 Hun, 180. But an amendment at the trial, chang-
ing the action from one to remove a cloud upon the title, and for rents
and profits, to ejectment, is not admissible. Bockes v. Lansing, 74
N. v., 437. The terms imposed may be reviewed on appeal, by the
general term. Hand vy. Burrows, 15 Hun, 481.]

pisregard~ § 728. The want of a title, ora defect in the title, of an affidavit,

in affida- ae Oh asd! Wain cts i : :
vits. does not impair it, if it intelligibly refers to the action or special

proceeding, in which it is made.(*)

[Co. Proc., § 406. But semble, that leaving the affiant’s name in
blank in the affidavit is a fatal defect. People v. Sutherland, 16 Hun,

192.]
208

 

(a) Applied to justices’ courts by § 3347, subd. 6, post..
CHAP. VIII. ] PARTY’S DEATH. §§ 729-764.

87 29. A bond or undertaking, required by statute to be given by
a person, to entitle him to a right or privilege, or to take a proceed-
ing, is sufficient, if it conforms substantially to the form therefor,
prescribed by the statute, and does not vary therefrom, to the preju-
dice of the rights of the party, to whom, or for whose benelit, it is
given. (?)

[2 R. S., 556, Part 3, ch, 8, tit. 17, § 33 (3 R. 5, dSthed., 870; 2
Edm., 576), amended by adding the words, “or undertaking.” |

§ 730. Where such a bond or undertaking is defective, the court
officer, or body, that would be authorized to receive it, or to enter-
tain a proceeding in consequence thereof, if it was perfect, may, on
the application of the persons who executed it, amend it accordingly;
and it shall thereupon be valid, from the time of its execution.(*)

[Id., § 84, similarly amended.]

TITLE III.
Payment of money into court, and care and disposition thereof.

§ 749. A county treasurer, or other officer, or a guardian, commit-
tee, or other trustee, in whose name is taken a bond, mortgage, or
other security, or public stock, representing money, paid into court,
in an action; or to whom stock or a security, or an account, deed,
voucher, receipt, or other paper, representing or relating to such
money, is transferred, delivered, made, or given, pursuant to law ; is
vested with title for the purposes of the trust, and may bring an
action upon or in relation to the same, in his official or representa-

tive character.(*)
[See L. 1848, ch. 277, § 4.]

TITLE IV.

Proceedings upon the death or disability of a party, or the transfer
of his interest.

§ 764. [Amended, 1880.] After verdict, report, or decision, in an
action to recover damages for a personal injury, the action does not
[27] 209

 

(a) Applied to justices’ courts by 3347, subd. 6, post.

PART II.

Certain
bonds,
etc., when
sufficient.

Amending
defects in
bonds,
etc.

Powers of
certain
Officers,
touching
securities,
etc.

Action for
a wrong
not to
abate after
verdict,
etc.
§§ 765-788, COMPUTATION OF TIME, [CODE CIV. PROG.

JUSTICE’S

MANUAL.

No ver-
dict, etc.,
can be
taken
after a
arty’s
eath.

Time for
publica-
tion of
notice ;
how com-
puted,

Time for
doing any
act; how
computed.

abate by the death of a party, unless the verdict, report, or decision
is finally set aside. Until it is finally set aside, the subsequent. pro-
ceedings, including an appeal from an order setting it aside, or from
a judgment or order reversing or setting aside a judgment entered
thereupon, and a new trial of the action on the merits, when a new
trial is ordered, are the same, as in a case where the cause of action
survives. (*)

[Prepared as a substitute for the fourth sentence of § 121 of the
Code of Procedure. Literally, the original means that a cause of
action for a wrong, if a verdict thereon has been rendered, will sur-
vive the death of either party, not merely until a case or exceptions
can be heard, but for all time to come; so that, if the verdict 1s set
aside, or a judgment thereon is reversed on appeal, the plaintiff may
again try the cause. Such, doubtless, was not the intention of the
legislature ; and this section has been framed in accordance with the
construction of the original, in Wood v. Phillips, 11 Abb., N.S., 1;
and, in Spooner v. Keeler, 51 N. Y., 527, particularly the concluding
sentence of the opinion of Lorr, Ch. Com., on p. 536.]

§ 765. This title does not authorize the entry of a judgment
against a party, who dies before a verdict, report, or decision is
actually rendered against him. In that case, the verdict, report, or
decision is absolutely void. (*)

[2 R. 8., 387, Part 3, ch. 7, tit.1, § 5 (3 R.S., 5th ed., 669; 2 Edm.,
402), amended by omitting the clause of the original, beginning with
“ notwithstanding.” |

TITLE VI.

Miscellaneous practice regulations.

§ 787. 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
completes the full period of publication.(*)

[Co. Proe., § 425.]

§ 788. [Amended, 1877.] The time, within which an act, in an
action or special proceeding, brought, as specified in the last section,
210

 

(a) Applied to justices’ courts by § 3347, subd. 6, post.
,

CHAP. vil.] BONDS AND UNDERTAKINGS. §§ 810-812.

is required by law to be done, must be computed, by excluding the
first, and including the last day; except where it is otherwise spe-
cially prescribed by law. If the last day is Sunday, or a public holi-
day, it must be excluded. Where the act is required to be done
within two days, and an intervening day is Sunday, or a public holi-
day, it must also be excluded.

[Co. Proc., § 407, amended by adding the words, “or a public holi-
day,” in the second, and the whole of the concluding sentence. See
Anonymous, 2 Hill, 375. This mode of computation does not apply,
where the statute says “after the expiration of” a particular time.
Marvin v. Marvin, 75 N. Y., 240. ]

‘

ARTICLE FIFTH.
GENERAL REGULATIONS RESPECTING BONDS AND UNDERTAKINGS.

§ 810. [Amended, 1877.] A bond or undertaking, given in an
action or special proceeding, as prescribed in this act, must be
acknowledged or proved, and certified, in like manner as a deed to
be recorded.(*)

{[New. This section, which corresponds to part of Rule 5, renders
unnecessary the repetition of numerous provisions of the statutes,
wherein a similar direction is given, with respect to the particular
bond, ete., therein treated of]

§ 811. Where a provision of this act requires a bond or under-
taking, with sureties, to be given by, or in behalf of, a party or other
person, he need not join with the sureties in the execution thereof,
unless the provision requires him to execute the same; and the exe-
cution thereof by one surety is sufticient, although the word, “ sure-
ties,” is used, unless the provision expressly requires two or more
sureties.(*)

[New; but in accordance with the construction, given to various
provisions of the Code of Procedure, by numerous cases. |

§ 812. A bond or undertaking, executed by a surety or sureties,
as prescribed in this act, must, where two or more persons execute
it, be joint and several in form; and, except as otherwise expressly
prescribed by law, it must be accompanied with the affidavit of each
surety, subjoined thereto, to the effect, that he is a resident of, and
a householder or freeholder within, the State, and is worth the

211

 

(a) Applied to justices’ courts by § 3347, subd. 6, post.

PART II.

Bonds,
un@ertak-
ings, etc.,
must be
acknowl-
edged.

Party need
not join
with his
sureties 3
when one
surety is
sufficient.

Form of
bond or
undertak-
ing; affi--
davit of
sureties ;
approval
by court or
judge.
§§ 813-814. BONDS AND UNDERTAKINGS. [cops crv. proc.

MANUAL penalty of the bond, or twice the sum specified in the undertaking,

over all the debts and liabilities, which he owes or has incurred, and
exclusive of property, exempt by law from levy and sale under an
execution. A bond or undertaking given bya party, without a
surety, must be accompanied by his affidavit, to the same effect.
The bond or undertaking, except as otherwise expressly prescribed
by law, must be approved by the court, before which the proceeding
is taken, or a judge thereof, or the judge, before whom the proceed-
ing is taken. The approval must be indorsed upon the bond or
undertaking.(*)

[New ; designed to include the essential provisions of 2 R. 8., 190,
Part 3, ch. 1, tit. 2, § 148 (2 Edm., 198), and various other provisions
of the statutes and Rules.]

wae § 818. But where the penalty of the bond, or twice the sum
may specified in the undertaking, is twenty thousand dollars, or upwards,
justify,

h 5 . . “Ve . ° , .
eachina the court or judge may, in its or his discretion, allow the sum, in

sum.

which a surety is required to justify, to be made up by the justifica-
tion of two or more sureties, each ina smaller sum. But, in that
case, a surety cannot justify in a sum less than ten thousand dollars
and, where two or more sureties are required by law to justify, the
same person cannot so contribute to make up the sum, for more than
one of them.

[New ; designed to provide for certain cases of hardship, which are
very likely to occur, in accordance with the principle of the last clause
of Co. Proc., § 194. See, also, id., § 339. This section is so framed
as to prevent a party, who is required to furnish two sureties, justi-
fying in thirty thousand dollars each, from furnishing, for instance,
one to justify in fifty thousand dollars, and two in five thousand dol-
lars each.](*)

pee § 814. Where a bond or undertaking has been given, as prescribed

the people . : : »
orapublie by law, in the course of an action or special proceeding, to the people
officer for

the benefit or to a public officer, for the benefit of a party or other person inter-
ested, and provision is not specially made by law for the prosecution
thereof; the party or other person, so interested, may maintain an
action in his own name, for a breach of the condition of the bond,
or of the terms of the undertaking; upon procuring an order,
granting him leave so to do. The order may be made by the court,
in which the action is or was pending; or by a superior city court,
212

 

(a) Applied to justices’ courts by 8 3347, subd. 6, post.
CHAP. vuL] FILING PAPERS. §§ 815-825.

PART II,

the marine court of the city of New-York, or a county: court, if the
bond or undertaking was given in a special proceeding, pending
before a judge of that court; or, in any other case, by the supreme
court. Notice of the application therefor must be given, as directed
by the court or judge, to the persons interested in the disposition of
the proceeds.(*)
[New. ‘There are various cases within the terms of this section,
which appear to have been hitherto unprovided for. |
§ 815. A bond or undertaking, given in an action or special pro- Bonds,
: ‘ . affected
ceeding, as prescribed in this act, continues in force, after the substi- by change
3S) ? of parties.
tution of a new party in place of an original party, or any other
change ot parties; and has thereafter the same force and effect, as
if then given anew, in conformity to the change of parties.(*)
[New ; in accordance with the rule laid down, in Potter v. Van
Vranken, 36 N. Y., 619.]
§ 816. A bond or undertaking, required to be given by this act, dehy taba

must be filed with the clerk of the court; except where, in a special
case, a different disposition thereof is directed by the court, or pre-
seribed in this act.(*)

[Co. Proc., § 423, with no material change, except the omission of
the provision as to filing undertakings given for replevin, which is one
of the “special cases”, and is provided for, in ch. 15 of this Code.
See, as to filing papers in justices’ courts, § 3134.](*)

ARTICLE SIXTH.

OTHER MArTErs.

§ 825. A return or other paper in a special proceeding, where no papers in
3 ante 4 ‘ ial
other disposition thereof is prescribed by law, must be filed, and an proceed

order therein must be entered, with the clerk of the county in which Where.to

the special proceeding is taken, if it is before a county officer, or a
judge of a court established in a city; if before a justice of the
supreme court, with the clerk of a county designated by the justice ;
or, if no designation is made by him, of a county where one of the
parties resides.(*)

[L. 1847, ch. 470, § 20 (4 Edm., 584), extended so as to include
judges of city courts. See § 3347, subd. 6, post. This section is
qualified, as to proceedings before justices of the peace by § 3134.](*)

213

(a) Applied to justices’ courts by § 3347, subd. 6, post. (b) See page 127, ~

 
§ 826. PUBLICATION. [CODE CIV. PROC.

MANUALS § 826. [Amended, 1877.] Where a notice, or other proceeding, is
Publica- é é . . .

tion,where required by law to be published in a newspaper published in a county,
no news- 2 \ .

papers, and no newspaper is published therein, or to be published oftener
county.

than any newspaper is regularly published therein, the publication
may be made in a newspaper of an adjoining county, except where
special provision is otherwise made by law.(*)

[2 R. 8., 552, Part 3, ch. 8, tit. 17, § 10 (3 R.S., 5th ed., 866 ; 2
Edm., 572.]

214

 

(a) Applied to justices’ courts by § 3347, subd. 6, post.
CHAP. 1X.] EVIDENOKE. 4$ 828-829.

PART IL

CHAPTER IX.

(EXTRACTS.)

EVIDENCE.

PRELIMINARY Note.—L. 1880, ch. 36, allowing the comparison of
handwritings by witnesses, and their testimony relating thereto, ap-
plies to justices’ courts.

TITLE I.

General regulations respecting evidence, and the competency and
mode of examination of a witness.

ARTICLE 1. Competency of a witness ; evidence in particular cases,
2. Administration of an oath or affirmation. —

ARTICLE FIRST.

COMPETENCY OF A WITNESS ; EVIDENCE IN PARTICULAR CASES

§ 828. Except as otherwise specially prescribed in this title, a per- Nowitness
son shall not be excluded or excused from being a witness, by reason feason of
of his or her interest in the event of an action or special proceeding ; ae
or because he or she is a party thereto; or the husband or wife of a
party thereto, or of a person in whose behalf an action or special
proceeding is brought, prosecuted, opposed, or defended.

[Co. Proc., § 398 ; and L. 1867, ch. 887, § 1 (7 Edm., 198). ]

§ 829. [Amended, 1877.] Upon the trial of an action or the hear- aoe
ing upon the merits of a special proceeding, a party or a person inter- Sethe”
examined.

ested in the event, or a person from, through or under whom sucha
party or interested person derives his interest or title, by assignment
or otherwise, shall not be examined as a witness, in his own behalf or
interest, or in behalf of the party succeeding to his title or interest,

against the executor, administrator, or survivor of a deceased per-
215
§§ 830-831. EVIDENCE. [CODE CIV. PROC.

JUSTICE’S
MANUAL.

When
testimony
on former
trial ad-
missible.

When hus-
band and
wife not
competent
witnesses.
When
competent.

son, or the committee of a lunatic, or a person deriving his title or
interest from, through, or under a deceased person or lunatic, by
assignment or otherwise ; concerning a personal transaction or com-
munication between the witness and the deceased person or lunatic;
except where the executor, administrator, survivor, committee, or
person so deriving title or interest is examined in his own behalf, or
the testimony of the lunatic or deceased person is given in evidence,
concerning the same transaction or communication.

[Substituted for Co. Proc., § 399. The essential changes are the fol-
lowing. The introductory clause, “uvon the trial,” etc., excludes
interlocutory proceedings. ‘The words, ‘‘in his own behalf or inter-
est, or in behalf of the party succeeding to his title or interest,” change
the rule which was established under the former statute, that it made
no difference, upon the question of competency, whether the witness
was called in his own or in any other person’s behalf or interest. Rich-
ardson Vv. Warner, 13 Hun, 13; Gifford v. Sackett, 15 Hun, 79; Alez-
ander v. Dutcher, 70 N. Y., 385. For other recent cases, relating to
competency under this clause, applicable to this section as it now
stands, see Allisy. Stafford, 14 Hun, 418; Whitehead v. Smith, id,
531; Kraushaar v. Meyer, 72 N. Y., 602; Children’s Aid Soe. v.
Loveridge, 70 N. Y., 387; Waver v. Waver, 15 Hun, 277; Nearpass
v. Gilman, 16 Hun, 121. The express limitation of the provision, to
the case where the person represented by the adverse party is deceased,
or insane, “at the time of such examination,” has been omitted. It is
immaterial ; otherwise, a collateral issue, respecting the sanity of the
party represented by a committee, might be tried. The remedy,
where an insane party is restored to reason, would obviously be by
motion. |

§ 830. [Inserted, 1879.] Where a party has died since the trial ot

van action, on (*) the hearing upon the merits of a special proceed-

ing, the testimony of the decedent, or of any person who is rendered
incompetent by the provisions of the last section, taken or read in
evidence at the former trial or hearing, may be given or read in
evidence at a new trial or hearing by either party, subject to any
other legal objection to the competency of the witness, or to any
legal objection to his testimony or any question put to him.

[This section was inserted in 1879, in place of a section stricken out
in 1878.]

§ 831. [Amended, 1877, 1879 and 1880, vh. 149.] A husband or a
wife is not competent to testify against the other, upon the trial of an
action, or the hearing upon the merits, of a special proceeding, founded

upon an allegation of adultery; except to prove the marriage. A
216

 

(a) Engrosser’s error for ‘‘ or.”
CHAP, IX.] EVIDENCE.

husband or wife shall not be compelled, or without consent of the
other if living, allowed, to disclose a confidential communication,
made by one to the other, during the marriage. In an action for
criminal conversation, the plaintiff’s wife is not a competent witness
for the plaintiff, but she is a competent witness for the defendant,
as to any matter in controversy; except that she cannot, without
the plaintiffs consent, disclose any confidential communication had
or made between herself and the plaintiff.

(‘The first sentence was stricken out in 1879, and restored in 1880.
This section, as now framed, aud § 828 remove all restrictions upon a
husband’s or wife’s competency in a civil action, except as declared
in this section, and §$§ 829 and 830.]

§ 832. [Amended, 1879.] A person, who has been convicted of a
erime or misdemeanor is, notwithstanding, a competent witness in
a civil or criminal action or special proceeding; but the conviction
may be proved, for the purpose of affecting the weight of his testi-
mony, either by the record, or by his cross-examination, upon which
he must answer any question, relevant to that inquiry; and the
party cross-examining him is not concluded, by his answer ‘to such a
question.

_ [This section is new. It abolishes a relic of the old rules disquali-
fying witnesses, which is contrary to the spirit of modern legislation,
upon the subject, in this State, and which has been abolished in Eng-
land, for fully a third of a century. It seems now to be the settled
theory, in regard to the competency of witnesses, that the court or
jury should have all the light thrown upon the facts, which it is
possible to procure, leaving the tribunal itself to judge, what degree
of credence to give to the evidence offered. The rendering of felons
incompetent witnesses seems to have been based, partly upon the idea
that their testimony is wholly unreliable and unsafe, and partly upon
the notion that it is a proper punishment for their crimes. Upon
neither theory, can it be justified. There is no more reason to apprehend
that persons, who have been convicted of felony, will, as a class, be
guilty of wilful perjury, especially in a matter in which they have no
interest, than there is, to apprehend the same consequences, from an
admission of many other classes of persons, who are now competent
witnesses ; and not so much as in the case of the persons, from whom
the disability has been recently removed. The idea that the disquali-
fication is a proper punishment for crime, is even more illogical. It
tends, indeed, to disgrace the criminal; but, in most cases, the weight
of the punishment falls, not upon him, but upon the innocent party
who happens to be in a position to need his testimony. It has been
held that, under the act of 1869 (ch. 678), the defendant in an indict-
ment is a competent witness in his own behalf, notwithstanding that
he has served out a term in the State prison, upon a former conviction

[28] 217

§ 832.

PART II.

Conviction
for crime,
not to
exclude
witness ;
how con-
viction
proved.
§§ 833-836. EVIDENCE. [CODE CIV, PROC.

JUSTICES
MANUAL.

Clergy-
men, etc.,
not to dis-
close con-
fessions.

Physicians
not to dis-
close pro-
fessional
informa-
tion.

Attorneys
and coun-
sellors not
to disclose
communi-
cations.

Applica-
tion of
the last
three
sections.

of felony. Delamater vy. People, 5 Alb. L. J., 122. Now that inter-
ested persons, parties, and their wives, or husbands, and even persons
charged with crime, are competent witnesses, consistency seems to
demand that the only remaining disability should be swept away. It
was swept away, in England, in 1843, by Lord Denman’s act, together
with the disqualification on the ground of interest ; although a sub-
sequent statute creates an exception, which prevents a person, accused
of crime, from testifying in his own behalf, upon the trial. See 6 and
7 Vict., c. 85; 14 and 15 Vict., c. 99, §§ 2 and 3. The reform has
been cordially approved of, by the subsequent text writers. See Taylor
on Evidence, 6th ed. (1872), 1165, 1171, 1177. Best on Evidence,
American edition (1875), vol. 1, 263, 264.

This section allows the conviction to be proved upon cross-exami-
nation, in order that the opposing party may more readily exhibit the
witness to the jury.|

§ 833. A clergyman, or other minister of any religion, shall not
be allowed to disclose a confession made to him, in his professional
character, in the course of discipline, enjoined by the rules or prac-
tice of the religious body, to which he belongs.

[2 R.8., 406, Part 3, ch. 7%, tit. 3, § 72 (3 R.S., 5th ed., 690; 2
Edm., 422), amended so as to include a minister of any religion, the
original being confined to a minister of the gospel, or a priest. |

§ 834. A person, duly authorized to practice physic or surgery,
shall not be allowed to disclose any information which he acquired
in attending a patient, in a professional capacity, and which was
necessary to enable him to act in that capacity.

[Id.,§ 73. See Dilleber v. Home L. Ins. Co., 69 N. Y., 256; Badcock
v. The People, 15 Wun, 347; Grattan v. Nat. L. Ins. Co. id., 74.]

§ 835. An attorney or counsellor at law shall not be allowed to
disclose a communication, made by his client to him, or his advice
given thereon, in the course of his professional employment.

[New, as a statutory enactment, but in accordance with the common
lawrule. See Whiting v. Barney, 30 N. Y., 330; Britton v. Lorenz,
45 id., 51; Yates v. Olmsted, 56 id., 632; and numerous other cases.
See, also, the following cases, decided since the passage of this act,
but upon the common law rule. Hedbard v. Haughian, 170 N. Y., 54;
Armstrong v. The People, id., 38; Bacon vy. Frisbie, 15 Hun, 26; and
Sheridan v. Houghton, 16 id., 628.)

§ 836. [Amended, 1877.] The last three sections apply to every
examination of a person as a witness, unless the provisions thereof
are expressly waived by the person confessing, the patient or the
client.

218
CHAP. IX.] EVIDENCE. §§ 837-840.

[New. The case of Johnson v. Johnson, 4 Paige, 460; S.C., on
appeal, 14 Wend., 637, has been construed, by some, to mean that the
sections of the R. 8., revised in §§ 803 and 834, ante, do not apply
where there is a default. See, also, Hunn v. Hunn, 1 N. Y. Sup. Ct.
(T. & C.), 479. This section is designed to prevent such a construc-
tion, or any other which will allow a confidential communication to
be disclosed, except where the person making it expressly waives the
protection of the statute. ]

§ 837. A competent witness shall not be excused from answering
a relevant question, on the ground only that the answer may tend

to establish the fact, that he owes a debt, or is otherwise subject to f

a civil suit. But this provision does not require a witness to give
an answer, which will tend to accuse himself of a crime or mis-
demeanor, or to expose him to a penalty or forfeiture ; nor does it
vary any other rule, respecting the examination of a witness.

(2 R.8., 405, Part 3, ch. 7, tit. 3, § 71 (3 RB. S., 5th ed., 690; 2
Edm., 422).]

§ 838. The testimony of a party, taken at the instance of the
adverse party, orally or by deposition, may be rebutted by other
evidence.

[From Co. Proe., § 393.]

§ 839. The admission of a member of an aggregate corporation,
who is not a party, shall not be received as evidence against the cor-
poration, unless it was made concerning and while engaged in a
transaction, in which he was the authorized agent of the corporation.

[2 R. S, 407, Part 3, ch. 7, tit. 3, § 80 (3B. S., 5th ed., 692; 2
Edm., 424).]

§ 840. [Amended, 1877.] A seal upon an executory instrument,
hereafter executed, is only presumptive evidence of a sufficient con-
sideration, which may be rebutted, as if the instrument was not
sealed.

[This section is a substitute for 2 R. 8., 406, Part 3, ch. 7, tit. 3, §
77 (3 B.S., Sth ed, 691 ; 2 Hdm., 423), which is as follows :

*§ 77. In every action upon a sealed instrument, and where a set-
off is founded upon any sealed instrument, the seal thereof shall only
be presumptive evidence of a sufficient consideration, which may be
rebutted, in the same manner and to the same extent, as if such in-
strument were not sealed ”.

‘It will be seen that the provision quoted allows the presumption of
consideration, afforded by a seal, to be rebutted, only in cases where

219

PART II.

When
witness
not ex-
cused
from testi
ying.

Evidence
of party
may be
rebutted .

Admission
by mem-
ber of
corpora-
tion.

Seal, pre-
sumptive
evidence
of con-
sideration.
§§ 841-842. PRESUMPTIONS; OATHS, ETC. [copz civ. proc.

JUSTICE’S
MANUAL,

Presump-
tion

of death
in certain
cases.

Before
whom
oaths and
alfidavits
may be
taken.

an action is brought upon a sealed instrument, or where a set-off is
founded upon such an instrument. It was held, in Calkins v. Long,
22 Barb., 97, that it does not apply to an action brought by a mort-
gagor, to compel the cancelling of a mortgage made without consider-
ation. There ure many other cases, where a sealed instrument may
be made the foundation of a claim or defence, to which it would not
apply ; and justice seems to require that its policy should be extended.
The only cases, where a seal should be conclusive, are saved by the
word, ‘‘executory ”, in this section, such as releases. ]

§ 841. A person, upon whose life an estate in real property de-
pends, who remains without the United States, or absents himself,
in the State or elsewhere, for seven years together, is presumed to be
dead, in an action or special proceeding, concerning the property, in
which his death comes in question, unless it is afirmatively proved
that he was alive within that time.

[1 R. 8., 749, Part 2, ch. 1, tit. 5,§ 6.(3 R.S., 5th ed. 39; 1 Edm.,
700), amended by substituting the words, ‘“ without the United States,”
for *‘ beyond sea,” as the effect of the latter expression is totally dif-
ferent in this country, from that which obtains where it had its origin.
See McCartee v. Camel, 1 Barb. Ch. R., 455. ;

ARTICLE SECOND.
ADMINISTRATION OF AN OATH OR AFFIRMATION.

§ 842. An oath or affidavit, required or authorized by law; except
an oath to a juror or a witness upon a trial, an oath of office, and
an oath required by law to be taken before a particular officer; may
be taken before a judge, clerk, deputy-clerk, or special deputy-clerk,

‘of a court, a notary public, mayor, justice of the peace, surrogate,

special county judge, special surrogate, county clerk, deputy county
clerk, special deputy county clerk, or commissioner of deeds, within
the district in which the officer is authorized to act; and, when cer-
tified by the officer, to have been taken before him, may be used in
any court, or before any officer or other person.

[2 R.S., 284, Part 3, ch. 8, tit. 2, § 49 (8 R.S, 5th ed., 474; 2
Edm., 294), amended by striking out “any circuit judge, supreme
court commissioner ”, and the clause, authorizing the justices of the
supreme court to appoint commissioners, and by adding judges, clerks
and deputy-clerks of courts not of record, and the officers enumerated
between the word, ‘‘court ”, and the words, “‘ commissioner of deeds ”.
These officers have been authorized, by various statutes, to administer
ouths, except mayors, surrogates’ clerks, deputy county clerks, and (in
sume instances) deputy-clerks of courts of record. L. 1863, ch. 508,

220
CILAP. 1X. | OATHS AND AFFIDAVITS. §§ 843-844.

§ 2 (6 Edm., 169) ; L. 1840, ch. 238, § 1 (3 Edm.. 302): L. 1851, ch.
175, §1 (1 B.S, 5th ed., 388; 4 Edm, 509).]

§843. [Amended, 1877.] Where an officer, person, board, or com-
mittee, has been heretofore, or is hereafter authorized by law, to
take or hear testimony, or to hear or receive an affidavit, or to take
a deposition, in relation to a matter, concerning which he or it has a
duty to perform, the officer or person, or a member of the board or
committee, may administer an oath, for that purpose. Where an
officer, person, board, or committee, to whom or to which application
ismade to do an act in an official capacity, requires information or
proof, to enable him or it to decide upon the propriety of doing the
act, he or it may receive an affidavit for that purpose.

[The first sentence is a general provision, intended to embrace
numerous special provisions, concerning administrative officers, com-
mittees, boards, etc. Thesecond sentence has been taken from 2 R.
S., 552, Part 3, ch. 8, tit. 17%, § 11 (3 R.S., 5th ed., 866; 2 Kdm.,
573).]

§ 844. An oath or affidavit required, or which may be received,
in an action, special proceeding, or other matter, may be taken, with-
out the State, except where it is otherwise specially prescribed by
law, before an officer authorized by the laws of the State, to take
and certify the acknowledgment and proof of deeds, to be recorded
in the State; and, when certified by him to have been taken before
him, and accompanied with the like certificates, as to his official
character and the genuineness of his signature, as are required to en-
titlea deed acknowledged before him to be recorded within the
State, may be used, as if taken and certified in this State, by an ofli-
cer authorized by law to take and certify the same.

[New. By various statutes, nearly every person, authorized to take
- acknowledgments without the State, is authorized to administer oaths.
There are, however, some exceptions; and the two cases present some
discrepancies, as to the manner of certifying the official character of
the officer. It is preferable that any officer, authorized to take
acknowledgments, should be empowered to administer oaths, and that
his acts should be authenticated in the same manner, in both cases.
2R. 8., 396, Part 3, ch. 7, tit. 3, § 25 (3 R.S., 5th ed., 677; 2 Hdm.,
412); L. 1854, ch. 206 (4 Edm., 650); L. 1863, ch. 246, § 3 (6 Edm.,
98); L. 1865, ch. 421 (6 Edm., 482); L. 1870, ch. 208 (7 Edm., 672);
L. 1869, ch. 1383 (7 Edm., 425); L. 1850, ch. 270 (4 Edm., 441); LL.
1858, ch. 259 (4 Edm., 444); L. 1848, ch. 195 (4 Edm., 440) ; L. 1845,
ch. 109 (4 Edm., 437); L. 1829, ch. 222 (4 Edm., 434) ; L. 1867, ch.

221

PART II,

Id ; in
special
cases.

Id.; with-
out the
State.
§§ 845-850. SWEARING A WITNESS. [CODE CIV. PROC.

JUSTICE'S
MANUAL.

General
mode of
swearing.

When
kissing
the
ospels
ispensed
with.

When
affirma-
tion to be
made.

Other
modes of
swearing. j

Swearing
persons

not
Christians.

Court may
examine
witness.

55? (7 Edm., 129); L. 1875, ch. 136. The act, L. 1862, ch. 471 (4
Edm., 647), providing for the administration of oaths to volunteers
in the service of the United States, has been omitted, as temporary.]

§ 845. The usual mode of administering an oath, now practiced,
by the person who swears laying his hand upon and kissing the
gospels, must be observed, where an oath is administered, except as
otherwise specially prescribed in this article.

[2 RK. 8., 407, Part 3, ch. 7, tit. 3, § 82 (3B. S., 5th ed., 692; 2 Edm.,
424).]

§ 846. The oath must be administered in the following form, to a
person who so desires, the laying of the hand upon and kissing the
gospels being omitted: ‘You do swear, in the presence of the
ever-living God.” While so swearing, he may or may not hold up
his hand, at his option.

[Id., § 83.]

§ 847. A solemn declaration or affirmation, in the following
form, must be administered to a person who declares that he has
conscientious scruples against taking an oath, or swearing in any
form: “ You do solemnly, sincerely, and truly, declare and affirm.”

[Id., § 84.]

§ 848. [Amended, 1877.] If the court or officer, before which or
whom a person is offered as a witness, is satisfied, that any peculiar
mode of swearing, in lien of, or in addition to laying the hand upon
and kissing the gospels, is, in his opinion, more solemn and obliga-
tory, the court or officer may, in its or his discretion, adopt that.

mode of swearing the witness.
[Id., § 85.]

§ 849. A person believing in a religion, other than the Christian,
may be sworn according to the peculiar ceremonies, if any, of his
religion, instead of as prescribed in section 845 or section S46 of
this act.

[Id., § 86.]

§ 850. The court or officer may examine an infant, or a person
apparently of weak intellect, produced before it or him, as a witness,
222
CHAP. IX.] WITNESSES’ PRIVILEGES, $§ 851-861.

to ascertain his capacity and the extent of his knowledge; and may
inquire of a person, produced as a witness, what peculiar ceremonies
in swearing he deems most obligatory.

[Id., § 89, amended so as to disconnect it from id., §$ 87 and 88,
which relate to the belief of a witness in a Supreme Being, and have
been omitted, as having been rendered obsolete by article 1, § 3, of the
constitution of 1846. Stanbro v. Hopkins, 28 Barb., 265. This pro-
vision has been retained, because its omission might be regarded as an
argument against the right of the court, to make the inquiries therein
referred to. |

§ 851. A person swearing, affirming, or declaring, in any form,
where an oath is authorized by law, is lawfully sworn, and is guilty
of perjury, in a case where he would be guilty of the same crime, if
he had sworn by laying his hand upon and kissing the gospels.

[Id., the latter clause of § 90, extended so as to make its provisions
more comprehensive, and to obviate questions which may arise, either
in the action, or upon an indictment for perjury, whether the witness
was duly sworn, if the directions of the statute have not been strictly
followed ; as, for instance, where a book, not containing the gospels,
was used. ]

TITLE IL.

Compelling the attendance and testimony of & witness.

§ 860. A person duly and in good faith subpcenaed or ordered
to attend, for the purpose of being examined, in a case where his
attendance may lawfully be enforced by attachment, or by commit-
ment, is privileged from arrest in a civil action or special proceed-
ing, while going to, remaining at, and returning from, the place
where he is required to attend.

([Id., § 51. <A foreign witness thus attending cannot be served with
asummons. Personv. Grier, 66 N. Y., 124.]

§ 861. The court, from which a subpcena, served in good faith,
was issued, or by which an order was made, requiring a person to
attend, for the purpose of being examined ; or a judge thereof, upon
proof, by affidavit, of the facts, must make az order, directing the
discharge of a witness or other person, from an arrest made in viola-
tion of the last section.

[Id., § 52, amended by extending the power to a judge, whether the
court is or is not in session. ]

223

PART II.

Swearing
falsely in ‘
any form
perjury.

Witness
exempt
from
arrest.

When to
be dis-
charged
from
arrest.
8§ 862-865. WITNESSES’ PRIVILEGES. [copz crv. PRoc.

JUSTICE'S
MANUAL.

By whom

witness

charged.

Arrest,
when
void ;
penalty.

Sheriff not
to be
liable,
unless
affidavit is
made,

Applica-
tion of
foregoing
provisions
to judg-
ments.

§ 862. A justice of the supreme court, in any part of the State,
or a county judge, or a judge of a superior city court, within his
district, has the like authority as a judge of the court, to make an
order for a discharge, in a case specified in the last section. Upon
satisfactory proof, by affidavit, of the facts, he must also make an
order, directing the discharge of a person arrested, in violation of
section eight hundred and sixty of this act, where a subpcena, served
in good faith upon the person arrested, was issued as prescribed in
section eight hundred and fifty-four of this act.

[The first sentence has been taken from id., § 53. The second is
new. |

§ 863. An arrest, made contrary to the foregoing provisions of
this title, is absolutely void, and is a contempt of the court, if any,
from which the subpoena was issued, or by which the witness was
directed to attend. An action may be maintained, by the person
arrested, against the officer or other person making such + arrest, in
which the plaintiff is entitled to recover treble damages. A similar
action may also be maintained, in a like case, by the party in whose
behalf the witness was subpcenaed, or the order procured, to recover
the damages sustained by him, in consequence of the arrest.

[Id., § 54.]

§ 864. [Amended, 1877.] But a sheriff or other officer, or per-
son, is not so liable, unless the person claiming an exemption from
arrest, makes, if required by the sheriff or officer, an affidavit, to the
effect that he was legally subpcenaed or ordered to attend, and that
he was not so subpeenaed or ordered by his own procurement, with
the intent of avoiding arrest. In his affidavit, he must specify the
court or officer, the place of attendance, and the cause in which he
was so subpoenaed or ordered. The affidavit may be taken before
the officer arresting him, and exonerates the officer from liability for
not making the arrest.

[Id., § 55.]

§ 865. The foregoing provisions of this title, relating to a per-
son required, by an order of a court, to attend, apply, where such an
attendance is required by the terms of a judgment.

 

+ The word “an” omitted by an error in engrossing.

224
CHAP, IX. ] PRODUCTION OF DOCUMENTS. §§ 866-867."

[New. Deemed useful in various cases where a party 1s required, nee
by the provisions of a judgment, to attend for the purpose of account-
ing, etc.]

§ 866. The record of a conveyance of real property, or any other Records

record, or document, whereof a transcript duly certified may by law jemoved

a . . of sub-
be read in evidence, shall not be removed, by virtue of a subpcoena pena,

duces tecum, from the office in which it is kept ; except temporarily,
by the clerk having it in custody, to a term or sitting of the court
of which he is clerk ; or by the officer, having it in custody, to a term
or sitting of a court, or a trial before a referee, held in the city or
town where his office is situated. Where it is required at any other
place, it may be removed, by order of the supreme court, a superior
city court, or a county court, made in court, and entered in the min-
utes; specifying that the production of the origjnal, instead of a
transcript, is necessary.

[L. 1838, ch. 129 (1 RB. S., 5th ed., 868; 4 Edm., 549), amended by
extending the provision to the trial of a reference, and by confining
the power to make the order, to the courts enumerated in the text, in
place of “some court of record”, an expression which is now very
broad. ]

§ 867. [Amended, 1877, 1879, 1880.] A person shall not be com. Produc-

tion, ete.,

pelled to produce, upon a trial or hearing, a book of account, other- of,000K of

wise than by an order requiring him to produce it, or a subpoena
duces tecum. At any time after service of such a subpcena or order,
the witness may obtain, upon such a notice as the judge, referee, or
other officer prescribes, an order relieving him wholly or partly from
the obligations imposed upon him by the subpcena or the order for
production, upon such terms as justice requires touching the inspec-
tion of the book or any portion thereof, or taking a copy thereof or
extracts therefrom, or otherwise. An order may be made, as pre-
scribed in this section, by a judge of the court, or, in a special pro-
ceeding pending out of court before an officer, by the officer, or, in
either case, by a referee duly appointed in the cause, and authorized
to hear testimony. A justice of the peace, or other judge of a court
not of record, may make such an order in an action brought in hir
court, at any time after the commencement thereof.

[This section, which is new, has been prepared in order to remedy
an evil which has become great, and seems to be growing. It is unjust,

[29] 225
§§ 868-869. PRODUCTION OF DOCUMENTS. [copz viv. Proc.
MANUAL except in cases of the most urgent necessity, to require a party, at the
mere pleasure of his adversary, and still more unjust to require an in-
different witness, upon the demand of a litigant, to produce his pri-
vate account books, often to his great inconvenience, and the derange-
ment of his business. Such production is frequently required by a
subpoena duces tecum, couched in language so general that its man-
dates can be obeyed, only by bringing into court large numbers, some-
times a wagon load, of books, but few of which can possibly be of any
service. It is also believed that a subpona duces tecum is sometimes
used by a party, for the mere purpose of annoying his adversary. The
provisions, respecting the discovery of books and papers, are ample,
to enable a party to ascertain what books are needed, and to show the
necessity of their production, upon an application under this section. ]

Books, § 868. The production, upon a trial, of a book or paper, belong-
C., 0:
forpora- ing to or under the control of a corporation, may be compelled, in

Produced. like manner as if it was in the hands, or under the control, of a

natural person. For that purpose, a subpcena duces tecum, or an
order, made as prescribed in the last section, as the case requires,
must be directed to the president, or other head of the corporation,
or to the officer thereof, in whose custody the book or paper is.

[New. It is generally understood that the books, etc., of a corpora-
tion cannot be reached by a subpcena duces tecum, whether the corpo-
ration is or is not a party. Bank of Utica v. Hillard, 5 Cow., 153; S.
C., id. 419; La Farge v. La Farge Ins. Co.,14 How. Pr., 26. No solid
reason is perceived for the preservation of such an inconvenient and
anomalous rule, which rests upon a technicality. |

When per- § 869. In a case specified in the last section, or where a subpena
sona

attend’ duces tecum, or an order, made as prescribed in section 866 or sec-

tysub _ tion 867 of this act, requires a public officer to attend, and bring a

duces, book or paper under his control, the subpcena or order is deemed to
be sufficiently obeyed, if the book or paper is produced by a subor-
dinate officer or employee of the corporation, or in the public office,
who possesses the requisite knowledge to identify it, and to testify
respecting the purposes for which it is used. If the personal attend-
ance of a particular officer of the corporation or public officer is
required, a subpoena, without a duces tecum clause, must also be

served upon him.
[New. See the note to the last section. ]
226
OHAP. 1x.] DEPOSITIONS WITHOUT THE STATE. §§

TITLE III.

Depositions.

ARTICLE SECOND.

DEPOSITIONS, TAKEN WITHOUT THE STATE, FOR USE WITHIN THE STATE.

§ 900.* Upon the examination of a witness, without written inter-
rogatories, by virtue of a commission, or of an order to take deposi-
tions, the commissioner, or the person before whom the deposition
is taken, must take down, or cause to be taken down, as prescribed
in the next section, the substance of the witness’s testimony ; unless
he is directed, in the commission or the order, or required by the
person appearing for either party, to insert in the deposition any or
all of the questions or answers, word for word. Unless the com-
mission or order otherwise directs, the person, appearing for either
party, may ask any question, which he deems proper, and the wit-
ness’s answer must be taken accordingly, the objections thereto being
reserved, without being specified at the time of examination, A
copy of this section must be annexed to each commission to take
testimony without written interrogatories, and to each certified copy
of an order to take a deposition.(*)

[New. ]

§ 901.* The person, to whom a commission is directed, or before
whom a deposition is taken, unless otherwise expressly directed in

the commission, or in the order for taking the depositions, must exe-

cute the commission, or the order, as follows:

1. He must publicly administer, to each witness examined, an
oath or affirmation to testify the truth, the whole truth, and nothing
but the truth, as to the matters respecting which the witness is to be
examined.

2. He must reduce the examination of each witness to writing, or
cause it to be reduced to writing, by a disinterested person. After
it has been carefully read, to or by the witness, it must be subscribed

by the witness.
227

 

(a) Applied to justices’ courts by § 2981. page 58.

900-901,

PART II.

How de-
positions
taken.

Commise
sion or
order to
take
deposi-
tions 5
how
executed
and re-
turned.
§ 902.

JUSTICE’S
MANUAL.

Certificate
of execu-4
tion.

DEPOSITIONS WITHOUT THE STATE. [cops crv. Proc.

3. If an exhibit is produced and proved, the exhibit, or, if the
witness, or other person having it in his custody, does not surrender
it, a copy thereof, must be annexed to the deposition to which it re-
lates, subscribed by the witness proving it, and numbered or other-
wise identified, in writing thereupon, by the commissioner, or person
taking the deposition, who must subscribe his name thereto.

4. The commissioner, or person taking the deposition, must sub-
scribe his name to each half sheet of the deposition ; he must annex
all the depositions and exhibits to the commission, or to a certified
copy of the order for taking the deposition, with the certificate
specified in the next section; and he must close them up under his
seal, and address the packet to the clerk of the court, at his official
residence.

5. If there is a direction, on the commission, or in the order, to
return the same through the post-office, he must immediately deposit
the packet, so addressed, in the post-office, and pay the postage
thereon.

6. If there is a direction, on the commission, or in the order, to
return the same by an agent of the party, at whose instance it was
issued or granted, the packet so addressed must be delivered to the
agent.

7. Where a commission is directed to two or more persons, one
or more of them may execute it, as prescribed in this and the next
section. .

A copy of this and of the next section must be annexed to each
commission, or order to take depositions, authorized by this article.(*)

[From § 16 of the R. 8., and §§ 6, 7, and 8 of the act of 1853.]

§ 902.* The commissioner or other person, before whom one or
more depositions are taken, must subscribe, and annex to each depo-
sition, a certificate, substantially in the following form, the blanks
being properly filled up:

“State” (or “territory ”) “ of ” ;

“ County ” (or “ parish”) “ of 2 } rene

eal; , do certify that , the witness, personally appeared
before me on the day of , at o’clock in the
noon, at the , in the state” (or “territory ”) “ of

228

 

(a) Applied to justices’ courts by § 2984, page 59.
OHAP. Ix.] DEPOSITIONS FOR USE ELSEWHERE. §§ 903-918.

and after being sworn” (or “ affirmed,” as the case may be), “ to tes-
tify the truth, the whole truth, and nothing but the truth, did depose
to the matters contained in the foregoing deposition, and did, in my
presence, subscribe the same, and indorse the exhibits annexed thereto.
And I further certify that I have subscribed my name to each half-
sheet thereof, and to each exhibit. And I further certify that
appeared in behalf of the , and that appeared in behalf
of the »)
[From § 7 of the act of 1853.]

§ 903.* The certificate, specified in the last section, is a sufficient
return to a commission. (*)

[New ; prepared for the purpose of abrogating the technical rule
that a return on the back of the commission is also required. ]

§ 911. A deposition, taken and returned as prescribed in this
article, or an exemplified copy thereof, if the original is filed in
another county, may, unless it is suppressed as prescribed in the last
section, be read in evidence by either party. It has the same effect,
and no other, as the oral testimony of the witness would have; and
an objection to the competency or credibility of the witness, or to
the relevancy, or substantial competency, of a question put to him,
or of an answer given by him, may be made, as if the witness was
then personally examined, and without being noted upon the depo-
sition.(*)

[Section 13 of the act of 1853, and § 23 of the R. 8.; with amend-
ments, designed to make the section correspond to changes made in

previous sections. The first and last clauses of the second sentence
are new. |

ARTICLE THIRD.

DEPOSITIONS, TAKEN WITHIN THE STATE, FOR USE WITHOUT THE STATE.

§ 918. Where proof is made, by affidavit or otherwise, to the
satisfaction of a justice of the peace:
1. That a civil action, suit, or special proceeding is pending in a
court of another state, or of a territory, or of the United States.
2. That a person, residing or sojourning in the town or city, in
which the justice resides, is a material witness for either party.
229

 

(a) Applied to justices’ courts by § 2986, page 59.

PART II,

Certificate,
a sufficient
return.

Deposi-
tion, etc.,
evidence.

Justice of
the peace
may sub-

poena wit-
ness.
§§ 919-921. DOCUMENTARY EVIDENCE. [cons crv. PRoc.

JUSTICE'S
MANUAL.

Taking
and return
of deposi-
tion.

Penalty
for not
appearing.

Certain
official
certifi-
cates,
evidence.

3. That, according to the practice of the court, in which the
action, suit, or special proceeding is pending, the deposition of a
witness, taken as prescribed in this section, and the next section, will
be received on the trial or hearing.

The justice must issue a subpoena, commanding the witness to
appear before him, at a specified time, and at a place within the
town or city, in which the witness resides or sojourns, to testify in
the action, suit or special proceeding.

[L. 1831, ch. 191, § 1 (8 R. §., 5th ed., 680; 4 Edm., 637), with
like amendments. The reference, in sub. 1, to territorial courts, and
courts of the United States, is new. ]

§ 919. The officer, before whom a witness appears, in a case speci-
fied in this article, must take down his testimony in writing; and
must certify and transmit it to the court, in which the action, suit or
special proceeding is pending, as the practice of that court requires.

[Id., § 2, amended so as to apply to all cases under this article.]

§ 920. A person, who fails to appear, at the time and place speci-
fied in a subpcena, issued as prescribed in this article, and duly
served upon him; or to testify ; or to.subscribe his deposition, when
correctly taken down ; is liable to the penalties, which would be in-
curred in a like case, if he was subpcenaed to attend the trial of an
action in a justice’s court; and, for that purpose, the officer, before
whom he is required to appear, possesses all the powers of a justice
of the peace upon a trial.

[Id., § 3.]

TITLE IV.

Documentary evidence.

ARTICLE 1, Documentary evidence, as a substitute for oral testimony.
2. Proof of a document, executed or remaining within the State.
3. Proof of a document, remaining ina court or public office of the
United States, or executed or remaining without the State.

ARTICLE FIRST.
DocuMENTARY EVIDENCE, AS A SUBSTITUTE FOR ORAL TESTIMONY.
§ 921. Where the officer, to whom the legal custody of a paper
belongs, certifies, under his hand and official seal, that he has made
230
CHAP. IX. | DOCUMENTARY EVIDENCE. §§

diligent examination, in his office, for the paper, and that it cannot
be found, the certificate is presumptive evidence of the facts so
certified, as if the officer personally testified to the same.

[2 R.8., 552, Part 3, ch. 8, tit. 17, §12 (3 R.8., 5th ed. 866; 2
Edm., 573). As to lost documents, see 68 N. Y., 529.]

§ 922. Where a public officer is required or authorized, oy special
provision of law, to make a certificate or an affidavit, touching
an act performed by him, or to a fact ascertained by him, in the
course of his official duty ; and to file or deposit it in a public office
of the State; the certificate or affidavit, so filed or deposited, or an
exemplified copy thereof, is presumptive evidence of the facts therein
alleged, except where the effect thereof is declared or regulated, by
special provision of law.

[This section is intended to supply the place of numerous provi-
sions of law, making certificates of officers evidence, in particular
cases. No reason is apparent why, in all cases, such certificates should
not be presumptive evidence of the facts therein stated.]

§ 923. [Amended, 1877.] The certificate of a notary public of
the State, under his hand and seal of office, of the presentment by
him, for acceptance or payment, or of the protest, for non-acceptance
or non-payment, of a promissory note or bill of exchange, or of the
service of notice thereof on a party to the note or bill; specifying
the mode of giving the notice, the reputed place of residence of the
party to whom it was given, and the post-oftice nearest thereto; is
presumptive evidence of the facts certified, unless the party, against
whom it is offered, has served upon the adverse party, with his plead-
ing, or within ten days after joinder of an issue of fact, an original
affidavit, to the effect, that he has not received notice of non-accept-
ance, or of non-payment of the note or bill. A verified answer is
not sufficient as an affidavit, within the meaning of this section.

[L. 1833, ch. 271, §8 (3 R.S., 5th ed., 474; 4 Edm., 619); amended
by inserting, in the first line, the words, “of the State,” in accord-
ance with Bank of Rochester v. Gray, 2 Hill, 227, and by substituting,
at the end of the first sentence, the clause beginning “ unless the
party, against whom,” etc., in place of the last clause of the original.
The final sentence is, also, new. The design of the two latter amend-
ments is to regulate, with more precision, the provision relative to an
affidavit of non-receipt of notice, and to extend it, so as to meet the
case where a note or bill is interposed as a counterclaim. It was held,
in Union Bank of Rochester v. Gregory, 46 Barb., 98, that, under the

231

922-923.

PART II.

Certificate,
etc., on
file,
evidence.

Notary’s
certificate,
evidence.
$§ 924-926. DOCUMENTARY EVIDENCE. [cope crv. PRoc.

JUSTICE'S
MANUAL.

Notary’s
protest
and mem-
orandum ;
when
evidence.

Proof of
present-
ment, etc.,
of foreign
bills.

Affidavit
of printer,
etc., evi-
dence,

original provision, the notary’s certificate is evidence, where the de-
fendant has received any notice of presentment and non-payment,
although such notice may not have been received until a month after
the paper became due. The query, put in that case, whether the pro-
vision will be complied with, by an allegation in the answer, that the
notice was not received, was answered in the negative, in Gawtry v.
Doane, 51 N. Y., 84. The concluding sentence of this section will
prevent the possibility of the question arising again. ] .

§ 924. In case of the death or insanity of a notary public of the
State, or of his absence or removal, so that his personal attend-
ance, or his testimony, cannot be procured, in any mode prescribed
by law, his original protest, under his hand and official seal, the genu-
ineness thereof being first duly proved, is presumptive evidence of
a demand of acceptance, or of payment, therein stated; and a note
or memorandum, personally made or signed by him, at the foot of a
protest, or in a regular register of official acts, kept by him, is pre-
sumptive evidence that a notice of non-acceptance or non-payment
was sent or delivered, at the time, and in the manner, stated in the
note or memorandum.

[2 R. 8., 283, 284, Part 3, ch. 3, tit. 2, §§ 46 and 47 (3 R.S., 5th
ed., 474; 2 Hdm., 294), consolidated. ]

§ 925. Proof of the presentment, for acceptance or payment
of a promissory note or bill of exchange, payable in another state,
or in a territory, or foreign country, or of a protest of the note or
bill, for non-acceptance or non-payment, or of the service of notice
thereof, on a party to the note or bill, may be made, in any manner
authorized by the laws of the state, territory, or country, where it
was payable.

[L. 1865, ch. 309, second and third sentences of § 1 (6 Edm., 467),
amended so as to be more perspicuous. |

§ 926. [Amended, 1877.] The affidavit of the printer or pub-

. lisher of a newspaper, published within the State, or of his foreman,

or principal clerk, showing the publication of a notice or other

advertisement, authorized or required, by a law of the State, to be

published in that newspaper, annexed to a printed copy of the notice

or other advertisement, may be read in evidence; and is presumptive

evidence of the publication, and, also, of the matters stated therein,

showing that the deponent is authorized to make the affidavit. But
232 .
CHAP. 1x,] DOCUMENTARY EVIDENCE. BS 927-929,

this section does not apply to a case, where the affidavit is required
by law to be filed, unless it has been duly filed; or to a case, where
the mode of proving a publication is otherwise specially prescribed
by law.

[L. 1835, ch. 159, § 1 (3 R. S., 5th ed., 686; 4 Edm., 638), amended
by adding the concluding sentence, the clause including the pub-
lisher, and the clause requiring a copy of the notice, etc., to be annexed
to the affidavit. By 2 R.8., 403, Part 3, ch. 7, tit. 3, §§ 56 and 57 (3
R.8., 5th ed., 686; 2 Edm., 419), it is provided that publication of
a notice.of application to a court, etc., and of notice of a sale of real
property, may be proved by the affidavit of the printer, or his foreman
or principal clerk, if the affidavit was filed within six months after
the last publication day. The act of 1835 was apparently intended to
supersede the necessity of filing the affidavit, in ordinary cases, but
not to apply to the particular cases, where the affidavit is expressly
required to be filed ; and a clause has been, accordingly, added, saving
such cases. So much of section 58 of the R. 8., as permits certified
copies of the affidavits on file to be read, is covered by § 933, post. |

§ 927. Where it is necessary, upon the trial of an action, to
prove the service of a notice, an affidavit, showing the service to
have been made by the person making the affidavit, is presumptive
evidence of the service, upon first proving that he is dead or insane,
or that his personal attendance cannot be compelled, with due
diligence.

[L. 1858, ch. 244, §1 (3 R.S., 5th ed., 683 ; 4 Edm., 645), amended
by adding the last clause. ]

§ 928. [Amended, 1879.] An original certificate of a marriage,
within the State, made by the minister or magistrate by whom it was
solemnized; the original entry thereof, made, pursuant to law, in
the office of the clerk of a city or a town, within the State; or a
copy of the certificate, or of the entry, duly certified, is presumptive
evidence of the marriage.

(2B. S., 141, Part 2, ch. 8, tit 1, 817 (3 B.S, 5th ed., 229; 2
Edm., 146), with slight amendments. ]

§ 929. Where a party wishes to prove an act or transaction of a
foreign corporation, the book or books of the corporation may be
used for that purpose, as presumptive evidence, whether any or all
of the parties are or are not members of the corporation.

[This and the next two sections are substitutes for L. 1863,
ch. 206 (6 Edm., 89), as amended by L. 1869, ch. 589 (7% Edm.,

[30] 233

PART II.

Id.; of
service of
notice

Marriage
certificate,
evidence.

Book of
foreign
corpora-
tion;
when
evidence.
88 930-932, DOCUMENTARY EVIDENCE. [cops crv. proc.

JUSTICE’S

MANUAL,

Whena
copy
thereof is
evidence.

How copy
to b

e
verified.

Statutes,
etc., how
proved.

460). The act of 1869 is very obscure and tautologous. The
original has been completely reconstructed, care being taken to pre-
serve its essential provisions. This section embraces part of § 1 of
the act. The awkward expression, ‘“‘the book or books”, has been
preserved, here, as it will probably be construed as not having the
same meanings as “a book” In the other sections, the singular
number is used. |

§ 930. If an original book is not produced. at the trial, as pre-
scribed in the last section, a copy thereof, or of an entry therein,
verified as prescribed in the next section, may be used, with like
effect as the original book; provided that the party, intending to
use the copy, gives the adverse party at least ten days’ notice of his
intention, specifying briefly the nature of the evidence proposed to
be given. But this and the next section do not apply, where the
foreign corporation is a party to the action, and seeks to prove its
own act or transaction, in its own behalf.

[Id., parts of §§ 1 and 2.]

§ 931. The copy must be verified by the deposition, taken as
prescribed by law, or the oral testimony, taken at the trial, of the
person who made it, or of a person who has examined and compared
it with the original book, or the entry therein. The witness must
testify that the copy produced is correct; that he made it, or com-
pared it with the original ; and that he then knew that the original
book so copied, or containing the entry, was the book of the cor-
poration ; or that it was then acknowledged to him to be such, by an
officer or receiver of the corporation, or a person having the custody
thereof, naming the person who made the acknowledgment ; and he
must specify where, and in whose custody, the original was then
kept.

[Id., part of § 1.]

ARTICLE SECOND.

PrRooF OF A DocuMENT, EXECUTED OR REMAINING WITHIN THE STATE.

§ 932. A statute or joint resolution, passed by the legislature
of the State, may be read in evidence from a newspaper, designated,
as prescribed by law, to publish the same, until six months after the

234
CHAP. IX. | DOCUMENTARY EVIDENCE.

close of the session at which it was passed; and, at any time, from
a volume printed under the direction of the secretary of State.

[1 R.S., 184, Part 1, ch. 8, tit. 7, §§ 8 and 12 (1 Edm., 184), con-
solidated, and amended in conformity to subsequent statutes, and by
inserting “six months”, in place of ‘‘three months”. It often occurs
that the printed volumes of the statutes are not distributed, until
after three months from the expiration of the session. ]

§ 933. [Amended, 1879.] A copy of a paper filed, kept, entered,
or recorded, pursuant to law, in a public office of the State, the
officer having charge of which has, pursuant to law, an official seal ;
or with the clerk of a court of the State; or with the clerk or sec-
retary of either house of the legislature, or of any other public body
or public board, created by authority of a law of the State, and hay-
ing, pursuant to law, a seal; or a transcript from a record, kept,
pursuant to law, in such a public office, or by such a clerk or secretary,
is evidence, as if the original was produced. But to entitle it to be
used in evidence, it must be certified by the clerk of the court,
under his hand and the seal of the court; or by the officer having
the custody of the original, or his deputy or clerk, appointed pur-
suant to law, under his official seal and the hand of the person
certifying; or by the presiding officer, secretary, or clerk of the
public body or board, appointed pursuant to law, under his hand,
and, except where it is certified by the clerk or secretary of either
house of the legislature, under the official seal of the body or board.(*)

[New; designed to embrace, in a section of general application, the
existing provisions of law, relating to copies of papers filed in the
offices of county clerks, the secretary of State, comptroller, State
engineer and surveyor, auditor of the canal department, regents of
the university, clerks of the senate and assembly, boards of supervisors,
surrogates, etc., etc. 1 R. 8., 166, Part 1, ch. 8, tit. 2,§4 (1 RS,
5th ed., 472; 1 Hdm., 166); 1 R. S., 187, Part 1, ch. 8, tit. 8, § 17 (1
B.S., 5th ed, 497; i Edm., 187); 1 B.S, 377, Part, ch. 12, tit. 2
865 (1 R.S., 5th’ ed., 868; 1 Edm, 350); L. 1833, ch. 56, §5 (3
Edm., 27); L. 183%, ch. 140, § 1 (3 R. S., 5th ed, 689; 3 Edm., 54);
L. 1846, ch. 182, §1 (3 RB. S., 5th ed., 56; 4 Edm., 438), as amended
by L. 1869, ch. 748 (7 Edm., 472); L. 1848, ch. 162, §5 (1 B.S., 5th
ed., 519; 3 Edm., 168) ; L. 1849, ch. 180, § 3 (4 Edm., 644); L. 1854,
ch. 282, § 14 (2 R.S., 5th ed., 697; 3 Edm, 645) ; L. 1855, ch. 249,
§2 (1 BRS, 5th ed, 854; 3 Edm., 337); L. 1859, ch. 321, § 6 (3

Edm., 64); L. 1863, ch. 362, §9(6 Edm., 127) ; L. 1870, ch. 60, § 1
(7 Edm., 590) ; and many others.]

235

 

(a) L. 1877, ch. 819, makes copies of the records in the offices of the State comptroller and
treasurer evidence “ when certified by the officer in whose office they are kept.’’ Proba-
bly therefore, the certificates of those officers are evidence without being under seal.

§ 933.

PART II.

Copies of
records
and papers
in certain
offices,
presump-
tive evi-
dence.
§§ 934-938. DOCUMENTARY EVIDENCE. [copz ctv. Proc.

JUSTICE'S
MANUAL.

Id.; of
ap Jers
ted with

town

clerk.

Convey- |
ance,
when
acknowl-
edged, or
record,
or tran-
script of
record,
evidence.

Such evi-
dence may
be re-
butted

What in-
struments
may be
acknowl-
edged.

Justice’s
docket
and tran-
script
evidence
before
him.

§ 934. A copy of a paper filed, pursuant to law, in the office of a
town clerk, or a transcript from a record kept therein, pursuant to
law, certified by the town clerk, is evidence, with like effect as the
original.

[1 R.S., 350, Part 1, ch. 11, tit. 4, § 16 (1 B.S., 5th ed., 830; 1
Edm., 323). See 28 N. Y., 252.]

§ 935. A conveyance, acknowledged or proved, and certified, in
the manner prescribed by law, to entitle it to be recorded in the
county where it is offered, is evidence, without further proof thereof.
Except as otherwise specially prescribed by law, the record of a con-
veyance, duly recorded, within the State, or a transcript thereof,
duly certified, is evidence, with like effect as the original conveyance.

(1 R.8., 759, Part 2, ch. 3, § 16, and first sentence of § 17 (3 RB. S.,
5th ed., 54; 1 Edm., 710); amended by inserting the exception, at the
beginning of the second sentence, to avoid any possible clashing with
provisions like § 33 of the same title (1 Edm., 713). The original pro-
vision was construed, in the court of appeals, in Clark v. Clark, 47 N.
Y., 664.]

§ 936. The certificate of the acknowledgment, or of the proof of a
conveyance, or the record, or the transcript of the record, of such a
conveyance, is not conclusive; and it may be rebutted, and the effect
thereof may be contested, by a party affected thereby. If it appears
that the proof was taken upon the oath of an interested or incompe-
tent witness, the conveyance, or the record or transcript thereof, shall
not be received in evidence, until its execution is established by other
competent proof.

[Id., remainder of § 17.]

§ 937. Any instrument, except a promissory note, a bill of ex-
change, or a last will, may be acknowledged, or proved, and certified,
in the manner prescribed by law for taking and certifying the
acknowledgment or proof of a conveyance of real property; and
thereupon it is evidence, as if it was a conveyance of real property.

[L. 1833, ch. 271, § 9 (3 B.S, 5th ed., 690; 4 Edm., 620).]

§ 938. The docket-book of a justice of the peace, within the State,
or a transcript thereof, certified by him, is evidence before him, of

any matter required by law to be entered by him therein.
236
CHAP. IXx.] DOCUMENTARY EVIDENCE. 8§

- p 5 a Part 3, ch. 2, tit. 4, § 245 (3 R.S., 5th ed., 457; 2
m., ‘

§ 989. A transcript from the docket-book of a justice of the peace, 7
within the State, subscribed by him, and authenticated, by a certifi-
cate of the clerk of the county in which the justice resides, under
his hand and official seal, to the effect, that the person, subscribing
the transcript, was, at the date of the judgment therein mentioned,
a justice of the peace of that county; and that the clerk is acquainted
with his handwriting, and verily believes that the signature to the
transcript is genuine; is evidence of any matter stated in the trans-
cript, which is required by law to be entered by the justice in his
docket-book.

[Id., §§ 246 and 247, consolidated, and amended by adding the clause
requiring the clerk to certify that he is acquainted with the handwrit-
ing, etc., and the final clause, beginning with the words, ‘‘ which is
required ”, ”*, See Dorr y. City of Troy, 19 Hun, 223.]

§ 940. [Amended, 1877.] The proceedings in an action brought,
or a special proceeding instituted, before a justice of the peace, within
the State, may also be proved by the oath of the justice. In case of
his death or absence, they may be proved by the original minutes of
the proceedings, kept by him, pursuant to law, accompanied with
proof of his handwriting; or by a copy of the minutes, sworn to, by
a competent witness, as having been compared with the original
entries, with proof that those entries were in the handwriting of the
justice.

[Id., § 248. See Dorr v. City of Troy, 19 Hun, 223.]

§ 941. [Amended, 1877.] An act, ordinance, resolution, by-law,
rule or proceeding of the common council of a city, or of the board
of trustees of an incorporated village, or of a board of supervisors,
within the State, may be read in evidence, either from a copy thereof,
certified by the city clerk, village clerk, clerk of the common council,
or clerk of the board of supervisors; or from a volume printed by
authority of the common council of the city, or the board of trustees
of the village, or the board of supervisors.

[L. 1832, ch. 158, §§ 1 and 2 (3 R.S., 5th ed., 689; 4 Edm., 638); L.

1851, ch. 400, § 7; L. 1870, ch. 291, tit. 8, § 16, p. 701 (7 Edm., 704);
237

939-941,

“PART I.

Transcript
from
justice’s
docket,
evidence
generally.

Other
proof of
proceed-
ings before
justice.

Ordi-
nances,
etc., of
cities,
villages,
etc.
§ 942.

JUSTICES

MANUAL.

DOCUMENTARY EVIDENCE. [cops ctv. Proc.

and many other acts, relating to proof of ordinances, etc., of different
cities. ](*)

ARTICLE THIRD.

Proor or A DOCUMENT, REMAINING IN A COURT OR PUBLIC OFFICE OF THE
UNITED STATES, OR EXECUTED OR REMAINING WITHOUT THE STATE.

PRELIMINARY Notz.—The following are the statutes of the United
States, relating to proof of records, etc., in another State, passed in pur-
suance of section 1 of article 5 of the constitution of the United
States :

“Src. 905. The acts of the legislature of any State or Territory, or of any country
subject to the jurisdiction of the United States, shall be authenticated by having
the seals of such State, Territory, or country affixed thereto. The records and
judicial proceedings of the courts of any State or Territory, or of any such country,
shall be proved or admitted in any other court within the United States, by the
attestation of the clerk,and the seal of the court annexed,if there be a seal, to-
gether with a certificate of the judge, chief justice, or presiding magistrate, that
the said attestation isin due form, And the said records and judicial proceedings,
so authenticated, shall have such faith and credit given to them in every court
within the United States as they have by law or usage in the courts of the State
from which they are taken.

§ 906. All records and exemplifications of books, which may be kept in any
public office of any State or Territory, or of any country subject to the jurisdic-
tion of the United States, not appertaining to a court, shall be proved or admitted
in any court or office in any other State or Territory, or in any such country, by
the attestation of the keeper of the said records or books, and the seal of his
office annexed, if there bea seal, together with a certificate of the presiding jus-
tice of the court of the county, parish, or district in which such office may be
kept, or of the governor, or secretary of State, the chancellor or keeper of the
great seal, of the State, or Territory, or country, that the said attestation is in due
form, and by the proper officers. If the said certificate is given by the presiding
justice of a court, it shall be further authenticated by the clerk or prothonotary
of the said court, who shall certify, under his hand and the seal of his office, that
the said presiding justice is duly commissioned and qualified; or, if given by
such governor, secretary, chancellor, or keeper of the great seal, it shall be under
the great seal of the State, Territory, or country aforesaid in which it is made.
And the said records and exemplifications, so authenticated, shall have such faith
and credit given to them in every court and office within the United States as they
have by law or usage in the courts or offices of the State, Territory, or country,
as aforesaid, from which they are taken.

§ 907. It shall be lawful for any keeper or person having the custody of laws,
judgments, orders, decrees, journals, correspondence, or other public documents
of any foreign government or its agents, relating to the title to lands claimed by
or under the United States, on the application of the head of one of the depart-
ments, the solicitor of the treasury, or the commissioner of the general land office, to
authenticate copies thereof under his hand and seal, and to certify them to be
gorrect and true copies of such laws, judgments, orders, decrees, journals, corre-

 

(a) See L, 1878, ch. 219, as amended by L. 1879, ch. 211, whsch was apparently intended as an
amendment to this section.

238
CHAP. IX. | DOCUMENTARY EVIDENCE. §§ 942-944,
spondence, or other public documents, respectively; and when such copies are cer- penne
tified by an American minister or consul, under his hand and seal of office, to be
true copies of the originals, they shall be sealed up by him and returned to the
solicitor of the treasury, who shall file them in his office, and cause them to be
recorded in a book to be kept for that purpose. A copy of any such law, judg-
ment, order, decree, journal, correspondence, or other public document, so filed, or
of the same so recorded in said book, may be read in evidence in any court, where
the title to land claimed by or underthe United States may come into question,
equally with the originals.

§ 908. The edition of the laws and treaties of the United States, published by
Little & Brown, shall be competent evidence of the several public and private
acts of congress, and of the several treaties therein contained, in all the courts of
law and equity and of maritime jurisdiction, and in all the tribunals and pub-
lic offices of the United States, and of the several States, without any further
proof or authentication thereof.”

§ 942. A printed copy of a statute, or other written law, of another Printed |
copies 0

state, or of a territory, or of a foreign country, or a printed copy of a laws of
proclamation, edict, decree, or ordinance, by the executive power ““"*: %

thereof, contained in a book or publication, purporting or proved to
have been published by the authority thereof, or proved to be com-
monly admitted, as evidence of the existing law, in the judicial
tribunals thereof, is presumptive evidence of the statute, law, procla-
mation, edict, decree, or ordinance. The unwritten or common law
of another state, or of a territory, or of a foreign country, may be
proved, as a fact, by oral evidence. The books of reports of cases,
adjudged in the courts thereof, must also be admitted, as presump-
tive evidence of the unwritten or common law thereof.

[Co. Proc., § 426, as amended in 1869. See, also, L. 1848, ch. 312
(3 RB. 8., 5th ed., 679; 4 Edm., 643).]

§ 943. A copy of the record, or any other proceeding, of a court Copies
of records

of the United States, is evidence, when certified by the clerk or gf United

officer, in whose custody it is required by law to be. race

[I.. 1845, ch. 303, § 1 (3 R. S., 5th ed., 679; 4 Edm., 641), amended
by omitting the clause, prescribing the form of the certificate, which
is provided for in § 957, post. |

§ 944. [Amended, 1877, 1879.] A copy of a record or other paper, ra.; of
remaining in a department of the government of the United States, ments on
is evidence, when certified by the head, or acting chief officer, for Baye’
the time being, of that department; or when certified by the ofticer States,

239
§§ 945-9477 DOCUMENTARY EVIDENCE. [cope civ. PROC

 

JUSTICE'S
MANUAL.

Record of
bill of

sale, etc.,
of vessel.

Convey-
ance of
land
without
the State.

Exemplifi-
cation of
record of
convey-
ance of
land
without
the State.

in whose charge it is, pursuant to a statute of the United States, or
otherwise in accordance with a statute of the United States relating
to certifying the same. The record of the observations of the weather,
taken under the direction of the signal service of the United States,
when certified by the officer in charge thereof, at the place where
they were taken and are kept, is presumptive evidence of the matters
of fact stated therein.

[L. 1846, ch. 240,8§ 1 (83 R.S., 5th ed., 679; 4 Hdm., 641), with a
similar omission; and L. 1876, ch. 299, omitting the requirement that
the certificate must be under oath. ]

§ 945. The record of a bill of sale, mortgage, hypothecation, or
conveyance of a vessel, belonging to a port or place, within the
United States, recorded in the office of the collector of customs,
where the vessel is registered or enrolled, which was acknowledged
or proved, before it was recorded, in like manner as a deed to be
recorded within the State; or a transcript of such a record, duly
certified by the collector; is evidence, with the like effect as the
original

[From L. 1862, ch. 251 (4 Edm., 646), as amended by L. 1865, ch.
512 (6 Edm., 495).]

§ 946. A conveyance of real property, situated without the State,
acknowledged or proved, and certified, in like manner as a deed to
be recorded within the county wherein it is offered in evidence, is
evidence, without further proof thereof, as if it related to real prop-
erty situated within the State. A conveyance of real property, situ-
ated within another state, or a territory of the United States, which
has been duly authenticated, according to the laws of that state or
territory, so as to be read in evidence in the courts thereof, is evi-

dence in like manner.
[1 R. S., 761, Part 2, ch. 3, §27(3 R. S, 5th ed, 57; 1 Edm., 712),
amended by inserting, in the first sentence, a requirement that the

conveyance must be acknowledged, etc., so as to entitle it to be recorded
within the county where it is offered. ]

§ 947. An exemplification of the record of a conveyance of real
property situated without the State, and within the United States,

which has been recorded in the state or territory, where the real
240
CHAP. IX. ] DOCUMENTARY EVIDENCE. §§ 948-950.

property is situated, pursuant to the laws thereof, when certified
under the hand and seal of the officer, having the custody of the
record, is, if the original cannot be produced, presumptive evidence
of the conveyance, and of the due execution thereof.

[New ; analogous to L. 1864, ch. 311 (6 Edm., 254).]

§ 948. A transcript from the docket-book of a justice of the
peace, within an adjoining state, of a judgment rendered by him ;
a transcript of his minutes of the proceedings in the cause, previous
to the judgment ; or of an execution issued thereon ; or of the return
of an execution; when subscribed by the justice, and authenticated
as prescribed in the next section, is presumptive evidence of his ju-
risdiction in the cause, and of the matters shown by the transcript.

[From L. 1836, ch. 439, §1(3R.S., 5th ed., 678; 4 Edm., 639).
The original is singularly obscure. It has been remodelled, so as to
express more clearly the supposed meaning of its provisions ; par-
ticularly that relating to a transcript “ of his jurisdiction in said
cause”. |

§ 949. Such a transcript must be authenticated by a certificate
of the justice, annexed thereto, to the effect, that it is in all respects
correct, and that he had jurisdiction of the cause; and also by a cer-
tificate of the clerk or prothonotary of the county, in which the
justice resided at the time of rendering the judgment, under his
hand and the seal of the court of common pleas, or other county
court of the county, to the effect that the person, subscribing the
certificate attached to the transcript, was, at the date of the judg-
ment, a justice of the peace of that county; and that the signature
thereto is in his own handwriting.

[Id., § 2.]

§ 950. The judgment and other proceedings, and the justice’s
authority to render the judgment, may also be proved, by the pro-
duction of the docket, or of a copy of the judgment or other pro-
ceedings; and the oral testimony of the justice, to the truth and
correctness thereof, and to his authority to render the judgment.

[Id., § 3.]
[31] 241

PART IL.

Transcript
of docket,
etc., of
justice of
adjoining
stato.

Id.; how
authenti-
cated.

Other
proof.
§§ 951-953. DOCUMENTARY EVIDENCE. [cops crv. proc.
MANUAL, § 951. The last three sections do not prevent the introduction of
maybe, evidence, to controvert any of the proof, in relation to the validity

rebutted.
of a judgment therein specified.
[Id., § 4.]

Copiesof  § 952. A copy of a record, or other judicial proceeding, of a

foutsct court of a foreign country, is evidence, when authenticated as fol-

countries ;
ow lows:
authenti-

aaa J. By the attestation of the clerk of the court, with the seal of
the court affixed, or of the officer in whose custody the record is
legally kept, under the seal of his office.

2. By a certificate of the chief-judge or presiding magistrate of
the court, to the effect, that the person, so attesting the record, is
the clerk of the court; or that he is the officer, in whose custody the
record is required by law to be kept; and that his signature to the
attestation is genuine.

3. By the certificate, under the great or principal seal of the
government, under whose authority the court is held, of the secretary
of state, or other officer having the custody of that seal, to the effect,
that the court is duly constituted, specifying generally the nature of
its jurisdiction ; and that the signature of the chief-judge or presid-
ing magistrate, to the certificate specified in the last subdivision, is
genuine.

[From 2 R. 8., 396, Part 3, ch. 7, tit. 38, § 26 (3 R.S., 5th ed., 678;
2 Edm., 413), amended by omitting, from sub. 3, the provision that
the secretary of State, etc., must verify the signature of the clerk, as
well as that of the presiding magistrate. Two verifications of the
same signature seem to be unnecessary, and it may be difficult to pro-
cure the second. |

Other § 953. A copy of a record, or other judicial proceeding, of a
moe court of a foreign country, attested by the seal of the court, in which
it remains, must also be admitted in evidence, upon due proof of
the following facts:
1. That the copy offered has been compared by the witness with
the original, and is an exact transcript of the whole of the original.
2. That the original was, when the copy was made, in the custody
of the clerk of the court, or other officer legally having charge of it.

242
CHAP. Ix.| DOCUMENTARY EVIDENCE. §§ 954-956.

3. That the attestation is genuine.
[Id., § 27.]

§ 954. [Amended, 1877.] Nothing in this article is to be con-
strued, as declaring the effect of a record or other judicial proceeding

of a foreign country, authenticated so as to be evidence.(*)

[Id., § 28, last clause. The remainder is included in title fifth of
this chapter. See § 962, post. This enactment wisely leaves the
effect of a foreign judgment or other judicial proceeding to be declared,
in general, by the courts. It seems to be now the settled doctrine in
England, as well as in this State, that such a judgment cannot be
impeached, except by showing that the court had not jurisdiction or,
that the defendant was not served with process, or that the judgment
was fraudulently obtained. Henderson v. Henderson, 6 Q. B., 288;
Ferguson v. Mahen, 11 Ad. & Ellis, 179; Ricardo v. Gracias, 12
Clark & Finn., 398; Bank of Australasia v. Nias, 4 Eng. L. & Eq.,
252; Taylor v. Bryden, 8 Johns. 183; Lazier v. Westcott, 26 N.
Y., 146.]

[Section 955 of the act of 1876, which was stricken out by the amend-
atory act of 1877, was a revision of L. 1868, ch. 596 (7 Edm., 321),
which provided that a judgment rendered in Canada should be only
presumptive evidence of the debt, etc., on which it was founded. ]

§ 956. [Amended, 1877.] A copy of a patent, record, or other
document, remaining of record ina public office of a foreign country,
certified according to the form in use in that country, is evidence
when authenticated as follows :

1. By the certificate, under the hand and official seal of a commis-
sioner appointed by the governor to take the proof or acknowledg-
ment of deeds in that country, to the effect that the patent, record,
or document is of record in the public office, and that the copy
thereof is correct and certified in due form.

2. By a certificate under the hand and official seal of the secretary
of State, annexed to that of the commissioner, to the same effect as
prescribed by law for the authentication of the certificate of such a
commissioner, upon a conveyance to be recorded within the State.
The certificate of the commissioner, thus authenticated, is presump-
tive evidence that the copy of the patent, record, or document is
certified according to the form in use in the foreign country.

[L. 1875, ch. 136, portions of $$ 1, 2, 8, and 9.]

 

(a) L. 187%, ch. 311, provides that any certificate, etc., which is by the laws of any other
State, or of the dominion of Canada, prima facie evidence of the formation, etc., of a
corporation or joint-stock company there located, shall be received in evidence within
the State.

243

PART II,

This ar-
ticle does
not de-
claro effect
of record,
etc.

Docu-
ments
from
foreign
countries ;
how
authenti-
cated.
§§ 957-960. DOCUMENTARY EVIDENCE. [cops crv. PRoo.

JUSTICEH'S
MANUAL.

Form of
certificate
to copies,
etc.

Certificate
must be
sealed.

Qualifica-
,tion of
last sec-
tion.

Public or
corporate
seal

may be
stamped.

TITLE V.

Miscellaneous provisions.

§ 957. Where a transcript, exemplification, or certified copy of
a record or other paper, is declared by law to be evidence, and special
provision is not made for the form of the certificate, in the particular
case, the person, authorized to certify, must state, in his certificate,
that it has been compared by him with the original, and that it is a
correct transcript therefrom, and of the whole of the original.

[2 R.8., 403, Part 3, ch. 7%, tit.3, first part of § 59 (3 R. S., 5th ed.,
687; 2 Edm., 420), amended so as to correspond to the preceding sec-
tions of this chapter. ]

§ 958. If the officer, or the court, body, or board, in whose cus-
tody an original paper, specified in the last section, is required to be,
by the laws of the State, or of another state, or of the United
States, or of a territory thereof, or of a foreign country, has, pur-
suant to those laws, an official seal, the certificate must be attested
by that seal. If the certificate is made by the clerk of a county
within the State, it must be attested by the seal of the county.

[Id., remainder of § 59, amended in like manner, and as required
by the abolition of the courts of common pleas; and, also, so as to ap-
ply to all certificates, whether made within or without the State. ]

§ 959. [Amended, 1877.] The last section does not require the
seal of a court to be affixed to a certified copy of an order, or of a
paper filed therein, or entry made, where the copy is used in the
same court, or before an officer thereof; or, in the supreme court,

where it is used in a circuit court, or a court of oyer and terminer.

[Id., § 60, with the addition of the words, “ or a court of oyer and
terminer”’. |

§ 960. [Amended, 1877.] Where a seal of a public officer, or of
a corporation is authorized or required by law, it may be impressed
directly on the paper.

[Id., part of § 61, and L. 1848, ch. 197, §1 (3B. S., 5th ed., 687 ;
4 Kdm., 643). In the act of 1876, this section also tookin § 62 of the
R. §.; but the provision corresponding to the latter was expunged by
the amendatory act of 1877.]

244
CHAP. 1X. ] DOCUMENTARY EVIDENCE. §§ 961-962.

E PART IL.
§ 961. A surrogate, county clerk, register, clerk of a court, or gumo-

i a gates,
other person, having the custody of the records or other papers in a clerks,
etc., to

public office, within the State, must, upon request, and upon pay- geareh

ment of, or offer to pay, the fees allowed by law, or, if no fees are gece’

expressly allowed by law, fees at the rate allowed to a county clerk
for a similar service, diligently search the files, papers, records, and
dockets in his office ; and either make one or more transcripts there-
from, and certify to the correctness thereof, and to the search, or
certify that a document or paper, of which the custody legally
belongs to him, cannot be found. If he refuses, or unreasonably
neglects or delays, to make such a search, or to furnish such a tran-
script or certificate, or makes a false certificate, he is guilty of a mis-
demeanor.

[L. 1847, ch. 470, § 40 (3 R.S., 5th ed., 481; 4 Edm., 588); amended
so as to correspond to § 921, ante, and so as to punish the making of
a false certificate. Instances have occurred, where some of the offi-
cers, named in this section, have refused to certify that papers cannot
be found, on the ground that there is no duty, imposed upon them by
law, to search therefor, or to make such a certificate. ]

§ 962. Nothing in title fourth of this chapter prevents the proof Saving
of a fact, act, record, proceeding, document, or other paper or writ-
ing, according to the rules of the common law, or by any other com-
petent proof.

[2 R. 8, 397, Part 3, ch. 7, tit. 3, part of § 28 (3 B.S, 5th ed.,
678; 2 Edm., 418); and L. 1846, ch. 240, §2 (3 R. S., 5th ed, 6793
4 Edm., 642).]

245
§ 1027. QUALIFICATIONS OF JURORS. [copz crv. proc

JUSTICE'S
MANUAL.

CHAPTER X.

(EXTRACTS. )

TRIALS, INCLUDING JURORS AND JURIES.

“TITLE II.

Trial jurors, except in New-York and Kings counties ; mode of
selecting them and of procuring their attendance.

ARTICLE FIRST.

QUALIFICATIONS AND EXEMPTIONS OF TRIAL JURORS.

PRELIMINARY Notz.— By § 2991, p. 61, ante, jurors in justices’ courts
must be “ qualified to serve, and not exempt from serving as trial
jurors in courts of record”. The following sections contain the pro-
visions respecting the qualifications and exemptions of trial jurors,
elsewhere than in New-York and Kings counties, each of which has
a special jury law, not copied into this work. See Code Civ. Proc.,
§§ 1079 to 1189.

§ 1027.* In order to be qualified to serve, as a trial juror, in a court

of record, a person must be:
1. A male citizen of the United States, and a resident of the

county.
foarte” 2. ‘Not less than twenty-one, nor more than sixty years of age.
trial ‘ . . ‘
jurors 3. Assessed, for personal property, belonging to him, in his own

right, to the amount of two hundred and fifty dollars; or the owner
of a freehold estate in real property, situated in the county, belong-
ing to him in his own right, of the value of one hundred and fifty
dollars; or the husband of a woman who is the owner of a like free-
hold estate, belonging to her, in her own right.

246
cHAP.x.] QUALIFICATIONS OF JURORS. 8§ 1028-1029.

4. In the possession of his natural faculties, and not infirm or aac

decrepit.
5. Free from all legal exceptions; of fair character; of approved
integrity ; of sound judgment; and well informed. (*)

[2 R.8., 411, Part 3, ch. 7, tit. 4, § 13 (3 R.S., 5th ed., 695; 2 Edm.,
428); omitting the first clause, which 1s in § 1036, post. Subd. 3
has been remodelled so as to conform to the changes in the law of
property, made by the married women’s acts. Otherwise, the section
leaves the former provisions of law substantially unchanged. Although
its structure makes the property qualification, in subd. 3, depend upon
the facts, as they exist at the time of the trial, while § 13 of the B.S.
makes it depend upon the facts, as they exist when the juror’s name
is placed upon the list, the practical effect is as stated in the substi-
tute; for, by § 383 of the same title of the R.S., the juror is to be
discharged, unless he has the requisite property qualification, at the
time of the trial. ]

§ 1028.* But a person who was assessed, on the last assessment-roll
of the town, for land in his possession, held under a contract for the
Addi-

purchase thereof, upon which improvements, owned by him, have tional,
provision

been made, to the value of one hundred and fifty dollars, is qualified respecting

a a : lifica-
to serve as a trial juror, although he does not possess either of the tion.

qualifications, specified in subdivision third of the last section, if he
is qualified in every other respect.(*)

[Id., § 14, expanded so as to include the entire State, except New-
York and Kings counties.]

§ 1029.* Each of the following officers is disqualified to serve as a

trial-juror : :
Certain ~
1. The governor; the lieutenant-governor; the governor’s private aicers
secretary. fled:
2. The secretary of State; the comptroller; the State treasurer ;
the attorney-general ; the State engineer and surveyor ; a canal com-
missioner; an inspector of State prisons; a canal appraiser; the
superintendent of public instruction; the superintendent of the
bank department; the superintendent of the insurance department;
and the deputy of each officer, specified in this subdivision.
3. A member of the legislature, during the session of the house,
of which he is a member.

4. A judge of a court of record, or a surrogate.
247

 

(a) See the preliminary note to this title.
§ 1030.

JUSTICI’S

MANUAL.

Persons
entitled to
claim
exemption
from
service.

EXEMPTIONS OF JURORS. [CODE CIV. PROC.

5. A sheriff, under-sheriff, or deputy-sheriff.
6. The clerk or deputy-clerk of a court of record.(*)

[This section covers cases, most of which have been previously un-
provided for by statute.]

§1030.* [Amended, 1879.] Each of the following persons, although
qualified, is entitled to exemption from service, as a trial juror, upon
his claiming exemption therefrom :

1. A clergyman, or a minister of any religion, officiating as such,
and not following any other calling.

2. A resident officer of, or an attendant, assistant, teacher, or other
person, actually employed in, a State asylum for lunatics, idiots, or
habitual drunkards.

3. The agent or warden of a State prison; the keeper of a county
jail; or a person actually employed in a State prison or county
jail.

4, A practicing physician or surgeon, having patients requiring
his daily professional attention.

5. An attorney or counsellor at law, regularly engaged in the
practice of the law as a means of livelihood.

6. A professor or teacher, in a college or academy.

7. A person actually employed in a glass, cotton, linen, woolen, or
iron manufacturing company, by the year, month, or season.

8. A superintendent, engineer, or collector, on a canal, authorized
by the laws of the State, which is actually constructed and navi-
gated.

9. A master, engineer, assistant-engineer, or fireman, actually em-
ployed upon a steam-vessel, making regular trips.

10. A superintendent, conductor, or engineer, employed by a rail-
road company, other than a street railroad company ; or an operator,
or assistant-operator, employed by a telegraph company; who is
actually doing duty in an office, or along the railroad or telegraph
line of the company, by which he is employed.

11. An officer, non-commissioned officer, musician, or private of
the national guard of the State, performing military duty; or a per-

248

 

(a) See the preliminary note to this title.
CHAP. x. | EXEMPTIONS OF JURORS.

son, who has been honorably discharged from the national guard,
after five years’ service, in either capacity.

12. A person who has been honorably discharged from the mili-
tary forces of the State, after seven years’ faithful service therein.
But in order to entitle a person to exemption, under this subdivision,
his service must have been performed before the 23d day of April,
1862, either as a general or staff-oflicer, or as an oflicer, non-commis-
sioned officer, musician, or private, in a uniformed battalion, com-
pany, or troop of the militia of the State, and armed, uniformed,
and equipped, according to law; ora portion thereof, during that
period and in that capacity, and the remainder, since the 23d day of
April, 1862, as a member of the national guard of the State.

13. A member of a fire company, or fire department, duly organ
ized according to the laws of the State, and performing his duties
therein ; or a person who, after faithfully serving five successive
years in such a fire company, or fire department, has been honor-
ably discharged therefrom.

14. A person otherwise specially exempted by law.(*)

[2 R. §., 415, Part 3, ch. 7, tit. 4, § 33, subd. 4, 5, 6, 7, and 8, and
§ 35, subd. 1 (3 R.8., 5th ed., 713; 2 Edm., 432), and L. 1861, ch.
215 (3 Edm., 725) ; remodelled, and amended chiefly by adding to the
list of exemptions. The introductory clause has been substituted in
place of the words, ‘‘the court shall discharge any person from serv-
ing on a jury in the following cases”, that provision being contained
in the next section but one. Subd. 1 is the first clause of subd. 8 of
§ 33, amended so as to include other than Christian ministers, and to
restrict its application to those who are actually exercising the duties
of that calling. Subd. 2 has been taken from various statutes, relat-
ing to the asylums therein specified, ex. gr. L. 1842, ch. 135, § 10;
L. 1862, ch. 220, § 10; L. 1874, ch. 446, tit. 3, § 11. Subd. 3 is sub-
stantially the same as L. 1847, ch. 460, § 148. Subd. 4 has been taken
from subd. 1 of § 35 of the R.8.; it has been placed here, so as to
make the practice of medicine, etc., a ground for exemption, rather
than an excuse for non-attendance. Subd. 5 is new; its propriety
will, it is believed, be apparent. Subd. 6, 7, and 8 have been substan-
tially taken from the corresponding subd. of § 33 of the R.S. Subd.
9 and 10 have been framed upon L. 1861, ch. 215 (8 Edm., 725), the
operation of which has been extended to certain employees upon
steamboats and railroads, who should be exempted in like cases, upon
the same grounds as employees of telegraph companies. Subd. 11 em-
bodies the latest expression of the legislative will, with respect to the
exemption, from jury duty, of the members of the national guard,
and those who have been honorably discharged therefrom. LL. 1875,
ch. 2238, § 59, amending § 253 of the “military code”. Subd. 12 re-
vives an exemption which once prevailed, but had been abrogated.
The date specified therein, the 23d of April, 1862, is that when the

[32] 249

(a) See the preliminary note to this title.

 

§ 1030.

‘PART II.
§ 1031,

JUSTICE'S
MANUAL.

Evidence
of exemp-
tion in
certain
cases.

EXEMPTIONS OF JURORS. [copz crv. proc.

statute, organizing the national guard, took effect. LL. 1862, ch. 477.
That act (§ 319) repealed various acts, passed in 1854 and subse-
quently, which provided for exemption from jury duty, after seven
years’ military service; and the exemption was not expressly restored
until L. 1870, ch. 80, §§ 253, 254, when it was made prospective only.
Afterwards, by L. 1871, ch. 245, 1t was made retrospective. The lat-
ter statute was repealed by L. 1872, ch. 519, which, however, does not
affect the act of 1870. And L, 1849, ch. 307, § 13, in effect provides
that seven years’ military service in a uniformed company, etc., ex-
empts from jury duty. Thatact has not been expressly repealed; and
it is doubtful whether it was impliedly repealed, by the act of 1870.
The struggle before the legislature, upon this question of military ex-
emption, proceeds from the fact that most of the statutes, relating to
the subject, allow an exemption from taxation, as well as from jury
duty. Whatever may be thought of the propriety of the former, there
is no reasonable ground for refusing the latter. Indeed, the faith of
the State was pledged to the persons who are entitled to claim the
exemption. Subd. 13 consists of subd. 5 of § 33 of the R. S., ex-
tended so as to take in L. 1845, ch. 244; L, 1847, ch. 460, § 130; and
L. 1848, ch. 188. The provisions, respecting the evidence of a per-
son’s right to exemption under subd. 2, 3, 11, and 12, are incorporated
into the next section.]

§ 1031.* The evidence of the right to exemption, as prescribed in
the last section, is as follows:

1. Under subdivision second thereof, the certificate of the super-
intendent, or other principal officer of the asylum.

2. Under subdivision third thereof, the certificate of the warden,
or other principal officer, of the State prison, or the sheriff of the
county, as the case requires.

3. Under subdivision eleventh thereof, where the applicant is a
non-commissioned officer, musician, or private, In a company or
troop of the national guard, the certificate of the commanding offi-
cer of the company or troop, accompanied with proof, by affidavit,
of the genuineness of the signature thereto.

4. Under the last clause of subdivision eleventh, or under sub-
division twelfth thereof, in the discretion of the court, the discharge
of the person from military service, if it shows the facts entitling
him to exemption.

5. Under the first clause of subdivision thirteenth thereof, where
the applicant is under the rank of foreman, the certificate of the
foreman, or other chief officer, of the company, to which the appli-
cant belongs, accompanied with proof, by affidavit, of the genuine-
ness of the signature thereto.

250
CHAP. X. | EXEMPTIONS, ETC., OF JURORS. §§ 1032-1033,

6. Under the last clause of subdivision thirteenth thereof, the cer-
tificate of the chief engineer of the fire department of the city or
village, where the service was performed, or of the mayor or presi-
dent of the city or village.

A certificate, specified in this section, must be dated within three
months before the time of presenting it, and filed with the clerk of
the court, to which it is presented.(*)

[Prepared, with some modifications, from the provisions of 2 R. 8,
415, Part 3, ch. 7, tit. 4, § 33, subd. 4 (3 R.8., 5th ed., 713; 2 Edm.,
432), and the statutes relating to exemptions of militiamen and fire-
men, etc., cited in the note to the last section. |

§ 1032.* The court must discharge a person from serving as a trial
juror, in either of the following cases:

1. Where it satisfactorily appears that he is not qualified.

2. Where it satisfactorily appears that he is exempt, and he claims
the benefit of the exemption.

Where a person is discharged, for either of the causes specified in
this section, the clerk must destroy the ballot, containing his name.(*)

[Id., § 33, subd. 1, 2, and 3, and § 34.]

§ 1033. Upon satisfactory proof of the facts, a court, at the term
to which a person is returned as a trial juror, must excuse him from
serving during the whole, or a portion of the term, in either of the
following cases:

1. Where he is a justice of the peace, or executes any other civil
office, the duties of which are, at the time, inconsistent with his at-
tendance as a juror.

2. Where he is a teacher in a school, actually employed and serv-
ing as such.

3. Where, for any other reason, the interests of the public, or of
the juror, will be materially injured by his attendance; or his own
health, or the health of a member of his family, requires his absence ;
or he is temporarily incapacitated, for any reason, from properly
discharging the duties of a juror.

Where a person is excused, in either of the cases specified in this
section, the ballot, containing his name, must be returned to the box
from which it was taken.(*)

251

 

(a) See preliminary note to this title.

PART Il.

When
juror to be
discharged
from serv-
ing.

When
juror to be
excused
from sery-
ing.
§§ 1034-1181. FORMATION OF THE JURY. [CODE CIV. PROC.

MANUAL [Id., § 35, amended by omitting subd. 1, and part of subd. 2, which
have been transferred to § 1030, ante, and by adding the last clause of
subd. 8 of this section. Under the original statute, the recent death
of a wife or child is not a legal ground of excuse. ]

Applica- § 1084. Section 1029 of this act applies throughout the State.
OD 0:
this

this ie, ag Phe remainder of this article does not apply to the city and county
respects 4

New-York Of New-York, or the county of Kings.(*)

counties” [See title 4 of this chapter.]

TITLE V.-

Trial by jury.

ARTICLE FIRST.

FoRMATION OF THE JURY.

Two § 1176. Upon the trial of an issue of fact, joined in a civil action,
peremp-
tory chale in a court of record, or not of record, each party may peremptorily

eivi ‘
action, challenge not more than two of the persons, drawn as jurors for the

trial.

[L. 184%, ch. 134, $1 (3R.S., 5th ed, 719; 4 Edm., 648).]

Challenges § 1179. In a penal action, in a court of record, or not of record,
actions. to recover a sum of money, it is not a good cause of challenge to a
trial juror, or to an officer who notified the trial jurors, that the
juror or the officer is liable to pay taxes, in a city, town, or county,

which may be benefited by the recovery.

[Id., § 58. See, also, 2 R. S., 551 Part 3, ch. 8, tit. 17, § 2 (3 R.
§., 5th ed., 865; 2 Hdm., 571).]

ARTICLE SECOND.

Tur VERDICT.

Discharge § 1181. Where a jury is empanelled to try an issue, to make

of jury % a . . .

faiiingto an inquiry, or to assess damages, in an action in a court of record,
a.

agre
252

 

(a) See preliminary note to thistitle.
CHAP. X.] JURORS AND JURIES. §§ 1192-1194.

or not of record, or in a special proceeding before an officer, if the
jurors cannot agree, after being kept together, for such a time as is
deemed reasonable, by the court before which, or the officer before
whom, they were empanelled, the court or officer may discharge
them, and issue a precept for a new jury, or order another jury to be
drawn, as the case requires ; and the same proceedings must be had
before the new jury, as if it was the jury first empanelled.

[2 R.S., 554, Part 3, ch. 8, title 17, § 26 (3 B.S, Sth ed., 869; 2
Edm., 575).]

TITLE VI.

Miscellaneous provisions ; including those relating to embracery
and other acts of misconduct.

§ 1192. A juror shall not be questioned, and is not subject to
an action, or other liability, civil or criminal, for a verdict rendered
by him, in an action in a court of record, or not of record, or ina
special proceeding before an officer, except by indictment, for cor-
rupt conduct, in a case prescribed by law.

[2 B.S. 421, Part 3, ch. 7%, tit. 4, § 69 (3B. S., 5th ed, 720; 2
Edm., 439).]

§ 1193. A person, drawn or notified to attend, as a trial juror,
in an action in a court of record, or not of record, or in a special
proceeding before an officer, who takes any thing to render his ver-
dict, or receives, from a party to the action or special proceeding, a
gift or gratuity, forfeits ten times the sum, or ten times the value
of that, which he took or received, to the party to the action or
special proceeding, aggrieved thereby ; and is also liable to that
party, for his damages sustained thereby; besides being subject to
the punishment, prescribed by law.

[Id., § 70.]

§ 1194. An embraceor, who procures a person, drawn or notified
to attend, as a trial juror, to take gain or profit, contrary to the last
section, forfeits ten times the sum, or ten times the value of that,

253

PART Il.

Jurors not
to be ques-
tioned for
their
verdict.

Penalty
where
jurortakes
gift, etc.

Embrac-
pani It
penalty
therefor.
§§ 1195-1198. JURORS AND JURIES. [CODE CIV. PROG.

JUSTICES

MANUAL,

Penalty
for juror’s
non-at-
tendance
in special
proceed=
ing.

Sheriff,

etc., to

keep jury

in special

proceed-
ng:

ing;
penalty.

Notice of
imposition
of fine.

Special
return of
delin-
quency
and fine to
county
court.

which was so taken, to the party aggrieved thereby; and is also lia-
ble to that party for his damages sustained thereby; besides being
subject to the punishment, prescribed by law.

[Id., § 71, amended so as to make its meaning clearer. ]

§ 1195. A person, who has been lawfully and personally notified
to attend, as a trial juror, to inquire into a matter or thing, or to
hear and try a controversy, in a special proceeding, pending before
a judge, justice of the peace, commissioner, or other officer, and who
wilfully neglects to attend, as required by the notice, may be fined
by the officer, in a sum, not exceeding twenty-five dollars. But this
section does not extend to a case, where special provision is made by
law, for punishing the default of a trial juror.

(2 R. 8., 551, Part 38, ch. 8, tit. 17, §4 (3 R.S., 5th ed, 865; 2
ddm., 572), extended so as to make it applicable to proceedings de-
lunatico inquirendo, etc.]

§ 1196. A sheriff, constable, or other officer, who notified jurors
to attend, in a case specified in the last section, must, when directed
by the ofticer, before whom the special proceeding is pending,
attend, and take charge of the jury. For a wilful neglect to obey
such a direction, or for any misconduct, while attending the jury,
by which a right or remedy of a party to the special proceeding
may be impaired or prejudiced, he must be fined, by that officer, in
asum not exceeding twenty-five dollars.

[Id., § 5.]

§ 1197. Where a fine is imposed, in a case specified in the last
two sections, written notice thereof must be served upon the person
fined, to the end that he may apply to the officer imposing it, for the
remission of the whole or a part thereof, upon proof that he had a
reasonable excuse for his neglect or misconduct, or that other good
cause exists for the remission.

[Id., § 6, amended so as to require the notice to be in writing. ]

§ 1198. If, within thirty days after the service of the notice,
the fine has not been remitted by the officer imposing it, he must
make a special return of the delinquency or misconduct, for which

254
CHAP. X,] JURORS AND JURIES. § 1199.

the fine was imposed, and of the amount of the fine, accompanied err

with proof, by affidavit, of service of the notice specified in the last
section, to the next term of the county court of the county, in which
the delinquent resides.

[Id., § 7%, with an amendment requiring proof of service of the
notice. |

§ 1199. The county clerk must deliver to the district-attorney, Collection

or remis-
a copy of the return and of the affidavit, at the time when he #0” of

fine.
delivers to him copies of the minutes of fines, imposed by the county
court. The fine must be collected, or it may be remitted or reduced,
in the same manner as a fine imposed by the county court, upon a
defaulting trial juror.
[Id., § 8.]
255
§§ 1206-1211. JUDGMENTS. [CODE CIV. PROC,

JUSTICE'S
MANUAL

Judgment’
for or
against a

married
woman.

Judgment
to bear
interest,

CHAPTER XI.

(EXTRACTS.)

JUDGMENTS.

TITLE I.

Judgment in an action.

ARTICLE FIRST.

GENERAL PROVISIONS,

§ 1206. Judgment for or against a married woman, may be ren-
dered and enforced, in a court of record, or not of record, as if she
was single.

[Prepared as a substitute for the last two sentences of Oo. Proc., §
274. ‘There seems to be no sufficient reason, for preserving any longer
the remnants of the distinction between actions against married
women, and actions against other persons. Ainsley v. Mead, 3 Lans.,
116; Morris v. Wheeler, 45 N. Y., 708. See the note to § 450, ante. |

§ 1211. A judgment for a sum of money, rendered in a court
of record, or not of record, or a judgment rendered in a court of
record, directing the payment of money, bears interest from the
time when it is entered. But where a judgment directs that money
paid out shall be refunded or repaid, the direction includes interest
from the time when the money was paid unless the contrary is

expressed.

[The first sentence is from L. 1844, ch. 324,§1 (3 R. S., 5th ed.,
637; 4 Edm., 628), extended to judgments, in a court of record, di-
recting the payment of money into court, etc., as distinguished from
ordinary judgments for money. The second sentence is the provi-
sion tacked to § 3 of the same act, by L. 1869, ch. 807, § 1 (7 Edm.,
477), amended so as to express more ee its supposed meaning.
The act of 1869 is oneof the curiosities of legislation ; for the section
of the act of 1844, which it amended, was undoubtedly repealed, by
implication, by Co. Proc., § 810, which was substantially identical with
it.

256
CHAP, XIL] EXECUTIONS.

CHAPTER XII.

(EXTRACTS. )

APPEAIS.

TITLE II.
Appeal to the court of appeals.

§ 1835.* The attorney for the respondent may, within ten days
after service of a copy of the undertaking, with notice of the filing
thereof, serve upon the attorney for the appellant, a written notice
that he excepts to the sufficiency of the sureties. Within ten days
thereafter, the sureties, or other sureties in a new undertaking, to
the same effect, must justify, before a judge of the court below, or
acounty judge. At least five days’ notice of the justification must
be given ; in every other respect, the provisions of sections 578, 579
and 580 of this act apply to the justification. If the judge finds
the sureties sufficient, he must indorse his allowance of them, upon
the undertaking, or a copy thereof; and a notice of the allowance
must be served upon the attorney for the exceptant. The effect of
a failure so to justify, and to procure an allowance, is the same, as if
the undertaking had not been given.(*)

[Co. Proc., § 341, amended by making the time to except run frou.
the service of a copy of the undertaking, and of notice of filing, instead
of the notice of appeal; and by omitting the first sentence, as it is
covered by § 812, ante. See Blake v. Lyon, etc., Co, '7 Week. Dig.,
461.]

[33] 257

(a) Applied to justices courts by § 3050, page 82.

 

§ 1335.

PART II,

Exception
to sure-
ties ; justi-
fication.
§§ 1367-1373. EXECUTIONS. ' [CODE CLV. PROC.

JUSTICES
MANUAL,

General
requisites
of execu-
tions ;
when
issued on
ling
transcript
from
justice’s

court, ete.

Requisites
of execu-
tion for
delivery
of prop-
erty. How
money,
recovered
by same
judgment,
may be
collected.

CHAPTER XIII.

(EXTRACTS.)

EXECUTIONS.

TITLE I.

Forms of execution, time and manner of issuing an execution ;
general duties and liabilities of officers.

§ 1367.* Where an execution is issued out of a court, other than
that in which the judgment was rendered, upon filing a transcript
of the judgment rendered in the latter court, it must also specify
the clerk, with whom the transcript is filed, and the time of filing;
and it must be made returnable to that clerk. If the judgment was
rendered in a justice’s court, it must specify the justice’s name; and
it must omit the specification, respecting the filing of the judgment-
roll.(*)

[This section contains the provisions, necessary in the case which it
covers. Section 289 of the Code of Procedure was so drawn that its
requirements could not be followed, in the case referred to. ]

§ 1373.* An execution for the delivery of the possession of real
property, or a chattel, must particularly describe the property, and
designate the party to whom the judgment awards the possession
thereof; and it must substantially require the sheriff, to deliver the
possession of the property, within his county, to the party entitled
thereto. If a sum of money is awarded by the same judgment, it
may be collected, by virtue of the same execution; or a separate
execution may be issued for the collection thereof, omitting the direc-
tion to deliver possession of the property. If one execution is issued
for both purposes, it must contain, with respect to the money to be
collected, the same directions as an execution against property, or
against the person, as the case requires.(’)

[Substituted for Co. Proc., § 289, subd. 4. The first sentence of this
section contains the corresponding provision of § 289 of the Code of
Procedure. The second and third sentences contain all of the remain-

208

 

(a) See section 3043, page 79. (b) Applied to justices’ courts by § 2981, page 39.
CHAP. XIII] EXECUTIONS. §§ 1384-1387.

der of that subdivision which it is desirable to retain in this chapter ;
and also a clause designed to apply this section to the case where an
execution, in an action included within the terms of this section, may
issue against the person. In ch. 14 of this act, will be found rules for
executions in special cases, as where property replevied cannot be re-
turned, ete.]

§ 1384.* A sale of real or personal property, by virtue of an execu-
tion, or pursuant to the directions contained in a judgment or order,
must be made at public auction, between the hour of nine o’clock in
the morning and sunset. (*)

[2 R. S., 369, Part 3, ch.6, tit. 5, § 36 (3 R.S., 5th ed., 650; 2 Edm,
383), amended so as to apply, also, to equity causes. ]

§ 1385.* A person who, before the time fixed for the sale, in a no-
tice of the sale of property, to be made by virtue of an execution, wil-
fully takes down or defaces such a notice put up by the sheriff, or
by his authority, forfeits fifty dollars to the judgment creditor, and
the same sum to the judgment debtor; unless the notice was defaced
or taken down, with the consent of the person seeking to enforce the
forfeiture, or the execution was previously satisfied.(*)

[Id., § 39, amended by giving an action also to the judgment debtor,
in accordance with the apparent equity of the case, and the dictates of
public policy. ]

§ 1886.* An omission by the sheriff to give notice, as required by
law, or the taking down or defacing of a notice, when put up, does
not effect(’) the validity of a sale, made by virtue of an execution, to
a purchaser in good faith, without notice of the omission or offence. (*)

[Id., § 40. It has been held that the sheriff ’s omission to return an
execution does not affect the purchaser’s title. Phillips v. Scheffer, 7
N. Y. Sup. Ct., 347.]

§ 1387.* The sheriff, to whom an execution is directed, or the
under-sheriff or deputy-sheriff, holding an execution, and conducting
asale of property by virtue thereof, shall not, directly or indirectly,
purchase any of the property at the sale. A purchase made by him,
or to his use, is void.(*)

[Id., § 41.]

259

 

(a) Applied to justices’ courts by section 3030, page 75. (b) Error for ‘‘ affect.”

PART II.

Sale on
execution,
etc.; when
and how
con-
ducted.

Penalty
for taking
down or
defacing
notice of
sale.

Validity
of sale,
when not
affected
by sheriff’s
default,
etc,

Purchases
on such
sales, by
certain
officers,
prohib-
ited.
§§ 1389-1390. EXECUTIONS ; EXEMPT PROPERTY. [CODE CIV. PROC.

JUSTICE'S
MANUAL,

Certain
special
exemp-
tions not
affected
by this
article.

What
versonal
roperty
$s exempt,
when
owned by
a house-
holder.

TITLE I.
Execution against property.

ARTICLE FIRST.
PROPERTY EXEMP!’ FROM LEVY AND SALE.

PRELIMINARY Nots.—The following sections of this article are
applied to justice’s courts by § 3028, page 75, ante.

§ 1389.* The enumeration, in this article, of the property which is
exempt from levy and sale by virtue of an execution, does not repeal
any special provision of law, relating to such an exemption, which,
by its terms, is applicable only to a particular class of persons, or
corporations, or to a particular locality, or otherwise to a special
case.(*)

[This section is designed to guard against a repeal, by implication,
of provisions like L. 1847, ch. 133, § 10 (2 R.S., 5th ed., 630; 3 Edm.,
748); L. 1851, ch. 122, § 19 (2. BR. S., 5th ed., 784; 3 Edm., 782); L.
1866, ch. 273, § 6 (6 Edm., 715); L. 186%, ch. 516; and various sim-
ilar statutes. |

§ 1390.* The following personal property, when owned by a house-
holder, is exempt from levy and sale by virtue of an execution ;
and each moveable article thereof continues to be so exempt, while
the family, or any of them, are removing from one residence to an-
other :

1. All spinning wheels, weaving looms, and stoves, put up, or
kept for use, in a dwelling house; and one sewing-machine, with its
appurtenances.

2. The family bible, family pictures, and school-books, used by or
in the family ; and other books, not exceeding in value fifty dollars,
kept and used as part of the family library.

3. A seat or pew, occupied by the judgment debtor, or the family,
in a place of public worship.

4. Ten sheep, with their fleeces, and the yarn or cloth manufac-
tured therefrom ; one cow; two swine; the necessary food for those
animals ; all necessary meat, fish, flour, and vegetables, actually pro-
vided for family use; and necessary fuel, oil, and candles, for the
use of the family for sixty days.

260

 

(a) See the preliminary note to this article.
CHAP. x111.] EXECUTIONS; EXEMPT PROPERTY.

5. All wearing apparel, beds, bedsteads, and bedding, necessary
for the judgment debtor and the family ; all necessary cooking uten-
sils; one table; six chairs; ‘six knives; six forks; six spoons; six
plates ; six teacups; six saucers; one sugar dish; one milk pot ; one
tea pot; one crane and its appendages; one pair of andirons; one
coal-seuttle ; one shovel; one pair of tongs; one lamp; and one
candle-stick.

6. The tools and implements of a mechanic, necessary to the
carrying on of his trade, not exceeding in value twenty-five dol-
lars.(*)

[2 R.8., 367, Part 3, ch. 6, tit. 5,§ 22 (8 R.S., 5th ed., 645; 2
Edm., 380), as amended by L. 1860, ch. 152; with a few additions to
the exempted articles. In subd. 4, the word, “meat”, has been sub-
stituted in place of “pork, beef”, as there seems to be no reason why
mutton should not be exempted, as well as pork. In the last clause
of the same subd., the words, “oil, and candles”, have been added.
In subd. 5, the words, ‘‘arms and accoutrements required by law to
be kept by such person”, have been omitted; they related to the old
militia law, and are now meaningless. The provisions of the existing
law, relating to exemption of the uniforms, arms, etc., of members of
the national guard, belong in the “‘ military code” ; until that statute
is revised, they are preserved by the last section. In the same subd.,
a coal scuttle, a lamp, and a candlestick have been added to the ex-
empted articles. Except as stated in this note, the original section,
as amended by the act of 1860, has been retained without alterations,
although, in some respects, it is very faulty. |

§ 1391.* In addition to the exemptions, allowed by the last section,
necessary household furniture, working tools and team, professional
instruments, furniture, and library, not exceeding in value two hun-
dred and fifty dollars, together with the necessary food for the team,
for ninety days, are exempt from levy and sale by virtue of an exe-
eution, when owned by a person, being a householder, or having a
family for which he provides, except where the execution is issued
upon a judgment, recovered wholly upon one or more demands,
either for work performed in the family as a domestic, or for the
purchase-money of one or more articles,except (°) as prescribed in this
or the last section.(*)

[L. 1842, ch. 157, § 1, asamended by L. 1866, ch. 782 (3 R.S8., 5th
ed., 646; 4 Hdm., 626; 6 Edm., 830); also L. 1858, ch. 107, § 1 (3 R.
S., 5th ed., 646; 4 Edm., 635); consolidated and re-arranged, but
without material change, except as follows. The word, “wholly”,

261

 

(a) See the preliminary note to this article. (b) Error in engrossing for ‘‘exempt.”

a

§ 1391.
PART II.

Additional
personal
property
exempt in
certain
cases.
§ 1392.

JUSTICE’S
MANUAL,

Woman
entitled

to same
exempticn
as a house-
holder.

EXECUTIONS ; EXEMPT PROPERTY. [cope crv. proc.

has been added, after ‘‘judgment recovered ”, in order to render final
the ruling, in Hichkou v. Fay, 36 Barb., 9, to the effect that, if the
demand is partly for the purchase-money of exempted articles, and
partly for an ordinary debt, the exemption attaches, as against the
entire demand. The words, “one or more articles, exempt as pre-
scribed in this or the last section” have been substituted for the enu-
meration of the articles; in order to settle, in the affirmative, the
disputed question, whether one article of exempt property can be
levied upon, where the demand is for the purchase-money of another
article of exempt property. See Hickox v. Fay, 36 Barb. 9; Smath
vy. Slade, 57 id., 637; Snyder vy. Davis, 3 N. Y. Sup. Ct., 596; and
Craft v. Curtiss, 25 How. Pr., 163; which cases conflict upon this
point. The word, “sewing-machine”’, has been dropped from the list
of articles, exempted under this section. Its insertion, in this statute,
furnishes a singular instunce of careless legislation. By L. 1860, ch.
152, the first subd. of § 22 of the Revised Statutes is amended, so as
absolutely to exempt a sewing-machine, from sale under an execution,
when owned by a householder. By L. 1866, ch. 782, the legislature
amended the act of 1842, by udding a sewing-machine to the list of
articles exempted thereby; but the exemptions, allowed by that act,
do not extend to a debt, contracted for the purchase of articles which
are exempt from execution. As the act of 1842 commences with the
phrase, ‘“‘in addition to the articles now exempted by law from levy
and sale under execution, there shall be exempted”, etc., it would
seem that two sewing-machines, owned by a householder, are exempt ;
one absolutely, and the other as against all debts, except those spe-
cially mentioned in the acts of 1842 and 1858, It is presumed that the
legislature intended to exempt only one sewing-machine ; and, adopt-
ing the construction most favorable to the debtor, the exempted ma-
chine has been placed in the list of articles absolutely exempt. See
subd. 1 of the last section. It will be noticed that the expression,
“demand for the purchase-money”, has been left unchanged. It has
been held that this expression does not bring, within the exceptions of
the statute, a judgment recovered against a surety, upon a note given
for the purchase-money of an exempted article. Smith v. Slade, 5%
Barb., 637, approving Davis v. Peabody, 10 id., 91. Obviously, the
latter case is erroneously reported. The word, “not”, should be omit-
ted from the head note ; and “new trial granted”, at the end, should
be “judgment affirmed”. See 11 Barb., p. vii, “ Errata ”.]

§ 1392.* [Amended, 1877.] Where the judgment debtor is a
woman, she is entitled to the same exemptions, from levy and sale
by virtue of an execution, subject to the same exceptions, as pre-
scribed in the last two sections, in the case of a householder.(*)

[New. The provision is applicable to all women; as regards a mar-
ried woman it results logically from the doctrine, that a married
woman may hold property, and is liable to be sued, and to have an
execution issued, against her property, as if she wasa single woman.
Hitherto, it is presumed, her property has been unprotected, if she
lives with her husband ; because, although she may 77 fact be the house-
holder, and the person who provides for the family, the law would
regard her merely as a member of her husband’s family. Single women

262

 

(a) See the preliminary note to this article.
CHAP. x11] EXECUTIONS; EXEMPT PROPERTY. §§ 1393-1405.
and widows have been included in this humane provision, as they are, ee
in this respect, peculiarly the objects of favorable legislation. It would

seem that there can be no objection to this section, except that, where

the execution is against both husband and wife, there might bea

double exemption in the same family; but the contingency is remote,

and its consequences are not so prejudicial to justice, that a measure so

humane, and so clearly in accordance with the policy of the exemption

laws, should be defeated by an apprehension of its occasionally happen-

ing.]

§ 1893.* The pay and bounty of a non-commissioned officer, uaunaee
musician, or private, in the military or naval service of the United Yam

exempt

States; a land warrant, pension, or other reward, heretofore or here- from
A ; : ? execution

after granted by the United States, or by a state, for military or Aa pier

naval services ; a sword, horse, medal, emblem, or device of any Rage
kind, presented, as a testimonial, for services rendered in the mili-
tary or naval service of the United States; and the uniform, arms,
and equipments, which were used by a person in that service, are
also exempt from levy and sale, by virtue of an execution, and
from seizure for non-payment of taxes, or in any other legal pro-
ceeding. (*)

[L. 1864, ch. 578, §§ 4 and 5 (6 Edm., 367), consolidated, and
amended by including a land warrant, pension, uniform, arms, etc.,

among the articles exempt, for reasons which need, it is believed, no
explanation. ]

§ 1394.* A right of action to recover damages, or damages nignt of

* : ets action for
awarded by a judgment, for taking or injuring personal property, en
exempt by law from levy and sale, by virtue of an execution, are OxemPt

exempt, for one year after the collection thereof, from levy and
sale, by virtue of an execution, and from seizure in any other legal
proceeding.(*)

[New ; but following the decision, in Tillotson v. Wolcott, 48 N. Y.,
188, except in the ruling that the proceeds of the judgment are exempt
for a reasonable time. The exemption has been made to continue for
one year, from analogy to L. 1850, ch. 260, § 5.]

ARTICLE SECOND,

LIEN OF AN EXECUTION UPON PERSONAL PROPERTY; LEVY UPON AND SALE OF
PERSONAL PROPERTY. RIGHTS OF INDEMNITORS OF SHERIFF.

§ 1405.* The goods and chattels of a judgment debtor, not Personal

roperty

exempt, by express provision of law, from levy and sale by virtue of bound by
263

 

(a) See the preliminary note to this article.
88 1406-1408. EXECUTIONS; EXEMPT PROPERTY. [cops crv. proc.

JUSTICH’S
MANUAL.

Order of
preference
among
execu-
tions,

Id., when
attach-

ments also
are issued.

Id.; when
issued
from court
not of
record.

an execution, and his other personal property, which is expressly
declared by law, to be subject to levy by virtue of an execution, are,
when situated within the jurisdiction of the officer, to whom an
execution against property is delivered, bound by the execution, from
the time of the delivery thereof to the proper officer, to be executed ;
but not before.(*)

[2 R. 8. 365, Part 3, ch. 6, tit. 5, § 13 (8 RS, 5th ed., 644; 2
Edm., 379), amended so.as to correspond to § 1411, post. See Hath-
away v. Howell, 54 N. Y., 97; ill v. Haynes, id., 153.)

§ 1406.* Where two or more executions against property are
issued, out of the same or different courts of record, against the same
judgment debtor, the one first delivered, to an officer, to be executed,
has preference, notwithstanding that a levy is first made, by virtue
of an execution subsequently delivered; but if a levy upon and sale
of personal property has been made, by virtue of the junior execu-
tion, before an actual levy, by virtue of the senior execution, the
same property shall not be levied wpon or sold, by virtue of the
letter.(°) (°)

[Id., § 14, amended by substituting ‘‘ judgment debtor” in place of
“defendant ”, as executions against plaintiffs are doubtless included. ]

§ 1407.* Where there are one or more executions, and one or
more warrants of attachment, against the property of the same per-
son, the rule prescribed in the last section prevails, in determining
the preferences of the executions or warrants of attachment; the
defendant in the warrants of attachment being, for that purpose,
regarded as a judgment debtor.(°)

[Id., part of § 15, amended by adding the final clause.]

§ 1408. But an execution, issued out of a court not of record,
or a warrant of attachment, granted in an action pending in a court
not of record, if actually levied, has preference over another execu-
tion, issued out of any court, of record or not of record, which has
not been previously levied.

[Ia., § 16.]
264

 

(a) Applied to Justices’ courts by § 3030, page 75. (b) Engrosser’s error for “ latter.”
(c) See 8 2408.
CHAP. XIII. | EXECUTIONS. $$ 1409-1412.

§ 1409.* The title to personal property, acquired before the aoe

5 : : «1 bona fid
actual levy of an execution, by a purchaser in good faith, and with- een
efore

out notice that the execution has been issued, is not affected by an Aa

execution delivered, before the purchase was made, to an officer, to
be executed. (*)

[Id., §17.]
§ 1410.* [Amended, 1877.] The officer, to whom an execution Execution
ma
against property is delivered, must levy upon current money of the levied

United States, belonging to the judgment debtor; and must pay it foney”

over, as so much money collected, without exposing it for sale; ex-
cept that where it consists of gold coin, he must sell it, like other
personal property ; unless he is otherwise directed, by an order of a
judge, or by the judgment in the particular cause.(*)

[Substituted for § 18 of the R. 8., which requires “current gold or
silver coin” to be paid over without sale ; whereas § 19 requires “ bills
or other evidences of debt issued....by the government of the United
States” to be sold. When this act was passed in 1876, circumstances
required that the rule, established in those two sections, should be re-
versed with respect to gold; but that state of things has now passed
away ; and the section was so framed as to allow an order to provide
for the case of the disappearance of the premium on gold, which has
now occurred. The final clause, excepting a case where the judgment
otherwise provides, has been inserted, to cover a case where the judg-
ment is, in terms, payable in coin. ]

§ 1411.* [Amended, 1877.] The officer, to whom an execution Levy upon
against property is delivered, must levy upon and sell, a bill, or other ¢yidences
evidence of debt, belonging to the judgment debtor, which was issued
by a moneyed corporation to circulate as money ; or a bond, or other
instrument for the payment of money, belonging to the judgment
debtor, which was executed and issued, by a government, state,
county, public officer, or municipal or other corporation, and is in
terms negotiable, or payable to the bearer or holder.(*)

[Section 19 of the R.8.; amended by dropping, after “moneyed
curporation ”, the words, “or by the government of the United States”,
as explained in the note to the last section, and by adding the conclud-
ing provision, authorizing a levy upon government and railroad bonds,
etc., which are now regarded, rather as chattels than as evidences of

debt.]

§ 1412.* The interest of the judgment debtor in personal prop- Interest of

bailor in
erty, subject to levy, lawfully pledged, for the payment of money, hledge -
[3+] 265 sold.

 

(a) Applied to justices’ courts by § 3030, page 75.
§ 1428.

JUSTICE'S
MANUAL.

Sale of
personal
property}
how made.

EXECUTIONS. [CODE CIV. PROC.

or the performance of a contract or agreement, may be sold, in the
hands of the pledgee, by virtue of an execution against property.
The purchaser at the sale acquires all the right and interest of the
judgment debtor, and is entitled to the possession of the property,
on complying with the terms and conditions, upon which the judg-
ment debtor could obtain possession thereof. This section does not
apply to property, of which the judgment debtor is unconditionally

entitled to the possession.(*)

[Id., § 20, amended by the addition of the concluding sentence ; and
also so as to extend somewhat its scope. ‘The original provides only
for the sale of the interest of ‘the person making such pledge”, by
virtue of an “execution against him”. This section is so drawn, that
the judgment debtor’s interest may be sold, whether he or some other
person was the pledgor, as where he has purchased the pledgor’s inter-
est ; and so as otherwise to settle the construction of the provision,
in accordance with its apparent intent, and a due regard for the rights
of third persons. It was held, in Bakewell v. Ellsworth, 6 Hill, 484,
that the sheriff must take the goods out of the pledgee’s possession,
and retain them until the sale ; and that, after the sale, he must re-
store them to the pledgee, to whom the purchaser must look. In Stief
y. Hart, 1 N. Y. (1 Comst.), 20, the court of appeals affirmed, upon
an equal division, a judgment of the supreme court, to the same effect.
The opinions delivered, in that case, by GARDINER, GRAY, and WRIGHT,
JJ., in favor of a reversal, appear to be quite conclusive, as to the
intent ot the statute, and the inconveniences and injustice resulting
from the decision of the court below. It would also seem that Trus-
low v. Putnam, 1 Keyes, 568, is in accordance with these views,
although the reasons, given in the prevailing opinion, are open to
criticism. It has also been held, by the superior court of New-York,
that the goods may be taken, by virtue of an execution against the
pledgee. Saul v. Kruger, 9 How. Pr. 569. There is, therefore, an
inconsistency, if not a conflict, in the adjudications, which furnishes
an additional reason for the amendments made by this section. ]

§ 1428.* Personal property must be offered for sale, in such lots
and parcels, as are calculated to bring the highest price. Except
where the officer is expressly authorized, by this article, to sell prop-
erty not in his possession, personal property shall not be offered for
sale, unless it is present, and within the view of those attending the
sale.(*)

[2 R. §., 367, Part 3, ch. 6, tit. 5,§ 23 (3 B.S. 5th ed. 648; 2
Edm., 381), amended by adding the exception at the beginning of the
second sentence. The lack of some equivalent expression formed one
of the principal reasons, assigned for the ruling in Bakewell v. Ells-
worth, 6 Hill, 484, mentioned in the note to § 1412, ante.]

266

 

. (a) Applied to justices’ courts by 8 3030, page 75.
CHAP. XIV.] REAL ACTIONS. §§ 1664-1665.

CHAPTER XIV.

(EXTRACTS.)

SPECIAL PROVISIONS REGULATING AOTIONS RE-
LATING TO PROPERTY.

TITLE I.—AcTIoNS RELATING TO REAL PROPERTY.

TITLE II.—Acrions RELATING To CHATTELS.

TITLE L.

elections relating to real property.

ARTICLE EIGHTH.

§ 1664. A person in possession of real property, as guardian or
trustee for an infant, or having an estate determinable upon one or
more lives, who holds over and continues in possession, after the
determination of his trust or particular estate, without the express
consent of the person then immediately entitled, is a trespasser.
An action may be maintained against him, or his executor or admin-
istrator, by the person so entitled, or his executor or administrator,
to recover the full value of the profits, received during the
wrongful occupation.

[1 R.S., 749, Part 2, ch. 1, tit.5,§ 7 (3 R.S., 5th ed., 39; 1 Edm.,,
700), condensed, but without substantial change. It was held in Liv-
ingston v. Tanner, 14 N. Y., 64, that this section changed the charac-
ter of the person holding over from that of a tenant at sufferance to
that of a trespasser, and that, therefore, no notice was necessary before
bringing an action of ejectment. |

§ 1665. A person, seized of an estate in remainder or rever-
sion, may maintain an action founded upon an injury done to the
inheritance, notwithstanding any intervening estate for life or for
years.

‘Id,, § 8, omitting the words, “ of waste or trespass ”, after “ action ”,
and substituting “founded upon” in place of “ for”’.]

267

PART IL.

Certain
persons
holding
over
deemed
trespass—
ers. <Ac-
tion
against
them.

Rever-
sioner,
etc., may
maintain
action.
§§ 1666-1668, REAL ACTIONS. [OODE CIV. PROC.

JUSTICE 8
MANUAL.

Joint
tenant,
etc., may
maintain
action
against his
co-tenant.

Action °

or
cutting
trees,
etc.

Td.; when
treble
damages
may be
recovered.

§ 1666. A joint tenant or a tenant in common of real prop-
erty, or his executor or adimninistrator, may maintain an action to re-
cover his just proportion against his co-tenant, who has received
more than his own just proportion, or against his executor or ad-
ministrator.

[Substituted for id., § 9, which reads as follows:

“One joint tenant or tenant in common, and his executors or ad-
ministrators, may maintain an action of account, or for money had
and received, against his co-tenant for receiving more than his just
proportion; and the like action may be maintained by them against
the executors or administrators of such co-tenant.”

The abolition of distinctive forms of action rendered the reconstruc-
tion of this section unavoidable. In so doing, it was necessary to avoid
disturbing the ruling in Woolever v. Knapp, 18 Barb., 265, and Wilcox
y. Wilcox, 48 id., 327, to the effect that, in the absence of any agree-
ment, or any demand to be allowed to enjoy the premises, one tenant
in common could not recover against another for use and occupation.
A provision that each should account to the other for more than his
share of the “proceeds” of the land, would at least raise the question
whether the ruling was not abrogated by the statute. It is impossible,
however, to confine the right of action to the plaintiff’s share of rents
and profits received, for the co-tenant may have received money from
various other sources; e. g., damages for a trespass, or compensation
for land taken for public use. Brinckerhoff v. Wemple, 1 Wend., 470.
This section, therefore, purposely refrains from defining the subject of
the “just proportion ”; leaving the courts to expound it in accordance
with settled rules of law.]

§ 1667. If any person cuts down or carries off any wood, un-
derwood, tree, or timber, or girdles or otherwise despoils a tree on
the land of another, without the owner’s leave; or on the common,
vr other land, of a city, village, or town, without having right or
privilege in those lands, or license from the proper officer; an action
may be maintained against him, by the owner, or the city, vil-
lage, or town, as the case may be.

[2 R.S., 338, Part 3, ch. 5, tit. 6,§ 1 (3 R.S., 5th ed., 624; 2 Edm.,
349), omitting the provision regulating the amount of damages, which
is in the next section. The word, “owner,” might raise a doubt, in
some cases, who is the person entitled to bring the action; but as it
has been used, in the same connection, since 1813 (1 R. L., 526), and
the chief questions to which it gives rise have been settled in Van Dew-
sen v. Young, 29 N. Y., 9, it has been retained.]

§ 1668. In an action brought as prescribed in the last section,
the plaintiff may state in his complaint the amount of his dam-
ages, and demand judgment for treble the sum so stated. There-

268
‘CHAP. XIV. | REAL ACTIONS.

upon, if the inquisition, or, where issues of fact are tried, the ver-
dict, report, or decision, awards him any damages, he is entitled
to judgment for treble the sum so awarded, except that in either
of the following cases, judgment must be rendered for single dam-
ages only :

1. Where the verdict, report or decision finds affirmatively that
the injury, for which the action was brought, was casual and invol-
untary ; or that the defendant, when he committed the injury, had
probable cause to believe that the land was his own.

2. Where the defendant has pleaded, and the verdict, report or
decision finds affirmatively, that the injury, for which the action
was brought, was committed by taking timber, for the purpose of
making or repairing a public road, ora public bridge; or by taking
any wood, underwood, or tree, for a like purpose, by authority of a
commissioner or overseer of highways.

[Id., §§ 2 and 3, and the part omitted from § 1 in framing § 1667
ante; remodelled for the purpose of conforming it to the modern
procedure, and by expressly requiring the defendant to establish, and
the verdict, etc., to state the facts which entitle the plaintiff to a
judgment for single damages only. It is believed that this amend-
ment is in accordance with the true construction of the statute.
Newcomb v. Butterfield, 8 Johns. 264; King v. Havens, 25 Wend.,
420 > Van Deusen v. Young, 9 Barb., 29, see p. 18. In this species of
action single damages may be awarded, although the plaintiff relies
upon the statute. Dubois v. Beaver, 25 N. Y., 123.]

§ 1669. If a person is disseized, ejected, or put out of real
property, in a forcible manner; or, after he has been put out, is
held and kept out, by force, or by putting him in fear of personal
violence, he is entitled to recover treble damages, in an action there-
for against the wrong-doer.

[Id., § 4, amended by substituting the words, “by putting him in
fear of personal violence”, in place of ‘with strong hand”. See
Willard v. Warren, 17 Wend. 257. See Bliss v. Johnson, 73 N. Y.,
529, cited fully in the note to § 2233.](*)

269

 

(a) Section 2283 is on page 826,

§ 1669.

PART II.

Treble
damages
or
forcible
entry or
detainer.
§ 1689.

JUSTICE’S
MANUAL,

ACTION FOR A CHATTEL. [copE civ. PRoc.

TITLE I.
Actions relating to chattels.

ARTICLE 1, Action to recover a chattel.
2. Action to foreclose a lien upon a chattel.

ARTICLE FIRST.
ACTION TO RECOVER A CHATTEL. :

PRELIMINARY Note. — Doubtless, the profession will welcome the
restoration to the statute book of the familiar words, “replevy ” and
*‘replevin”, after their banishment therefrom for more than a third
of acentury. Their awkward substitutes, “claim the immediate de-
livery ”, have never been able to supplant them ; indeed, the use of the
latter expression has been in practice restricted almost exclusively to
the text of the former Code. But accuracy requires the application of
the terms to be confined to the proceedings, whereby the officer takes
possession of the property. It is no longer correct to speak of an ac-
tion of replevin, since the action formerly described by that name is
commenced by an ordinary summons, and may be maintained, without
issuing any mandate to take the property in specie. But it is quite
possible to abbreviate somewhat the expression, “an action to recover
the possession of personal property”; and this has accordingly been
done, in accordance with the language used in the Revised Statutes. 2
R. 5., Part 3, ch. 8, tit. 12, §§ 1, 3, 37.

The effect of the sections relating to this action, contained in the
Code of Procedure, was to graft upon the copious provisions of the Re-
vised Statutes, a few scanty but revolutionary regulations. In this
instance, as in most others where a similar experiment was tried, the
new enactments gave rise to various difficult questions affecting the
right as well as the remedy. The chief question which arose respect-
ing the right, was, whether the action could be maintained in any case,
where the defendant had parted with the possession of the property.
After much conflict of opinion, this question was settled in accordance
with the former rule; and the general doctrine was established, that
the provisions of the Code of Procedure effected no change in those
provisions of the R.8., which prescribed the cases where the action
may be maintained. oss v. Cassidy, 27 How. Pr., 416; Hllis v. Lers-
ner, 48 Barb., 539; Latimer v. Wheeler, 1 Keyes, 468; Dunham v. Troy,
etc., Co., 3 id., 543; Nichols v. Michael, 23 N. Y., 264. These and other
authorities also held, that the mode of proceeding was regulated by
the R. 8., in all the particulars with respect to which, they were not
expressly or impliedly repealed by the Code of Procedure. See, also,

270
CHAP. XIV.] ACTION FOR A CHATTEL.

Brockway v. Burnap, 16 Barb., 309; Scofield v. Whitelegge, 49 N. Y.,
259; 12 Abb. Pr., N. 8., 320,

The task thus devolved upon the commissioners, of framing a series
of enactments, which should harmonize the system introduced by the
Code of Procedure, with that created by the R. 8., was rendered unu-
sually difficult by the revolutionary character, to which allusion has
already been made, of the changes made by the former. The two sys-
tems agreed in regarding the action as founded upon a right of pos-
session in the plaintiff, and an actual or constructive detention by the
defendant. Under each system, the plaintiff might proceed to recover
the value of the property, where it had not been replevied; and then
the proceedings did not appreciably differ, except in the form of the
judgment and execution, from those in an action for conversion or for
trespass. But with respect to the proceedings peculiar to this form of
action, the provisions of the R. 8. and those of the Code of Procedure
were based upon entirely different, and, in some respects, contradictory
theories. Under the former, the plaintiff was put in possession of the
property in controversy, by means of the process whereby the action
was commenced ; but under the latter, the action was commenced by
the service of an ordinary summons; and it was entirely immaterial
to the right of recovery, whether any process to replevy the property
had or had not been issued. If the plaintiff resorted to the latter rem-
edy, he might do so before the actual commencement of the action, or
at any time afterwards before answer. If the property was replevied,
the defendant had the right to reclaim it, by giving security to abide
the event of the action ; and then the relative positions of the parties,
with respect to the custody of the property, under the R. S. and under
the Code of Procedure, were Shemp reversed during the subsequent

proceedings.
As it was manifestly the duty of the commissioners to follow the

theory of the Code of Procedure in framing this article, it was neces-
sary to make several material changes in the provisions of the R. S.,
which were deemed to be not superseded by those of the Code of Pro-
cedure. In doing so, a doubt often arose, whether a proposed change
in the remedy might not affect the right of action, or the defence upon
the merits. In some instances, the provisions of the Code of Procedure
have been considerably modified, but not so as to disturb its general
plan. Many new provisions have been framed, chiefly to fill up the
gaps left by the latter statute, and the subsequent acts amending it, or
to settle disputed questions arising under the provisions thereof. The
sectional notes to this article are very copious, and they will sufficiently
explain, with the aid of this preliminary note, not only the object and
effect of the amendments and the new provisions, but also the reasons
why some provisions have been retained, which the reader might at
first think should have been omitted or modified.

271

§ 1689.

PART II.
§§ 1689-1690. ACTION FOR A CHATTEL. [cont crv. proc.

JUSTICE'S
MANUAL.

others.

When it
cannot be
maintain-
ed.

One of the reasons assigned by the governor for his veto of the bill
of 1878 was that the word, “ chattel”, had been substituted, in many
of the following sections of this article, for “ goods and chattels”, a
change which he characterized ag an ‘‘ unwise and unnecessary limita-
tion of an every day action”, which would lead to “great litigation
and inconveniences”. It was thought safe, by the commissioners, to
omit the words “ goods and”, not only because the word, “chattels”,
is expressly recognized by the standard works as more comprehensive
than “goods” (1 Bouv. Law Dict. 224), but because the R. 8. themselves
clearly used the two words as interchangeable. See 8§ 5, 13, 36 and
40 of the title of the R. §., already cited. But to meet the governor’s
objection, a definition was inserted in the bill of 1879, § 3343, subd.
%, post, which will, it is believed, remove all grounds of cavil. The
attempt has not been made, in the notes to this article, to collect the
numerous cases relating generally to the right to maintain the action ;
but in this connection it may be useful to refer to Barnett y. Selling,
70 N. Y., 492, holding that the action will not lie to recover a paid
check; and W. R. R. Co. v. Bayne, 11 Hun, 166, holding that it will
not lie by a principal against his agent to recover the former’s un-
issued negotiable obligations.

§ 1689.* Nothing in this title is to be so construed, as to prevent
the plaintiff from uniting, in the same complaint, two or more causes
of action, in any case specified in section 484 of this act.(*)

[Similar to § 1687.]

§ 1690.* An action to recover a chattel cannot be maintained,
in either of the following cases :

1. Where the chattel was taken by virtue of a warrant, against
the plaintiff, for the collection of a tax, assessment, or fine, issued in
pursuance of a statute of the State, or of the United States; unless
the taking was, or the detention is, unlawful, as specitied in section
1695 of this act.

2. Where it was seized by virtue of an execution, or a warrant of
attachment, against the property of the plaintiff; unless it was
legally exempt from such seizure, or is unlawfully detained. as sveci-
fied in section 1695 of this act.

3. Where it was seized by virtue of an execution, or a warrant
of attachment, against the property of a person other than the
plaintiff; and, at the time of the seizure, the plaintiff had not
the right to reduce it into his possession.(*)

272

lied to justices’ courts by § 2919, page 34. But § 1689 was thus applied by an
ae tier Suton having been intended. The rule as to joinder of causes of action
in justices’ courts is contained in § 2937, page 41.

 
CHAP. XIV.] ACTION FOR A CHATTEL. §§ 1691-1692.
[2 RB. S., 522, Part 3, ch. 8 tit. 12, 8§ 4 and5(3R.S., 5th ed, "“™*™

845 ; 2 Edm., 540) ; consolidated and reconstructed, but with no ma-
terial changes, except the addition of the following words: In subd.
1, the words, “against the plaintiff ”, and the final clause, “ unless the
taking”, etc., have been added, in accordance with Neal v. O’Brien,
% Hun, 371. See, also, Hudler vy. Golden, 36 N. Y., 446. The
word ‘‘ issued” has been inserted in the same subd. to conform the
provision more clearly to the cases referred to in the note to § 1698,
post. The words, “or of the United States”, have been added to the
same subdivision, for the reason stated in the note to the same section.
In subd. 2, the final clause has been added, for reasons stated in the
note to § 1695, post. In subd. 3, the words “from such seizure”,
have been added, after “at the time”, in accordance with the supposed
meaning of the provision; but the omission in the original of any
words fixing the time, leaves it somewhat doubtful, whether the time
referred to does not relate to the commencement of the action. This
portion of the section, as originally reported by the revisers, was aimed
at a very different rule. The application of that rule in Judd v. Foz,
9 Cow., 259, reported after the draft of Part 3 of the R. 8., was pre-
pared, probably led to the substitute made by the legislature, and the
ruling in that case countenances the amendment in the text. |

§ 1691.* Where a chattel is replevied, in an action to recover Id, after
judgment

the same, and a final judgment awarding the possession thereof to @falnst

. : laintift.
the defendant is rendered, a subsequent action to recover the same P”"”

chattel cannot be maintained by the plaintiff, for the same
cause of action. But the judgment does not affect his right to
maintain an action to recover damages, for taking or detaining the
same or any other chattel, unless it was rendered against him wpon
the merits.(*)

[Id., § 62, amended, so as to conform it to the existing mode of
procedure. In the second sentence, the words, “or any other”, have
also been added, because a judgment in replevin may be conclusive
respecting the title of other property, as well as that in controversy;
and, these words will prevent such an effect, where the judgment is for
a return, but the merits were not litigated. |

§ 1692.* An action to recover a chattel, the title to which has
been transferred to the plaintiff, since the wrongful taking, or dur-
ing the wrongful detention thereof, with or without the damages
sustained by the taking, withholding, or detention, may be main-
tained in any case, where, except for the transfer, such an action
might be maintained, by the person from or through whom the
plaintiff derives title; but not otherwise. (*)

Id.; by an
assignee.

[New. It has often been held, that the assignee of the property
might maintain the action under the Code of Procedure; but it is

[35] 273

(a) Applied to justices’ courts by § 2919, page 34.

 
§ 1695.

JUSTICE’S
MANUAL.

Affidavit
therefor,
before
com-
mence-
ment of
action.

ACTION FOR A CHATTEL. [copz crv. proc.

necessary to regulate such an action, because a literal reading of the
former statute would allow an assignee to sue in some cases where the
assignor could not. Co. Proc., § 207, subd. 4; ante, § 1690; and
post, § 1695. The fact that the question has never arisen, affords no
reason for not providing against its arising in future, because this
article supersedes the provisions of the R. 8., which would doubtless
control in such cases by analogy. In Vogel v. Badcock, 1 Abb. Pr.,
176, a doubt was suggested whether the damages could be assigned ;
this section will settle that question. ]

§ 1695.* The affidavit, to bedelivered to the sheriff, as pre-
scribed in the last section, must particularly describe the chattel to
be replevied ; and must contain the following allegations:

1. That the plaintiff is the owner of the chattel, or is entitled to
the possession thereof, by virtue of a special property therein; the
facts with respect to which must be set forth.

2. That it is wrongfully detained by the defendant.

3. The alleged cause of the detention thereof, according to the
best knowledge, information, and belief of the person making the
affidavit.

4, That it has not been taken by virtue of a warrant, against the
plaintiff, for the collection of a tax, assessment, or fine, issued in
pursuance of a statute of the State, or of the United States; or, if it
has been taken under color of such a warrant, either that the taking
was unlawful, by reason of defects in the process, or other causes
specified, or that the detention is unlawful, by reason of facts speci-
fied, which have subsequently occurred.

5. That it has not been seized by virtue of an execution or war-
rant of attachment, against the property of the plaintiff, or of any
person from or through whom the plaintiff has derived title to the
chattel, since the seizure thereof; or if it has been so seized, that it
was exempt from the seizure, by reason of facts specified, or that its

‘detention is unlawful, by reason of facts specified which have subse-

quently occurred.
6. Its actual value.(*)

[This section was taken from Co. Proc., § 207, with several amend-
ments. The provision of the Co. Proc. was founded upon § 7, subd.
1 of the R.8.; but the latter was greatly expanded, the most import-
ant change made being the addition of the clause which authorized
property taken under legal process to be replevied, if it was exempt,
etc. But evidently if\such a change was to be made it should have
gone further, for if the original taking under legal process can be in-

204

 

(a) Applied to justices’ courts, with some modification, by § 2920, page 35.
CHAP. XIV.] ACTION FOR A CHATTEL.

quired into, the detention after the process has ceased to be operative,
as where an execution has been collected from other property, should
also be inquired into, Accordingly in subd. 4 and 5 of this section
amendments have been made to cover the case suggested. The re-
maining alterations, stated in detail, are the following: In the intro-
ductory sentence, the words, “by the plaintiff or by some one in his
behalf”, have been omitted, as the subject is provided for in § 1712,
post; and the words, “contain the following allegations”, have been
substituted for “showing”, so as to settle a doubtful construction.
Subd. 4 of the original has been divided into two subdivisions (subd.
4 and subd. 5), so as to remove the doubt, respecting the property to
which it applies, suggested in the note to § 1690, ante. The words,
“against the plaintiff”, have been added in subd. 4 of this section, for
the reason stated in the note to § 1690, ante. In the same subd., the
words “of the State or of the United States”, have been added in ac-
cordance with the supposed meaning of the original, as interpreted in
O Reilly v. Good, 42 Barb., 521; 18 Abb. Pr., 106; and Niagara LHlevat-
ing Co. v. McNamara, 2 Hun, 416; and the remainder of the subdivision,
following those words, is new. By the latter amendment, the provision
is made to conform to § 1690, subd. 1, ante, as its original was interpreted
in People v. Albany Com. Pleas,.? Wend., 485; Wright v. Briggs, 2
Hill, 77; Stockwell v. Veitch, 38 Barb., 650; 8. C., 15 Abb. Pr., 412 ;
and Hudler vy. Golden, 36 N. Y., 446. Inacase where the action could
have been maintained under this subdivision, as thus interpreted, it was
difficult for a conscientious man to make the necessary affidavit, as the
original statute read. In subd. 5, the words, “or of any .... seizure
thereof ”, have been added, so as to conform the provision to § 1692,
ante. The final clause of the subdivision is also new, but it appears
to need no special explanation.]

§ 1697.* Where the affidavit describes two or more chattels of
the same kind, it must state the number thereof, and where it de-
scribes a chattel in bulk, it must state the weight, measurement, or
other quantity. Where it describes two or more chattels to be re-
plevied, it may, at the election of the plaintiff, state the aggregate
value of all; or, separately, the value of any chattel or of any class
of chattels, and the aggregate value of the remainder, if any. Where
it states separately the value of one or more chattels or classes of
chattels, the defendant may require, as prescribed in the following
provisions of this article, the return of any or all of the chattels or
classes of chattels, the value of which is thus stated, or of the por-
tion thereof which has been replevied. If he procures such a return,
the remainder must be delivered to the plaintiff, except as is other-
wise prescribed in this article.(*)

[New in form. The first sentence guards against the possibility of
confusion, growing out of the use of the word, “ particularly”, in §
1695, ante, since the repeal of 2 R.8., 523, Part 3, ch. 8, tit. 12, § 6

275

 

(a) Applied to justices’ courts by § 2920, p. 35, and § 2925, p. 37.

§ 1697.

PART Il,

Id.; where
several
chattels
are to be
replevied.
§§ 1699-1700. ACTION FOR A CHATTEL. [copE crv. proc.

JUSTICE’S

MANUAL,

Plaintiff’s
undertak-
ing for
replevin.

How
chattel to
be re-
plevied.

i Edm., 540), which incidentally defined the meaning of that word.
t is also designed to abrogate the rule, which obtained under the for-
mer practice, that if all the goods could not be taken, the plaintiff
might refuse to accept any, and require the sheriff to arrest the defend-
ant. Lowrey v. Mansfield, 3 How. Pr., 88.

This rule appears to have had no solid foundation of principle; and
as the statute now requires that concealment, etc., must be proved,
before the defendant can be arrested, it would be of little or no
advantage to the plaintiff, if indeed it applies to the modern
procedure. The object of the remainder of the section is to carry
out more effectually the scheme, introduced by the Code of Pro-
cedure, of allowing the defendant to reclaim the property. Under
the latter statute he must have reclaimed the whole or none. Many
cases may be suggested, where he ought to be allowed to reclaim a
part; for instance, where he justifies as to that part, and denies the
taking or detention of the remainder. The amendment does not
cover all the cases of this description, which may occur, for the plaint-
iff may prevent a return of part, by stating the value in gross; and
there are controlling reasons why it is not expedient to compel him
always to state the value by items. But the subsequent sections of
this article offer him many inducements to state it in that form, where
he can do so. ]

§ 1699.* The undertaking to be delivered to the sheriff, with a
requisition to replevy a chattel, must be executed by at least two
sureties, who must be approved by the sheriff. It must be to the
effect, that the sureties are bound in a specified sum, not less than
twice the value of the chattel, as stated in the affidavit, for the
prosecution of the action ; for the return of the chattel to the defend-
ant, if possession thereof is adjudged to him, or if the action
abates, or is discontinued, before the chattel is returned to the defend-
ant; and for the payment to the defendant of any sum, which the
judgment awards to him against the plaintiff.(*)

[Co. Proc., part of § 209, amended as follows; The words, “two
sureties”, have been substituted in place of “one or more sufficient
sureties”, so as to require the plaintiff to furnish two sureties, as the
defendant is under the like necessity where he reclaims the property.
The words, ‘‘ or is discontinued”, have also been inserted chiefly in
order to remove the real or supposed necessity of noticing the cause
for trial and taking judgment, if the defendant, after a discontinuance,
wishes to enforce the undertaking. Wilson v. Wheeler, 6 How. Pr., 49.
Held, in Harrison v. Wilkin, 69 N. Y., 412, that the sureties are
bound by the recitals in the undertaking, though it was not delivered
to the sheriff, the statutory formalities having been waived by the
parties. ]

§ 1700.* If any chattel, described in the affidavit, is found in
the possession of the defendant, or of his agent, the sheriff, to
276

 

(a) Applied to justices’ courts with some modifications, by @ 2920, p. 35.
CHAP. XIV.] ACTION FOR A CHATTEL. §§ 1701-1702.

aig a aye : ‘ PART I
whom an affidavit, requisition, and undertaking are delivered, as

prescribed in the foregoing sections of this article, must forthwith
replevy it, by taking it into his possession. He must thereupon,
without delay, serve on the defendant a copy of the affidavit, requi-
sition, and undertaking, by delivering the same to him personally,
if he can be found within the county ; or, if he cannot be so found,
to his agent, if any, from whose possession the chattel is taken ; or,
if neither can be found within the county, by leaving the copy at
the usual place of abode of either, with a person of suitable age and
discretion.(*)

[Co. Proc., the remainder of § 209, amended by the substitution of
‘any chattel” for “the property”, in accordance with § 1698, ante;
and otherwise so as to render the meaning clearer. It was held, in
Bullis vy. Montgomery, 50 N. Y., 352, that the requisition protects the
sheriff, where the property is found in the possession of the defendant,
but not otherwise; but actual possession will protect the sheriff, al-
though there has been a transfer of title and a constructive change of
possession. See, also, Otis vy. Williams, 70 N, Y., 208.]

§ 1701.* If any chattel, described in the affidavit, is secured or I4.; how

taken
concealed in a building or inclosure, the sheriff must publicly de- foag,
mand its delivery. If it is not delivered, pursnant to the demand, oe
he must cause the building or inclosure to be broken open, and
must take the chattel into his possession.(*)

[Co. Proc., § 214, amended by adding the words, ‘secured or”,
which were in the corresponding section of the Revised Statutes. 2
R.8., 524, Part 3, ch. 8, tit. 12, $10 (2 Edm., 542). The Revised
Laws used the word “detained”. 1 R. L. 92, § 3. It seems that the
word, ‘‘ concealed”, 1s not sufficiently comprehensive ; for the goods
may bein plain sight. The last clause of Co. Proc., § 214, is un-
necessary. |

§ 1702.* A sheriff, who has replevied a chattel, must retain it in Replevied
his possession, keeping it in a secure place, until the person, who is how kept,
entitled to the possession thereof, is ascertained, as prescribed in this
article. He must then deliver it to that person, upon request and
payment of his lawful fees, and necessary expenses for taking and
keeping it, as taxed by a judge of the court, or the county judge of
the county where the chattel was replevied, upon such a notice as
the judge deems proper.(*)

[Co. Proc., § 215, amended by adding the final clause, commencing
with the words, “ as taxed ”.]

av

 

(a) Applied to justices’ courts, with some modifications, by § 2922, p. 35,
§ 1704.

JUSTICE'S
MANUAL,

When
defendant
may re-
claim
chattel;
proceed”
ngs there-
upon,

ACTION FOR A CHATTEL. [cope crv. proc.

§ 1704.* The defendant, if he does not except to the plaintiff's
sureties, as prescribed in the last section, may, within the time
allowed to him for such an exception, serve upon the sheriff, a notice
that he requires a return of the chattel replevied. With the notice,
he must deliver to the sheriff the following papers :

1. An affidavit, containing an allegation, either that the defend-
ant is the owner of the chattel, or that he is lawfully entitled to the
possession thereof, by virtue of a special property therein, the facts
with respect to which must be set forth.

2. An undertaking, executed by at least two sureties, to the effect
that they are bound, in a specified sum, not less than twice the value
of the chattel, as stated in the affidavit of the plaintiff, for the de-
livery thereof to the plaintiff, if delivery thereof is adjudged, or if
the action abates in consequence of the defendant’s death; and for
the payment to him of any sum, which the judgment awards against
the defendant.

Within three days after serving a notice, requiring a return of the
chattel, as prescribed in this section, the defendant must serve upon
the plaintiff’s attorney, notice of the justification of the sureties to
the undertaking.(*)

[Co. Proc., § 211, first sentence, amended as follows. The words,
‘‘within the time allowed to him for such exception”, in the intro-
ductory clause, have been added; they are in accordance with the
concluding sentence of Co. Proc., § 211, with which the expression,
used at the commencement of the same section, will sometimes conflict.
M’Cann v. Thompson, 13 How. Pr., 380. Subd.1 is new. Justice
requires that a defendant, who reclaims, should contradict or avoid the
plaintiff’s affidavit by his own affidavit or that of his agent. See §
1712, post. In subd. 2, the words, “or if the action abates in conse-
quence of the defendant’s death”, have been added, to make the under-
taking correspond, in that respect, with the plaintiff’s. See ante, §
1699. The concluding sentence is also new. It is designed, in con-
nection with the second sentence of the next section, to remove an
abuse for which the Code of Procedure left room. There was, under

that statute, no limit to the time within which the defendant’s sureties
might justify; and he might accordingly have required the sheriff to

.retain the property during the entire litigation. Graham v. Wells, 18

How. Pr., 376. This was unjust to the sheriff, as well as to the plaintiff.
A defendant who obtains the property from the sheriff, by giving an
undertaking for its return, is estopped from alleging that it was not

in his possession when the action was commenced. Diossy v. Morgan,
v4.N. Y., 11.]

278

 

(a) Appiied to justices’ courts, with some modification, by § 2925, p. 37.
CHAP. XIV.] ACTION FOR A CHATTEL. §§ 1709-1710.

§ 1709.* At any time before a chattel, which has been replevied,
is actually delivered to either party, if a person, not a party to the
action, claims, as against the defendant, a right to the possession
thereof, existing at the time when it was replevied, an affidavit may
be made and delivered to the sheriff in his behalf, stating that he
makes such a claim ; specifying the chattel or chattels to which it
relates, if two or more chattels have been replevied, and the claim
relates only to part of them; and ‘setting forth the facts upon
which his right of possession depends. In that case, the sheriff may,
in his discretion, before he delivers the chattel to the plaintiff, serve
upon the plaintiffs attorney a copy of the affidavit, with a notice
that he requires indemnity against the claim. If the indemnity is
not furnished, within a reasonable time after the plaintiff becomes
entitled to the delivery of the chattel, the sheriff may, in his dis.
cretion, deliver it to the claimant, without incurring any liability to
the plaintiff, by reason of so doing.(*)

[This and the next two sections are substituted for Co. Proc., § 216.
It is believed, that the reasons for the changes made by this section
will be apparent, upon comparing it with the corresponding provisions
of the Code of Procedure. The proceeding is at the risk of the
sheriff; but the original statute not only leaves the door open to various
controversies concerning matters of detail, but is very obscure respect-
ing the duty of the sheriff, if the indemnity is not furnished. Held
by the court of appeals, under Co. Proc., § 216, that a coroner, to whom
replevin process against the sheriff is delivered, stands in alike position
as the sheriff, and that a third person might make a claim in such a case
under the original section; that 2 R.S., 285, §§ 55, 56 (not repealed
in 1880), apply to the service of the papers, where such a claim is
made; that the claimant might maintain an action for conversion
against the officer as soon as the indemnity was given and the property
delivered to the plaintiff; and that when indemnity was so given, the
officer was bound to deliver the property to the plaintiff. Manning
v. Keenan, 73 N. Y., 45.]

§ 1710.* A person, not a party to the action, who has served
an affidavit, as prescribed in the ast section, may maintain an
action against the sheriff, who has delivered the chattel to the
plaintiff, to recover his damages, by reason of the taking, deten-
tion, or delivery of the chattel. But the summons in such an
action must be issued, within three months after the delivery
of the chattel to the plaintiff, and must be served, within three
‘months after it is issued. An action cannot be maintained against a

279

 

(a) Applied to justices’ courts, substituting the constable for the sheriff, and with other
modifications, by § 2929, page 38.

PART II.

Claim of

title by

third
person ;
proceed-
ings there-
upon.

Action
against
sheriff
upon such
claim.
§ 1711, ACTION FOR A CHATTEL. [copz crv. proc.

JUSTICE'S . . é .
mANvAL. sheriff, by a person so entitled to make a claim, except as prescribed

in this section.(*)

[Substituted for the following clause of Co. Proc., § 216, “And no
claim to such property by any other person than the defendant or his
agent, shall be valid against the sheriff, unless made as aforesaid”.
Whether, irrespective of any statutory provision, a sheriff, who has re-
plevied property, is liable to a third person, is yet an unsettled ques-
tion. Stimpson v. Reynolds, 14 Barb., 506; foster v. Pettibone, 20
id., 850; Rogers v. Weir, 34 N. Y., 463. But it has been held, by the
special term of the New York common pleas, that the clause cited
from the Code of Procedure had the effect to make him liable. Hdger-
ton v. ftoss, 6 Abb. Pr., 189. This was doubtless the intention of the
legislature ; and it is expressed unmistakably in the first and last sen-

tences of this section. The object of the second sentence is apparent.
See Clearwater vy. Brill, 63 N. Y., 627. ]

qadempt'y §1711.* The ‘indemnity, to be furnished to the sheriff by the
against

such plaintiff, as prescribed in the last section but one, must consist of a
written undertaking to him, executed by at least two sureties, to
the effect that they will indemnify him against any liability for dam-

; ages, costs, or expenses, to be incurred in an action brought against

. him, by the claimant, or a person deriving title from or through
the claimant, by reason of the taking or detention of the chattel, or
its delivery to the plaintiff, not exceeding a sum, to be specified in’
the undertaking, which must be at least five hundred dollars, and
not less than the actual value of the chattel claimed, and two hun-
dred and fifty dollars in addition thereto. Each of the sureties,
besides possessing the other qualifications required by law, must be
afreeholder or a householder of the sheriff’s county. The- sheriff,
before delivering the chattel, may require the persons offered as
sureties to submit to an examination, before the officer who takes the
acknowledgment of the undertaking, as where persons are offered
to him as bail upon an arrest. The sureties are entitled to be sub-
stituted as defendants in an action, brought as prescribed in the last
section, as if the chattel had been levied upon by virtue of an execu-
tion.(*)
5 ae for that part of Co. Proc., § 216, which relates to the
indemnity. By § 812, ante, the sureties must justify in double the
amount specified. The amendments are designed to clear up ob-
scurities in matters of detail and of substance, thus removing oppor-

tunities for litigation and the possibility of injustice, for which there
was abundant room in the original.]

280

 

(a) Applied to justices’ courts, substituting the constable for the sheriff, and with other
\ modifications, by § 2929, page 38.
CHAP. XIV.] ACTION FOR A CHATTEL. S§ 1712-1722.

PART II.

§ 1712.* The affidavit, to be delivered to the sheriff in behalf when

of the plaintiff, with a requisition toreplevy a chattel, may be made
by the plaintiff’s agent or attorney, if the material facts are within
his personal knowledge; or if the plaintiff is not within the county
where the attorney resides, or has his office, or is not capable of
making the affidavit. The affidavit, to be delivered to the sheriff,
either in behalf of the defendant, with a notice that he requires the
return of the chattel, or in behalf of a person, not a party, who
makes a claim as prescribed in section 1709 of this act, may be made
by an agent or attorney, if the material facts are within his personal
knowledge, or if the defendant or claimant, as the case may be, is
not within the county where the property was replevied, and capa-
ble of making the affidavit. Where the affidavit is made by an
attorney or agent, he must state therein what allegations, if any,
are made upon his information and belief; and he must set forth therein
the grounds of his belief, as to all matters not stated upon his
knowledge, and the reason why the affidavit is not made by the
party or the caimant.(*)

[New ; except that Co. Proc., § 207, authorized the plaintiff's affi-
davit to be made ‘‘ by some one in his behalf”. This section extends
the like permission to the two other affidavits of like character; de-
fines the cases where the party’s oath may be dispensed with, and the
persons who may make the affidavit in his place ; and regulates the
form of the affidavit in such cases. Upon all these points, the original
statute was silent, and tne practice unsettled. The section has been
framed in general conformity to §§ 525 and 526, ante. It is more
liberal than the practice under the R.8., with respect to the plaint-
ifPs affidavit. Cutler v. Rathbone, 1 Hill, 204.]

§ 1722.* Where the plaintiff recovers a chattel which was
injured, or otherwise depreciated in value, while it was in the pos-
session or under the control of the defendant, under such cirewn-
stances, that the plaintiff might recover damages for the injury or
depreciation, in an action brought against the defendant therefor,
he may recover the same damages, in an action brought as pre-
scribed in this article. In that case, he must set forth the facts in
his complaint, and demand judgment for damages accordingly.(’)

[New ; suggested by one of the rulings in Smith v. Orser, 43 Barb.,
187, where it was said that, in replevin against a sheriff, the plaintiff
might insert in his complaint a count for injuring the property, on the
ground that both arose out of the same transaction. This proposition

[36] 281

 

agent,

etc., may
make
affidavit
for re-
plevin or
return.

Damages,
when
chattel
injured,
etc., by
defendant.

(a) The same by $$ 2920, 2925 and 2929, pp. 35-38. (b) Applied to justices’ courts by § 2931, p. 39.
8 1726.

JUSTICEH'S

MANUAL,

Verdict,
etc., what
to state.

ACTION FOR A CHATTEL. [copz civ. Proc.

was not referred to in the opinions delivered upon the appeal, 42 N.
Y., 132, and it was probably unnecessary to the decision. In Brews-
ter vy. Silliman, 38 N. Y., 423, Wooprurr, J., ruled, that
damages for the depreciation of the property may be recovered as
damages for its detention ; but as that ruling was probably not neces-
sarily included in the decision, it seemed proper to provide for the
subject by an express enactment. In Allen v. Fox, 51 N. Y., 562, it
was held that the value of the use of the property during the deten-
tion wasa proper item of damages; but the question which this sec-
tion aims to settle was not raised. See, also, V. Y. Guaranty and In-
demnity Co. v. Flynn, cited in the note to § 1726, post.]

§ 1726.* The verdict, report, or decision must fix the damages,
if any, of the prevailing party. Where it awards to the plaintiff a
ehattel, which has not been replevied, or where it awards to the
prevailing party a chattel, which has been replevied, and afterwards
delivered by the sheriff to the unsuccessful party, or to a person not
a party, it must also, except in a case specified in the next section,
fix the value of the chattel, at the time of the trial.(*)

[Co. Proc., § 261, first sentence, amended in accordance with the
last section; also, by adding the words, ‘‘at the time of the trial ”.
When the commissioners’ first draft of this article was prepared, the
rule of law was unsettled, with respect to the time, as of which the
value of the property should be fixed, where it has increased or
diminished in value, since it was replevied, or the action commenced.
The commissioners accordingly proposed in the section of their draft,
which corresponds to this section, that where the plaintiff recovers
and the chattel has not been replevied, the value should be fixed as of
the time when the action was commenced ; but that where the chattel
had been replevied and delivered to the unsuccessful party, the pre-
vailing party, either plaintiff or defendant, should be entitled to the
value as of the time when the chattel was replevied. Since the draft
was prepared, the court of appeals, in the MW. Y. Guaranty and In-
demnity Co. v. Flynn, 55 N. Y., 653, have decided that where the
successful party cannot procure a return or recovery of the chattel,
the sum to be recovered is its value at the time of the trial. The
opinion delivered in that cause is not published; and, in the absence
of any guide to the conclusions which the court reached, it is per-
mitted to doubt whether the commissioners’ original proposition would
not have established a more equitable rule. But as the rule of law has
thus been definitely settled, it was judged proper to follow the ruling in
this section. The section also provides that a delivery to a third per-
son shall have the same effect, with respect to a judgment for the re-
covery or the return of the property, as a delivery to the unsuccessful
party. The statute, which permits such a delivery, is silent respect-
ing its effect in this particular ; but the rule appears to be just, be-
cause either party can prevent the delivery to the third person, and
the party, who is adjudged to have been in the wrong, should be made
responsible for any loss, in consequence of his not having prevented
it. In this section, and, generally, throughout this article, the ex-
pressions of the Code of Procedure describing the mode in which the

282

 

Applied to justices’ courts, with some modifications, by § 2931, p. 39. As the “next
se APPS 1727) i not so applied, the exception at the end of this section does not take

effect in justices’ courts; and in those (—*+*=s—*e20 enacifled in 6 1726. the verdict or
decision must always fix the value. =
CHAP. XIV. ] ACTION FOR A CHATTEL.

property has been disposed of have been discarded in favor of others,
which are more precise. For instance, the expression, “if the prop-
erty have not been delivered to the plaintiff”, includes a case, where
the property was lost or destroyed in the sheriffs hands. In that
event, it is presumed that the expression, as used in Co. Proc., § 261,
includes two opposite cases. ]

§ 1730.* Final judgment for the plaintiff must award to him
possession of the chattel recovered by him, with his damages, if
any. If a chattel recovered was not replevied, or if, after it was
replevied, it was delivered to the defendant, or to a person not a
party, as prescribed in this article, the final judgment must also
award to the plaintiff the sum fixed as the value thereof, to be paid
by the defendant, if possession thereof is not delivered to the plaint-
iff. If the defendant has demanded judgment for the return of a
chattel, which was replevied, and afterwards delivered to the plaint-
iff, or to a person not a party, as prescribed in this article, final
judgment in his favor therefor must award to him possession thereof,
with his damages, if any; and it must also award to him the sum
fixed as the value thereof, to be paid by the plaintiff, if possession
is not delivered to the defendant: But if the case is one of those
specified in section 1727 of this act, final judgment in favor of the
defendant must award to him the sum, fixed as therein specified,
and if it is not collected, the delivery of the chattel; or, if the
chattel has not been replevied, or has been returned to him after
replevin, that he is entitled to possession thereof, until the sum so
awarded is collected, or otherwise paid. The judgment may be
docketed, and the docket thereof creates a lien, as if it was a jude-
ment for the full amount of the money, including costs, which it
awards, either absolutely or conditionally.(*)

[The concluding sentence has been taken from 2 R. 8., 532, Part 3,
ch. 8, tit. 12, § 61 (2 Edm., 550). The remainder is a substitute for
Co. Proc., § 277, the provisions of which are not essentially varied ;
but the scope of the section is expanded, so as to conform it to the
amendments and the new provisions, contained in the preceding sec-
tions of this article. The chief change consists in the insertion of the
fourth sentence; which has the effect of reversing, in the cases within
§ 1727, ante, the usual order of the alternative requirements. This is
proper, for the reasons which required the enactment of that section.

Provision has been made in subdivision first of the next section, for a
special execution, adapted to this form of judgment. ]

283

 

(a) Applied to justices’ courts, substituting the constable for the sheriff, by § 2931, p. 39,
But $1727 and subd. 1 of § 1731, are not so applied ; and the reference to § 1727, in § 1730, is
nugatory in a justices’ court.

§ 1730.

PART I.

Final judg-
ment;
docketing
the same.
§§ 1731-1733. ACTION FOR A CHATTEL. [copgctrv. PRoo.

USTICE'S

J
MANUAL.
Execu-

§ 1781.* An execution for the delivery of the possession of a

tion; con- Chattel, and to satisfy, out of the property of the judgment debtor,

tents
thereof,

Id. ;
sheriff’s
power to
take
chattel.

Action on
under-
taking;
when
maintain-
able.

a sum of money contingently awarded against him, must contain, in
addition to the other matters prescribed by law, the following direc-
tions :

1. Where the judgment is rendered in favor of the defendant, in
a case specified in section 1727 of this act, the execution must re-
quire the sheriff to deliver possession of the chattel to the defend-
ant, unless the plaintiff, before the delivery, pays to him the sum of
money awarded to the defendant, with interest and the sheriff’s
fees; and, in case the chattel cannot be found within his county,
then to satisfy that sum out of the property of the plaintiff.

2. In any other case, where the judgment awards a sum of money,
if possession of the chattel is not delivered to the prevailing party,
the execution must require the sheriff, if the chattel cannot be
found within his county, to satisfy the sum so awarded, with inter-
est and his fees, out of the property of the party against whom the
judgment is rendered.

A direction to satisfy a sum of money out of property, as pre-
scribed in this section, must be in the form required by law fora
like direction, where an execution against property is issued upon a
judgment for a sum of money.(*).

[The original provisions of law relating to executions in replevin, are
contained in Co. Proc., § 289, subd. 4, and 2 R.S., 530, Part 3, ch. 8,
tit. 12, § 50 (3 R.S., 5th ed., 847; 2 Edm., 548). Held, in Hoffman
v. Conner, 76 N. Y., 121, that, under an execution in the usual form,
it is the duty of the sheriff to take and deliver the property, in whose-
soever possession it may be found.]

§ 1732.* For the purpose of taking possession of a chattel, by
virtue of such an execution, the powers of the sheriff are the same,

as where he is required to replevy a chattel.(*)

[The first sentence of § 51 of the same title of the R. 5. The second
sentence, providing that chattels so delivered “ shall be irrepleviable”,
has been omitted. It is unnecessary, in view of § 1691, ante, and the

changes, made by the Code of Procedure, and retained in this article,
giving the defendant the right to reclaim the property. ]

§ 1733.* A plaintiff, who has recovered a final judgment, can-
not maintain an action against the sureties in an undertaking, given
284

 

(a) Applied to justices’ courts, substituting the constablo for the sheriff, by § 2931, p. 39.
But subd. 1 of § 1781, is not so applied.
CHAP. XIv.] ACTION FOR A CHATTEL. 8§ 1734-1737.

in behalf of the defendant to procure a return of the chattel,  dmalaidati

against the bail of a defendant, who has been arrested, until after
the return, wholly or partly unsatisfied or unexecuted, of an execu-
tion in his favor for the delivery of the possession of the chattel, or
to satisfy a sum of money out of the property of the defendant, or
for both purposes, as the case requires. A defendant, who has re-
covered a final judgment, cannot maintain an action against the
sureties in the plaintif’s undertaking, given to procure a replevin,
until after a like return of a similar execution against the plaintiff.(*)

[2 R. 8., 533, Part 3, ch. 8, tit, 12, § 64 (8 R.S., 5th ed. 848; 2 Edm.,
551), adapted to the modern procedure and enlarged in its scope. It
was held in Livingston v. Hammer, 7 Bosw., 670, that this provision is
not applicable to the defendant’s undertaking for a return; and in
Letson v. Dodge, 61 Barb., 125, there is a dictum, that it is not appli-
cable to any undertaking given under the Code of Procedure. This
section will abrogate these rulings. |

§ 1734.* In such an action against the sureties, the sheriffs re- sherit's
return,
turn to the execution is presumptive evidence of a failure to deliver, gvidence

or to return a chattel, or to pay a sum of money, according to the
terms of the undertaking.(*)

[Id., part of § 65, adapted to the present practice. The form of the
modern undertaking dispenses with the provisions of that section,
respecting the measure of damages. Section 66 is rendered unneces-
sary by § 1727, ante.]

§ 1735.* It is not a defence to such an action, that the chattel tnyjury,:
was injured or destroyed, after it was replevied, unless the injury or defence.
destruction was effected by the act, or with the consent of the
plaintiff in the action, or occurred after the chattel was taken by
virtue of the execution.(*)

[New; designed to settle the disputed question, whether a destruc-
tion, etc., by the act of God, discharges the undertaking. See Carpen-
ter v. Stevens, 12 Wend., 589; contra, Suydam v. Jenkins, 3 Sandf.
8. C., 614. The reasoning in the latter case, pp. 644, 645, appears to
be quite conclusive. ]

ARTICLE SECOND.

ACTION TO FORECLOSE A LIEN UPON A CHATTEL.

§ 1737. An action may be maintained to foreclose a lien upon Action;

when and
a chattel, for a sum of money, in any case where such a lien exists pa
main-
285 tainable.

 

(a) Applied to justices’ courts, substituting the constable for the skeriff, by § 2931, p. 39.
"

§§ 1738-1739. FORECLOSURE OF CHATTEL LIEN. [cons ctv. proc.

JUSTICE'S
MANUAL.

Warrant
to seize
chattel ;
proceed—
ings there-
upon.

Judgment.

at the commencement of the action. The action may be brought
in any court, of record or not of record, which would have jurisdic-
tion to render a judgment, in an action founded upon a contract, for
a sum equal to the amount of the lien.

[Founded upon L. 1869, ch. 738, §1 (7 Edm., 469), which hag
been extended so us to embrace every case where alien has been created,
either at common law, by statute, or by special agreement, with the
exceptions specified in § 1741, post. See, for statutory liens, L.
1872, ch. 498 (9 Edm., 376); L. 1860, ch. 446 (4 Edm., 680);
L. 1879, ch. 530. It was held, in Briggs y. Oliver, 68 N. Y.,
336, that an action would lie in equity to foreclose a chattel mort-
gage. It is believed that this article will afford a much simpler,
cheaper, and more speedy method of foreclosing such a mortgage than
by an ordinary equitable action; and that it will be very beneficial in

many other cases of liens, where the remedy is difficult and expensive,
and the rights of the parties in pursuing the same, obscure. |

§ 1738.* Where the action is brought in the supreme court, a
superior city court, the marine court of the city of New-York, or a
county court, if the plaintiff is not in possession of the chattel, a war-
rant may be granted by the court, or a judge thereof, commanding
the sheriff to seize the chattel, and safely keep it to abide the final
judgment in the action. The provisions of title third of chapter
seventh of this act apply to such a warrant, and to the proceedings
to procure it, and after it has been issued, as if it was a warrant

‘of attachment, except as otherwise expressly prescribed in this

article.(*)

[New. This section will extend the beneficial operation of the
statute, by providing for cases which the act of 1869 does not reach,
or in which the remedy may be ineffectual for want of any process to
seize the property. Of course this section will not revive a lien, which
has been lost in consequence of parting with the property, because §
1737, ante, is in terms confined to a case, where the lien existed at the
commencement of the action. |

§ 1739.* In an action brought in a court specified in the last
section, final judgment, in favor of the plaintiff, must specify the
amount of the lien, and direct a sale of the chattel to satisfy the
same and the costs, if any, by a referee appointed thereby, or an
officer designated therein, in like manner as where a sheriff sells
personal property by virtue of an execution; and the application by
him of the proceeds of the sale, less his fees and expenses, to the

payment of the amount of the lien, and the costs of the action. It
286

 

(a) Applied to Justices’ courts by § 1740, post.
cHAP. xIv.| FORECLOSURE OF CHATTEL LIEN. §§ 1740-1741.

PART IL.
must also provide for the payment of the surplus to the owner of the

chattel, and for the safe keeping of the surplus, if necessary, until it
is claimed by him. If a defendant, upon whom the summons is
personally served, is liable for the amount.of the lien, or for any
part thereof, it may also award payment accordingly.(*)

[From § 3 of the act of 1869, with the addition of the last
sentence. |

§ 1740. Where the action is brought in a court, other than one Action _
of those specified in the last section but one, if the plaintiff is not in court
possession of the chattel, a warrant, commanding the proper officer
to seize the chattel, and safely keep it to abide the judgment, may
be issued, in like manner as a warrant of attachment may be issued
in an action founded upon a contract, brought in the same court;
and the provisions of law, applicable to a warrant of attachment,
issued out of that court, apply to a warrant, issued as prescribed in
this section, and to the proceedings to procure it, and after it has
been issued; except as otherwise specified in the judgment. <A
judgment in favor of the plaintiff, in such an action, must correspond
to a judgment, rendered as prescribed in the last section, except that
it must direct the sale of the chattel by an officer to whom an execu-
tion, issued out of the court, may be directed ; and the payment of
the surplus, if its safe keeping is necessary, to the county treasurer,
for the benefit of the owner.

[Partly new ; and partly taken from §§ 1-3 of the act of 1869.]

§ 1741. This article does not affect any existing right or remedy ‘
Applica

to foreclose or satisfy a lien upon a chattel, without action; and it {22°
: . article.

does not apply to a case, where another mode of enforcing a lien

upon a chattel is specially prescribed by law.

{Id., § 5, amended by the addition of the final clause, to prevent the
possibility of this article clashing with certain special remedies; for
instance, those given by the statute relating to liens upon vessels, etc.,
by material men. Sections 2 and 4 of the act of 1869 are omitted as
unnecessary]

287

 

(a) Applied to justices’ courts by § 1740.
§ 17%. ACTION AGAINST A CORPORATION. [copz crv. PROO.

JUSTICE’S:
MANUAL.

CHAPTER XV.

(EXTRACTS. )

SPECIAL PROVISIONS, REGULATING OTHER PAR-
TICULAR ACTIONS AND RIGHTS OF ACTION, AND
ACTIONS BY OR AGAINST PARTICULAR PARTIES.

TITLE II. — Actions RELATING TO A CORPORATION.

TITLE III. — Actions RELATING TO THE ESTATE OF A DECEDENT.

TITLE IV. — Ornmer sprcraL ACTIONS AND RIGHTS OF ACTION.
TITLE V.— Orger acrions BY OR AGAINST PARTICULAR PARTIES.
TITLE IL.

Actions relating to a corporation.

ARTICLE 1. Action by a corporation, and action against a corporation, to recover
GaMapes. OF PLOPETY, cas ae de deiserrwen enavenscenemedonsies

5. Provisions applicable to twoor more of the actions specified in this

GIG. aes oreadease ee Phew ds seis gene SE SETA” eGAaee ese eee

ARTICLE FIRST.

ACTION BY A CORPORATION, AND ACTION AGAINST A CORPORATION, TO RECOVER
DAMAGES OR PROPERTY.

Complaint § 1775. In an action brought by or against a corporation, the

by or * complaint must aver that the plaintiff, or the defendant, as the case
inst : ‘ i :

corpora. may be, is a corporation; must state whether it is a domestic corpo-

ration or a foreign corporation ; and, if the latter, the state, country
or government, by or under whose laws it was created. But the
plaintiff need not set forth, or specially refer to, any act or proceed-
ing, by or under which the corporation was created.

[Founded upon 2 R.8., 459, Part 3, ch. 8, tit. 4,813 (3 R. S, 5th
ed., 756; 2 Edm., 479), the provisions of which have been extended,
so as to establish an obligatory rule of pleading in the case therein

provided for, and also where a foreign corporation is a party. Accord-
ing to various decisions, it is unnecessary for a domestic corporation

288
cHap. xv.] ACTION AGAINST A CORPORATION. $§ 1776-1779.
plaintiff to state the fact of its corporate existence ; if so, so much of **** acs
this section of the R. 8., as relates to plaintiffs, is an excrescence upon
the statute book. These cases are cited by Strona, J., in Aennedy v.
Cotton, 28 Barb., 59, wherein it is said, that “ the wisdom and con-
venience of the rule strongly commend its preservation”. But other
cases, cited in the same opinion, look the other way; and in Phenix
Bank vy. Donnell, 41 Barb., 571, SUTHERLAND, J., attacks the rule
upon principle, and forcibly suggests that it must be subject to some
exceptions, as where the corporate name is “John Smith”. See, also,
Bank of Havana v. Wickham, 16 How. Pr., 97%, where the real plaint-
iff was an individual. Inasmuch as the rule is apparently inapplica-
ble to defendants, and perhaps to foreign corporations, and rests upon
the fiction that the complaint contains an implied allegation, it should
be abolished, especially as the general self-incorporating statutes allow
such an unrestricted choice of names, that it may sometimes be uncer-
tain who is the real party. |

§ 1776. In an action, brought by or against a corporation, the ee

plaintiff need not prove, upon the trial, the existence of the corpo- ¢oierats

. o . . unneces-
ration, unless the answer is verified, and contains an affirmative alle- sary.

gation that the plaintiff, or the defendant, as the case may be, is not
a corporation.

[Id., § 3, as amended by L. 1864, ch. 422 (6 Edm., 296), and L. 1875,
ch. 508, extended to a case where a foreign corporation sues, or is sued.
The original provision was not applicable to a foreign corporation,
which must prove its corporate existence, if a general denial is inter-
posed. Waterville Man. Co. v. Bryan, 14 Barb., 182, There seems to be
no good reason for such a distinction ina mere matter of pleading. See
Roberts y. National Ice Co., 6 Daly, 426; Howe Sewing Machine Co. v.
robinson, 7 Daly, 399.]

§ 1777. In an action or special proceeding, brought by or misnomer,
against a corporation, the defendant is deemed to have waived any waived,
mistake in the statement of the corporate name, unless the mis-
nomer is pleaded in the answer, or other pleading in the defendant’s
behalf.

[Id., § 14, amended so as to adapt it to the modern procedure. |

§ 1779. An action may be maintained by a foreign corporation, when
foreign

in like manner, and subject to the same regulations, as where the epee

action is brought by a domestic corporation, except as otherwise *"*

specially prescribed by law. But a foreign corporation cannot

maintain an action, founded upon an act, or upon a liability or obli-

gation, express or implied, arising out of, or made and entered into

in consideration of, an act, which the laws of the State forbid a cor-
[37] 289
§ 1780.

JUSTICE’S

C
MANUAL,

When
foreign
corpora-
tion may
be sued.

ACTION AGAINST A CORPORATION. [copE cIv. PRoc.

poration or association of individuals to do, without express author-
ity of law. This section does not affect the validity of a meeting
of the stockholders or directors of a foreign corporation, held within
the State, where such a meeting is authorized by the laws of the
state, country, or government, by or under which the corporation is
created; or of an act, done’ at such a meeting, which is not in con-
flict with the same laws, or the laws of the State.

[Id., §§ 1 and 2, consolidated; the words, ‘“‘except as otherwise
specially prescribed by law”, substituted for “upon giving security
for the payment of the costs of the suit”. The original apparently
made the furnishing of security for costs, a condition precedent to
the right to sue; but it has been construed in accordance with the
amendment made by this section. Bank of Michigan v. Jessup, 19
Wend., 10; Persse, etc., Works v. Willett, 14 Abb. Pr., 119. The syn-
tax only of the second sentence has been changed; the descriptive
phraseology having been carefully preserved, for fear of giving rise to
new questions, although it does not contain a very apt definition of
the principal case to which it applies. Mew Hope, etc., Co. v. Pough-
keepsie Silk Co., 25 Wend., 648. The last sentence constitutes the
substance of the addition to the original section made by L. 1873, ch.
634 (9 Edm., 676).]

§ 1780. An action against a foreign corporation may be main-
tained by a resident of the State, or by a domestic corporation, for
any cause of action. An action against a foreign corporation may
be maintained by another foreign corporation, or by a non-resident,
in one of the following cases only :

1. Where the action is brought to recover damages for the breach
of a contract, made within the State, or relating to property situated
within the State, at the time of the making thereof.

2. Where it is brought to recover real property situated within
the State, or a chattel, which is replevied within the State.

3. Where the cause of an action arose within the State, except
where the object of the action is to affect the title to real property
situated without the State.

[Substituted for Co. Proc., § 427, and § 15 of the article of the R. 8S.
now under consideration, as amended by L. 1849, ch. 107 (3 R.
S., 5th ed., 756; 2 Edm., 479). The last mentioned statute (Sess.
L. 1849, p. 142) is entitled “An act to extend the remedies at law
against foreign insurance companies;” and this singular title was
made the basis of the decisionin Burns v. Provincial Ins. Co., 35 Barb.,
525. In truth, it extends to all foreign corporations, as did the sec-
tion of the R. 8., which it amended (2 R. S., 3d ed., 553). The courts

. have been perplexed, in consequence of the almost simultaneous pass-

290
cHAP. xv.] ACTION AGAINST A CORPORATION.

age of that act, and of Co. Proc., § 427; but it seems to be the better
opinion that both remained in force. Burns y. Provincial Ins. Co.,
supra; Jones v. Norwich Trans. Co. 50 Barb., 194, and cases
cited. This section has been framed upon that theory; and in remod-
elling both statutes, an effort has been made to supply their deficien-
cies, and settle the questions to which they have given rise, as far as
the plan of this revision rendered it practicable to do so. Some very
difficult questions are presented, with respect to the power of the
courts of the State to interfere with the internal management of
foreign corporations, upon the application of a resident. Murray vy.
Vanderbilt, 39 Barb., 140; Howell v. Chicago and N. W.2R. Re Co.,
51 id., 878; De Bemer v. Drew, 57 id., 438; Prouty v. S & NL.
RP. Co. 1 Hun, 655; Redmond v. Hoge, 5 N. Y. Sup. Ct. (T. & C.),
386; Hastings v. Drew, 76 N. Y.,9. The law upon this subject is yet un-
settled ; and as it is governed by principles, the application of which
should not be embarrassed by mere remedial legislation, no attempt has
been made, in this section, to regulate it. Accordingly the first sentence
of this section is a transcript of so much of Co. Proc., § 427, as relates
to an action by a resident, adding the clause including a domestic cor-
poration, for reasons which need no explanation. Subd. 1 is a sub-
stitute for the act of 1849. The last clause has been added, in order to
cover some cases which are within its spirit, but not its letter; as where
property situate in the State is insured by a policy executed elsewhere.
Subd. 2 is designed to remove the principal source of confusion,
which has been caused by the use of the expression, ‘subject of the
action”, in Co. Proc., § 427, subd. 2. It appears to cover every case
not within subd. 1 or 3, where a litigation between foreigners ought
to be allowed on the ground, that the “subject of the action” is
within the State where the action ig commenced. The exception,
added in subd. 3, is new; it is intended to conform the provision to
the ruling in Cumberland Coal Co. v. Hoffman Coal Co.. 30 Barb.,
159. The action given by this section is general, and not directed
against particular property, Gibbs y. Q. Ins. Co., 63 N. Y., 114.

It is evident that this section is open to a criticism, which also ap-
plies to the original statute, namely, that its restrictions may be
evaded by an assignment of the cause of action to aresident. But,
generally, the assignment will obviate the objection to the bringing
of the action; and in most cases where it will not, § 1910 will prevent
the violation of any grave principle of public policy.]

ARTICLE FIFTH.

PROVISIONS APPLICABLE TO TWO OR MORE OF THE ACTIONS SPECIFIED IN THIS
TITLE,

§ 1813.* Where an action, authorized by a law of the State,
is brought against one or more persons, as stockholders of a corpo-
ration, or joint-stock association, an objection to any of the proceed-
ings cannot be taken, by a person properly made a defendant in the
action, on the ground that the plaintiff has joined with him as a de-

291

§ 1813.

PART II.

In action
against
stock-
holders,
misnomer,
etc., not
available.
§ 1814.

JUSTICE'S
MANUAL,

Action,
etc., by
and
against
executor,
etc., to be
brought
in repre-
sentative
capacity.

ACTION BY EXECUTOR, ETC. [copz civ. Proc.

fendant in the action, a person whose naine appears on the stock-books
of the corporation or association, as a stockholder thereof, by the
name so appearing ; but who is misnamed, or dead, or is not liable for
any cause. In such a case, the court may, at any time before final
judgment, upon motion of either party, amend the pleadings and
other papers, without prejudice to the previous proceedings, by sub-
stituting the true name of the person intended, or by striking out
the name of the person who is dead, or not liable, and, in a proper
case, inserting the name of his representative or successor.

[The substance of L. 1869, ch. 157, § 2 (7 Edm., 426), amended by
omitting the clause, confining the provision to actions against stock-
holders of a domestic corporation or association. Inasmuch as the act
of 1870 (ch. 151) applies to actions against and concerning foreign as
well as domestic corporations and associations, their officers, etc., there
seems to be no reason why this provision should be confined to the
latter, especially as the difficulty of ascertaining the true names is
greater in the former than in the latter case. ]

TITLE III.

Actions relating to the estate of a decedent.

ARTICLE FIRST.

ACTION BY OR AGAINST AN EXECUTOR OR ADMINISTRATOR,

§ 1814. An action or special proceeding, hereafter commenced
by an executor or administrator, upon a cause of action, belonging
to him in his representative capacity, or an action or special pro-
ceeding, hereafter commenced against him, except where it is
brought to charge him personally, must be brought by or against
him in his representative capacity. A judgment, in an action here-
after commenced, recovered against an executor or administrator,
without describing him in his representative capacity, cannot be en-
forced against the property of the decedent, except by the special
direction of the court, contained therein.

[New. Heretofore an executor or administrator might, in a large
class of cases, sue or be sued in his individual capacity, although the
estate was the real property in interest. This rule has come down
from the former practice; but it is inconsistent with the principles

‘ 292
CHAP. XV.] ACTION FOR PENALTY, ETC. §§ 1818-1829,

of the existing procedure, and sometimes leads to embarrassments, in
determining in what capacity an action must be brought, and to diffi-
cult questions relating to costs. There appears to be no substantial
reason why it should not be expressly abolished, except in the case for
which the next section provides. See Beers v. Shannon, 73 N. Y.,
292; Risley v. Wightman, 13 Hun, 163; Alger v. Conger, 17 Hun,
45; Shelton v. Scott, 18 Hun, 3%5; Cordier v. Thompson, N. Y. C.
P., 18 Alb. L. J., 498.]

§ 1818. One of two or more executors, to whom letters testa-
mentary have not been issued, is not a necessary party to an action
or special proceeding, in favor of or against the executors, in their

representative capacity.
: [L. 1838, ch. 149, §1 (3 R. S., 5th ed., 201; 4 Edm., 505).]

§ 1829. An execution may be issued, in the name of an executor
or administrator, in his representative capacity, upon a judgment
recovered by any person who preceded him in the administration of
the same estate, in any case where it might have been issued in favor
of the original plaintiff, and without a substitution.

[Substituted for two R. 8., 449, Part 3, ch. 8, tit. 3,§ 13 (3 RK. 5.,
5th ed., 747; 2 Hdm., 468), which provides that subsequent executors,
etc., may have execution on judgments in favor of their predecessors,
within one year from the time of the docketing of the judgment, with-
out reviving the same by scire facias, etc.]

TITLE IV.

Other special actions and rights of action.

ARTICLE THIRD.

ACTION BY A PRIVATE PERSON FOR A PENALTY ORK FORFEITURE.

PRELIMINARY Note.—The following article corresponds to Part 3,
ch. 8, tit. 6, art. 1 of the R. 8. (3 R.S., 5th ed., 783-785; 2 Edm.,
502-505), entitled “ Of actions for penalties and forfeitures”. Such
of the provisions of that article as have been retained in this article,
have been much condensed, having been treated, in that respect, like
chose revised in the preceding article. Section 3, and so much of § 4
as is not embraced in § 983, ante, are revised in §§ 1962 and 1963,
post. Sections 2, 8 and 9, have been omitted, because the subject-
matter thereof 1s elsewhere sufficiently provided for. Sections 10-13
inclusive, relating to the pleadings in actions of this description, have

293

PART II.

Executors
who have
not quali-
fied, not
necessary
parties.

Execu-
tion on
former
judgment.
§§ 1893-1894. ACTION FOR PENALTY, ETC. [cope civ. proc.

JUSTICES

MANUAL.

Action by
person
specially
aggrieved.

Action by
common
informer.

also been omitted, because they are inconsistent with the present
system of pleading. By Co. Proc., § 471, it was provided, that
that Code did not affect proceedings under this article of the
kh. 8S. except that a civil action thereunder must be “conducted
in conformity” to its provisions. The adjudications conflicted
upon the question whether this proviso repealed, by implication,
the sections referred to. See, upon the affirmative side, Morehouse v.
Crilley, 8 Tlow. Pr., 431; Abbott v. N.Y. Ci and H. R. Rk. Co., 12
Abb. Pr., N. 8., 465; upon the negative, People v. Bennett, 5 Abb.
Pr., 384, affirmed in 6 id. 343; and dicta in Bank of Genesee v.
Patchin Bank, 13 N. Y. (3 Kern.), 309. But upon the question,
whether the rules of pleading established by those sections, were in prin-
ciple consistent with the prevailing rules of pleading in other cases,
there cannot be a difference of opinion, and there was no sufficient
reason for retaining such an excrescence upon the system ag they
would constitute. See Addott v. N.Y. C. Rk. FR. Co., 1 Buff. Sup. Ct.
(Sheldon) 278; People v. McCann, 67 N. Y., 506. A case will very
rarely occur, where a complaint properly framed under the general
rules of pleading contained in this act, will necessarily be much more
voluminous than one framed under provisions substantially correspond-
ing to those of the R.S. See Nellis v. N. Y. Central R. Rk. Co., 30
N. Y., 505. The remaining changes made in this article are suffi-
ciently explained in the notes to the different sections.

§ 1893. Where a penalty or forfeiture is given, by a statute,
to a person aggrieved by the act or omission of another, the person,
to whom it is given, may, if it is pecuniary, maintain an action to
recover the amount thereof; or, if it consists of the forfeiture of a
chattel, he may maintain an action to recover the chattel, or its
value, or other damages, as the case requires.

[2 R. 8. 480, Part 3, ch. 8, tit. 6,§ 1(3 R.S., 5th ed., 783; 2 Hdm.,
502), amended so as to adapt the provision to the modern procedure;
but without substantial change, except that this section authorizes
expressly an action to recover a forfeited chattel as well as its value.
A like authority was, it is supposed, implied in the original statute. ]

§ 1894. Where a penalty or forfeiture is given, by a statute,
to any person who sues therefor, an action to recover it may be
maintained, by any person, in his own name; but the action cannot
be compromised or settled, without the leave of the court in which
it is brought.

[This section takes in all of § 5 of the same title, which it is useful
to preserve, and part of § 6.]

294
CHAP, xv.] ACTION FOR PENALTY, ETC. §§ 1895-1897.

§ 1895. The summons in an action, brought as prescribed in,

the last section, can be served only by an officer, authorized by law
to collect an execution, issued out of the same court. The sum-
mons, when issued, cannot be countermanded by the plaintiff, before
the service thereof; and, immediately after it hag been served, the
officer, who served it, must file it, with his certificate of service, in
the office of the clerk, or deliver it, with a like certificate, to the
magistrate by whom it was issued, as the case requires.

[Id., the remainder of § 6, completely remodelled, so as to accom-
plish the object for which it was apparently enacted. The changes in
the procedure, effected since the R. S., have substantially rendered
nugatory this very salutary enactment, because, if it has not been
superseded, the general proviso contained in Co. Proc., § 471, raised
so grave a question upon that subject, that it is of little practical
utility. The provision relating to commencing the action, by plac-
ing the process in the hands of an officer, is inconsistent with §§ 416
and 2876, and appears to be unnecessary and objectionable, as facili-
tating collusion. As respects the effect of so doing upon the statute
of limitations, §§ 398, 399, and 400, ante, cover the whole ground. ]

§ 1896. In an action to recover a penalty or forfeiture, given
by a statute, brought by any person, other than the person aggrieved
or a public officer, the plaintiff nay recover, notwithstanding the
recovery of a judgment, for or against the defendant, in an action
brought therefor by another person, if he establishes that the for-
mer judgment was recovered collusively and fraudulently.

[Id., § 14, amended as required by the changes in the procedure.
The word, “collusively ”, has been substituted for “by covin”, and
the section restricted to a case, where the plaintiff in the former action
was another person. This was doubtless the meaning of the original
statute, but 16 was so drawn as, apparently, to include also a former
action by the same plaintiff. The section is not to be found in the
report of the revisers; it is doubtless suggested by a provision in 1
RG, 161, 9%]

§ 1897. In an action to recover a penalty or forfeiture, given
by a statute, if a copy of the complaint is not delivered to the
defendant with a copy of the summons, a general reference to the
statute must be indorsed upon the copy of the summons so delivered,
in the following form, “ According to the provisions of”, ete.;
adding such a description of the statute, as will identify it with
convenient certainty, and also specifying the section, if penalties or

295

PART ITI.
Id.;
service of
summons.

Id.; when
not barred
by a col-
lusive
recovery.

Indorse-
ment upon
summons.
§§ 1898-1900. ACTIONS FOR WRONGS. [CODE CIV. PROC.

JUSTICH'S
MANUAL.

When part
ofa
penalty
may be
recovered.

Civil and
criminal
prosecu-
tions not
merged.

Action for
suing,
etc., in
name of
another.
Made also
a misde-
meanor,

forfeitures are given, in different sections thereof, for different acts
or omissions.

[Id., § 7, amended so as to adapt it to the modern procedure; also
by adding the words, “if a copy of the complaint is not delivered to
the defendant with a copy of the summons”. When the R. 8. were
enacted, there was nothing but the indorgement on the process to
show for what the action was brought, until the declaration was filed;
but now that the complaint may accompany the summons, it is evi-
dent that the section should be restricted to cases, where the summons
alone is served. See Coxv. NV. Y. C. and H. R. LR. R. Co., 61 Barb.,
615, which construes the original provision in accordance with this
amendment. ]

§ 1898. Where a statute gives a pecuniary penalty or forfeit-
ure, not exceeding a specified sum, an action may be maintained to
recover the sum specified; and the court, jury or referee, by which

or by whom the issues of fact are tried, or, where judgment is taken

by default for failure to appear or plead, the damages are ascertained,
may award to the plaintiff the whole sum, or such a part thereof, as
it or he deems proportionate to the offence.

[Id., § 15, amended in like manner; but this section includes also
a penalty for an omission as well as an act of commission, with re-
spect to which the construction of the original statute is not clear.|

ARTICLE FOURTH.

CERTAIN ACTIONS TO RECOVER DAMAGES FOR WRONGS.

§ 1899. Where the violation of a right admits of a civil and
also of a criminal prosecution, the one is not merged in the other.
[Co. Proe., § 7. ]

§ 1900. If a person, vexatiously or maliciously, in the name
of another but without the latter’s consent, or in the name of an
unknown person, commences or continues, or causes to be commenced
or continued, an action or special proceeding, in a court, of record or
not of record, or a special proceeding before a judge or a justice of
the peace ; or takes, or causes to be taken, any proceeding, in the
course of an action or special proceeding in such a court, or before

“such an officer, either before or after judgment or other final de-

termination ; an action, to recover damages therefor, may be imain-
tained against him, by the adverse party to the action or special
296
CHAP. Xv. | ASSIGNMENT OF OLAIMS. §§ 1901-1910.

. i : Pete +e PART Il.
proceeding ; and a like action may be maintained by the person, if

any, whose name was thus used. THe is also guilty of a misde-
meanor, punishable by imprisonment, not exceeding six months.

[2 RB. 8., 550, ch. 8, tit. 17, §1 (3 R.S., 5th ed., 865.5 2 Edm., 571),
omitting the provision regulating the amount of damages, which 1s
in the next section. This section has been remodelled, in conformity
with the existing procedure, and the syntax of the other parts of this
revision; but without any substantial change, except that its pro-
visions have been made broad enough to give a remedy, in a proper
case, to a plaintiff, who has been aggrieved by the personation, etc., of
a defendant. |

§ 1901. In an action, brought by the adverse party, as pre- Treble and

other in-

scribed in the last section, the plaintiff, if he recovers final judg- greased .

; : ; tob
ment, is entitled to recover treble damages. In an action, brought recovered.

by the person whose name was used, as prescribed in the last sec-
tion, the plaintiff is entitled to recover his actual damages, and two
hundred and fifty dollars in addition thereto.

[The remainder of same section, with like amendments, but in sub-
stance unchanged, except that the provision has been extended to a
case where judgment is taken by default; and the sum of $250 is
given in addition to, and not, as in the original, in lieu of, the actual
damages of the person whose name was used. |

ARTICLE FIFTH.

MISCELLANEOUS ACTIONS AND RIGHTS OF ACTION.

§ 1909. Where a claim or demand can be transferred, the trans- Wher
transferee

fer thereof passes an interest, which the transferee may enforce by of ¢laim

mand may
sue.
ri . a J . Rights of
claim, in his own name, as the transferor might have done; subject eens

J ete.

an action or special proceeding, or interpose as a defence or counter-

to any defence or counterclaim, existing against the transferor,
before notice of the transfer, or against the transferee. But. this
section does not apply, where the rights or liabilities of a party to a
claim or demand, which is transferred, are regulated by special pro-
vision of law; nor does it vary the rights or liabilities of a party to
a negotiable instrument, which is transferred.

[New. See the note to the next section. ]

§ 1910. Any claim or demand can be transferred, except in one what

. claims or
of the following cases : demands

[38] 207
§ 1910.

JUSTICH’S

MANUAL.
may be
trans-
ferred.

ASSIGNMENT OF CLAIMS.  [cop# crv. proc.

1. Where it is to recover damages for a personal injury, or for a
breach of promise to marry.

2. Where it is founded upon a grant, which is made void by a
statute of the State ; or upon a claiin to or interest in real property,
a grant of which, by the transferor, would be void by such a statute.

3. Where a transfer thereof is expressly forbidden by a statute
of the State, or of the United States, or would contravene public
policy.

[This and the last section have been prepared as a substitute for Co.
Proe., § 112, and the latter half of the first sentence of Co. Proc, § 111.
There is no provision of the Code of Procedure, the remodelling of
which was more urgently demanded by the principles adopted in this
revision, than the short phrase referred to; for it has given rise to so
many adjudications, that a complete list of their titles only would
probably occupy an entire page of this book. A few only of the most
recent are cited; for the others, the reader is necessarily referred to the
digests. DeLancey vy. Stearns, 66 N. Y., 157; Crane v. Turner, 67 N.
Y., 487; Gray v. Green, 12 Hun, 598; Drake v. Smith, 12 Tun, 532;
Mayer v. Mode, 14 Wun, 155; Maule v. Crawford, 14 Hun, 183; Selig-
man v. Dudley, 14 Hun, 186; Getty v. Devlin, 70 N. Y., 504; Rose-
paugh v. Vredenburgh, 16 Hun, 60; Pilcher v. Brayton, 17 Hun, 429;
Krauser v. Ruckel, 17 Wun, 463; McBratney v. Rome, etc, R. R. Co.,
17 Hun, 385 ; Seymour v. Fellows, 44 N. Y. Super. Ct. (J. & 8.), 124;
Grand Rapids, etc., R. R. Co. v. Sanders, 17 Wun, 552; Heermans v.
Hillsworth, 64 N. Y.,169; Barton v. Spies, 73 N. Y., 133; Comstock v.
Hier, 73 N. Y., 269; Freund v. Imp. & Traders’ Nat'l Bank, 76 N.Y.,
352. These sections supersede nearly all of this vast mass of adjudi-
cations. The remainder will be valuable, only because the sections
have been purposely confined to the transfer of causes of action, and
are therefore inapplicable to the transfer of property, or those vague
interests which partake of the character of ‘‘ jus precarium”, and are,
therefore, not properly embraced by the phrase, “a cause of action. ”
With respect to the latter classes of questions, it is believed, that their
connection with the provision, for which these sections are substituted,
is generally quite remote; and they may be left to be regulated by gen-
eral principles, without any special statutory provision.

The word, ‘‘ transfer”, and its derivatives have been used in these
sections, instead of “assignment” and its derivatives, so as to include
various cases, where the title passes “in invitum”, or without a formal
assignment, as by the appointment of a receiver. The concluding sen-
tence of § 1909 should be read in connection with § 502, ante, relating
to counterclaims.

Section 1910 settles various disputed questions relating to the assign-
ability of causes of action, as it makes every cause of action assignable,
not included within one of’ the special exceptions. The general rule,
to be derived from the authorities, is that the test of assignability is
whether the cause of action would pass to the executor or administra-
tor. But this is too vague a test for practical use in many cases; and
has given rise in its turn to some difficult questions. ‘hus, while the
court of appeals has held that an assignee may recover money lost in
gaming (Meech v. Stoner, 19 N. Y., 26), the supreme court has made

298
* CHAP. Xv. | ASSIGNMENT OF CLAIMS. §§ 1912-1913.

two conflicting decisions upon the question, whether the same rule
applies to money lost in betting. McDougal v. Walling, 48 Barb., 364 ;
Weyburn v. White, 22 id., 82. Again, although the general rule per-
mits a cause of action for a wrong affecting property to be assigned,
the court of appeals has held, that an assignee cannot sue to recover
damages, in consequence of fraudulent representations respecting the
solvency of a third person (Zabriskie v. Smith, 13 N. Y., 322); and
this decision has led to a subtle distinction, between cases where a
wrong directly affects specific property, and those where it produces a
general pecuniary damage. Graves v. Spier, 58 Barb., 349; see, par-
ticularly, pp. 384-386, and the cases cited. This and other distinctions,
and various exceptions to the general rule, which have been introduced,
rest on no solid foundation, and should be swept away. Accordingly,
subd. 1 of this section confines the exceptions, arising out of the nature
of the action, to actions brought to recover damages for personal inju-
ries, as that expression is defined in § 3343, subd. 9, post, and also for
breach of promise, which partakes of the same character. The
exceptions enumerated in subd. 2 will rarely occur; but there are
some special statutory prohibitions against transfers of land, which
render it proper to insert the subdivision, such as the restrictions
upon conveyances by the commissioners of the land office, Indian lands,
etc. Subd. 3 includes all cases, where an assignment is expressly for-
bidden by law, as 1 R.8., 730, Part 2, ch. 1, tit. 2, $$ 63, 65 (3 R.S.,
5th ed., 21, 22; 1 Edm., 679, 680); and various statutes of the U.5.,
relating to pensions, government contracts, etc.; and also those where
a contract or other right of action is connected with an official duty.
Per Dentro, J., in Horner v. Wood, 23 N. Y., 355, and Bliss v. Lawrence,
53 N. Y., 442. ]

§ 1912. A judgment for a sum of money, or directing the pay-
ment of a sun of money, recovered upon any cause of action, may
be transferred ; but if it is vacated or reversed, the transfer thereof
does not transfer the cause of action, unless the latter was transfer-
able before the judgment was recovered.

[New. The first clause isin accordance with the uniform rule, recog-
nized in the cases referred to in the note to the last section ; the remain-
der of the section settles a question which is yét doubtful, in accordance
with the apparent logical result of the principles applicable thereto.
See Cutts v. Guild, 56 N. Y., 229; Coughlinv. N. Y.C. é H. Rk. R.
Co., 7L N. Y., 443.]

§ 1913. Except in a case where it is otherwise specially pre-
scribed in this act, an action upon a judgment for a sum of money,
rendered in a court of record of the State, cannot be maintained,
between the original parties to the judgment, unless, cither

1. It was rendered against the defendant by default, for want of
an appearance or pleading, and the summons was served upon him,
otherwise than personally ; or

299

PART IT.

Judgment;
when as-
signable.

Action
upon
judgment
regulated.
§ 1915.

MISCELLANEOUS ACTIONS. [cont crv. proc.

JUSTICH’S

MANUAL.

Action

upon
enal
ond.

2. The court in which the action is brought has previously made
an order, granting leave to bring it. Notice of the application for
such an order ynust be given to the adverse party, or the person pro-
posed to be made the adverse party, personally, unless it satisfac.
torily appears to the court, that personal notice cannot be given,
with due diligence; in which case, notice may be given in such a
manner as the court directs.

[Co. Proc., § 71, omitting the latter clause, relating to actions upon
judgments in justices’ courts, a substitute for which is contained in §
3154; and with amendments, of which only the following are material.
The introductory phrase excepts from the operation of the section,
actions like those provided for in title 5, art. 3 of this chapter, and in
article 1 of this title. The original section was thus construed in
various cases, but at the expense of some straining of its language. The
words, “for a sum of money”, have been added in accordance with
Hanover F. Ins. Co. v. Tomlinson, 3 Hun, 630; 8.C., 6 N. Y. Sup. Ct.
(T. & C.), 127; and the words, “ of record ”, have been added before, and
the words, “except a court of a justice of the peace”, omitted after
“of the State”; so as not to include judgments of the district courts
of New-York city, and similar courts not of record. Subd. 1 intro-
duces an exception which appears to be just, The orignal statute has
been otherwise construed, Force v. Gower, 22 How. Pr., 294. In subd.
2, the words,“in which the action is brought”, have been added, so
as to follow the ruling in National Mech. Banking Ass’n v. Usher, 1
-Sweeny, 403. Theconclusion of the section after the words,“ adverse
party”, is new. Its object will be perceived without special explana-
tion. |(*)

§ 1915. A bond in a penal sum, executed within or without the
_ State, and containing a condition to the effect, that it is to be void,

‘ upon performance of any act, has the same effect, for the purpose of

maintaining an action or special proceeding, or two or more suc-
cessive actions or special proceedings thereupon, as if it contained a
covenant to pay the sum, or to perform the act, specified in the con-
dition thereof. But the damages to be recovered for a breach, or
successive breaches, of the condition, cannot, in the aggregate, ex-
ceed the penal sum, except where the condition is for the payment
of money; in which case, they cannot exceed the penal sum, with
interest thereupon, from the time when the defendant made default
in the performance of the condition.

[This section is newin form. It supersedes 2 R. 8., 353, Part 3, ch.
6, tit. 2, $$ 12 and 13 (3 R. 8., Sth ed., 634; 2 Hdm., 364); and 2 R.
§., 378, 3879, being the whole of art. 2, of tit. 6 of the same chapter
(3 BR. 8., 5th ed., 661, 662; 2 Edm., 392-394). It embodies the rules,

300

 

(a) Section 3154 is on page 134.
CHAP. Xv. ] MISCELLANEOUS ACTIONS. §§ 1916-1917.

now established by the courts of the State, for the cases therein pro-
vided for, with respect to the mode of procedure and the extent of
the recovery; except that, for the sake of simplicity, no mention has
been made of some of the exceptions to the rule, which regulates a
recovery beyond the amount of the penal sum, recognized in Lyon v.
Clark, 8 N. Y. (4 Seld.), 148, wherein that vexed question wag settled.
Most of ‘these provisions remained in force till they were repealed in
1880, and constituted a perpetual source of embarrassment in the
class of actions to which they applied, especially as the general im-
pression of the profession was that they were superseded by the Code
of Civil Procedure. Beers v. Shannon, 73 N. Y., 292.]

§ 1916. A surety, including a drawer or indorser, may recover,
in an action against his principal; and an executor, administrator,
or other trustee, may, where the trust estate is insuflicient to reim-
burse him, recover, in an action against the beneficiary whom he
represents, his reasonable costs and other expenses, incurred neces-
sarily and in good faith, in the prosecution or defence, by the ex-
press or implied consent of the principal or beneficiary, of an action
or special proceeding, relating to the demand secured, or to the trust
estate, as the case requires. This section does not affect any special
agreement relating to those costs and expenses.

[L, 1858, ch. 314, §3(3 R. &., 5th ed, 226; 4 Edm., 483), amended
by the addition of the words, ‘‘ where the trust estate is msufticient to
reimburse him”, and ‘‘ by the express or implied consent of the prin-
cipal or beneficiary ”, and also of the concluding sentence. The gen-
eral object of the statute, of which the original section is a part, was
to enable certain trustees to disaffirm acts in fraud of creditors, and
maintain or defend actions accordingly. Evidently, the primary object
of § 3 was to enable them to recover their expenses in so doing, by ac-
tion against the creditors for whose benefit they acted. But the lan-
guage of the section is general, and its provisions extend to “any in-
dorser or other surety”, apparently as the result of an after thought.
As it stood, in the original statute, the section might be made the
vehicle of gross oppression and injustice. The amendments remove
the most odious features of the original, under which a mau might
apparently be compelled to pay the costs of an unsuccessful suit,
brought against his express prohibition. |

§ 1917. Where it appears, upon the trial of an action, that a
negotiable promissory note or bill of exchange, upon which the
action, or a counterclaim interposed in the action, is founded, was
lost, while it belonged to the party claiming the amount due there-
upon, he may prove the contents thereof, by parol or other secondary
evidence, and may recover or set off the amount due thereupon, as

if it was produced. But for that purpose, he must give to the ad-
301

PART II.

Action by
surety or
trustee to
recover
costs, etc.

Action
upon lost
negotiable
paper.
g 1918.

USTICE’S

J
MANUAL.

The last
section
qualified.

MISCELLANEOUS ACTIONS. [cops crv. proc.

verse party a written undertaking, in a sum fixed by the judge of
the referee, not less than twice the amount of the note or bill, with
at least two sureties, approved by the judge or the referee, to the
effect, that le will indemnify the adverse party, his heirs and per-
sonal representatives, against any claim by any other person, on ac-
count of the note or bill, and against all costs and expenses, by
reason of such a claim.

i R.8., 406, Part 3, ch. 7%, tit. 8, §§ 75, 76 (38 R.S., 5th ed., 691;
2 Edm., 423), consolidated, and amended by substituting an under-
taking for a bond, but unchanged in substance. The provision that
parol evidence may be given is probably superfluous; but it has been
retained because, without it, the section may, in some cases of lost
notes, render the rule of evidence different from that governing the
right of recovery. Livingston v. Rogers, 2 Johns. Cas., 488; Blade
vy. Noland, 12 Wend., 173. It appears, from the revisers’ notes, that
the object of the section was to permit a recovery at law in such cases,
for it had been held in Rowley v. Ball, 3 Cow., 303, that there was no
remedy except in equity. It has been held, that the section is appli-
cable to a certificate of deposit, Mrank v. Wessels, 64 N. Y., 155; also
to a check, Jacks vy. Darrin, 3 KE. D. Smith, 548, and id., 557; also to
an instrument lost after the commencement of the action, id.; but not
to one, which has been destroyed either intentionally, Blade v. Noland,
supra; or accidentally, Des Arts v. Leggett, 16 N. Y., 582. Nor is it
applicable to paper not negotiable, upon which the party may, in gen-
eral, recover without an indemnity. Des Aris v. Leggett, 5 Duer, 156 ;
Wright v. Wright, 54 N. Y., 437. The amendments will not affect
these rulings. It was also held in Rowley v. Ball, supra, and Pintard
vy. Tackington, 10 Johns., 104, that the party might recover at law, and
of course without indemnity, upon a negotiable note, which was lost
after maturity, if it had not been negotiated; but the R. 8. evidently
intended to change this rule. See, to that effect, Wrank v. Wessels,
supra. |

§ 1918. But where an action is prosecuted or defended by the
people of the State, or by a public officer in their behalf, the people,
or the public officer, may prove the contents of a lost note or bill of
exchange, by parol or other secondary evidence, and may recover or
set off the amount due thereupon, without giving any security to
the adverse party.

(Substituted for L. 1855, ch. 85 (3 R.S., 5th ed., 691; 4 Edm., 645),
The orginal statute 1s a remarkable specimen of careless legislation.
It contains an erroneous reference to the R.8., in consequence of
which, Judge Edmonds “cannot tell what this act means”; but the
editors of the 5th ed. of the R. 8. have explained it correctly. But the
text of the statute seems to have led to a conclusion, directly contrary
to the evident intent of its framers. It provided that the section of
the R. 8., for which the last section is a substitute, should not apply

302
CHAP. Xv. ] ACTIONS BY OR AGAINST ASSOCIATIONS.

to an action by the people; the effect of which, as the note shows,
would be to require the people to bring an action in equity, in order
to enable them to recover, and to furnish more stringent security than
the law prescribed in ordinary cases; and, on the other hand, to pre-
vent a defendant sued by the people from setting off a lost instrument
in any case, because the people cannot be sued. The title of the
original act shows that the substitute accomplishes the design of its
framers. ]

TITLE V.
Other actions by or against particular parties.

ARTICLE 1. Action by or against an unincorporated association.
2. Actions by or against certain county, town, and municipal officers.
3. Actions, and rights of action, against and between joint debtors.

ARTICLE FIRST.
ACTION BY OR AGAINST AN UNINCORPORATED ASSOCIATION.

§ 1919. An action or special proceeding may be maintained,
by the president or treasurer of an unincorporated association, con-
sisting of seven or more persons, to recover any property, or upon
any cause of action, for or upon which all the associates may
maintain such an action or special proceeding, by reason of their
interest or ownership therein, either jointly or in common. An
action or special proceeding may be maintained, against the presi-
dent or treasurer of such an association, to recover any property,
or upon any cause of action, for or upon which the plaintiff! may
maintain such an action or special proceeding, against all the asso-
ciates, by reason of their interest or ownership, or claim of ownership
therein, either jointly or in common, or their liability therefor,
either jointly or severdlly. Any partnership, or other company of
persons, which has a president or treasurer, is deemed an association,
within the meaning of this section.

[From L. 1849, ch. 258, § 1 (3 R. S., 5th ed., 777; 4 Edm., 650),
and L. 1851, ch. 435 (3 R.8., 5th ed., 778; 4 Edm., 652). In Wes-
cott v. Fargo, 61 N. Y., 542, it was held that the president or treasurer
of a joint stock association was, under the statutes in question and
Const., art. 8, tobe regarded, for the purposes of an action, as a corpora-
tion sole. But with respect to some of the kinds of associations

303

§ 1919.

PART II.

Actions,
etc., by or
against
associa-
tions of
seven or
more per-
sons,
§§ 1920-1921. AOTIONS BY OR AGAINST ASSOCIATIONS. [o. 0. PRoc.

 

JUSTICES.
MANUAL,

Proceed-
ingsin ,
vase of
death,
ete.

Effect of
judgment;
execution
there-
upon.

included, the meaning of these previsions is yet unsettled. In Awstin
vy. Searing, 16 N. Y., 112, SUANKLAND, J., says that the act of 1851
applies exclusively to associations authorized by statute, and not to
“private voluntary associations or corporations”; but the case went
off upon another ground. In Tidbédetts v. Blood, 21 Barb., 650, the
supreme court, in the eighth district, held that it applied to any
association for business, social, or other lawful purposes, as an Odd
Fellows’ lodge, but doubted whether it extended to a commercial co-
partnership. In DeWitt v. Chandler, 11 Abb. Pr., 459, the supreme
court, in the first district, following the latter case as res adjudi-
cata, held that the statute embraced a missionary society. In remod-
elling the provision, these two decisions of the supreme court have
been followed; and the concluding sentence has been added, whereby
the section is expressly extended to a copartnership. In Corning v.
Greene, 23 Barb., 33, Wricut, J., (p. 47 of the report,) says that
the acts of 1849 and 1851 apply only to cases where the associa-
tion, as such, is interested, and not to those where the inter-
est of each associate is several. The decision was affirmed in the
court of appeals, 26 N. Y., 472, note, but the reasoning of that court
is not given. This rule is correct, with respect to actions by the asso-
ciation, and has been followed in that particular. But where the
action is against the association, the fact, that the liability of the
associates may be several, should not be an objection, and this section
has been framed in accordance with that idea. See on this subject of
the action generally, Hbdinghousen v. Worth Club, 4 Abb. N. C., 300,
note; Shaw v. Cork, 12 Hun, 173; McGrifin v. Dinsmore, 4 Abb. N.
C., 241; National Bank of Schuylerville v. Vanderworker, 74 N.
pay

§ 1920. The death or legal incapacity of a member of the asso-
ciation does not affect an action or special proceeding, brought as
prescribed in the last section. If the officer, by or against whom it
is brought, dies, is removed, resigns, or becomes otherwise incapaci-
tated, during the pendency thereof, the court must make an order,
directing it to be continued by or against his snecessor in office, or
any other officer, by or against whom it might have been originally
commenced.

[The substance of § 2 of the act of 1849, with the addition of the
final clause of this section, beginning “ or any other officer ”. The object
of the final clause is to permit the action or special proceeding to be
continued by or against the treasurer, when the president dies, ete., and
vice versa. It is said that a case has actually happened, where the presi-
dent of an association died while an action was pending against him,
and, no successor having been appointed,-the court held that it had
no power to permit the action to be continued against the treasurer. |

§ 1921. In such an action, the officer against whom it is
brought cani,ot be arrested ; and a judgment agzinst him does not

authorize an execution to be issued against his property, or his per-
304 .
cHAP. xv.] ACTIONS BY OR AGAINST ASSOCIATIONS.

son; nor does the docketing thereof bind his real property or chat-
tels real. Where such a judgment is for a sum of money, an exe-
cution issued thereupon must require the sheriff to satisfy the same,
out of any personal property belonging to the association, or owned
jointly or in common, by all the members thereof, omitting any
direction respecting real property.

toe § 3 and part of § 1, remodelled, without essential change ;
unless the special provision, excluding the real propercy of the asso-
ciation from the lien of a money judgment, is new. The language of
§ 1 is broad enough to include such property ; but if such was its true
construction it required to be altered; for the provisions relating to
docketing a judgment, and the effect thereof, would expose innocent
third persons to injustice, if a judgment, which names only the officer,
can be madea lien upon real property, which stands in the names of
the individual members Section 1923 renders this article permissive
merely ; if a creditor wishes to reach real property, he should sue the

members. As to contribution among the associates, see Morrissey
v. Weed, 12 Hun, 491.]

§ 1922. Where an action has been brought against an officer,
or a counterclaim has been made, in an action brought by an officer,
as prescribed in the last three sections, another action, for the same
cause, shall not be brought against the members of the association,
or any of them, until after final judgment in the first action, and
the return, wholly or partly unsatisfied or unexecuted, of an execu-
tion issued thereupon. After such a return, the party in whose
favor the execution was issued, may maintain an action as follows:

1. Where he was the plaintiff, or a defendant recovering upon a
counterclaim, he may maintain an action against the members of the
association, or, in a proper case, against any of them, as if the first
action had not been brought, or the counterclaim had not been made,
as the case requires; and he may recover therein, as part of his
damages, the costs of the first action, or so much thereof, as the
sum, collected by virtue of the execution, was insuflicient to satisfy.

2. Where he was a defendant, and the case is not within sub-
division first of this section, he may maintain an action, to recover
the sum remaining uncollected, against the persons who composed
the association, when the action against him was commenced, or the
survivors of them.

But this section does not affect the right of the person, in whose

[39] 305

§ 1922.

PART II. 4

Subse-
quent
action
against
members,
§ 1923.

JUSTICE'S
MANUAL,

This
article
per-
missive ;
effect
upon
statute of
limita-
tions.

ACTIONS BY OR AGAINST ASSOCIATION S.[copE CIV. PROC.

favor the judgment in the first action was rendered, to enforce a
bond or undertaking, given in the course of the proceedings therein.

[The first sentence of id., § 4, as amended by I. 1853, ch. 153, com-
pletely remodelled in form and substance. The first clause of the
original section prohibited an action against “any such joint stock
company or association”, except in the mode prescribed in the act.
Apparently, the act of 1851 (ch. 455), extended the like prohibition to
“any company or association” of seven or more persons. The ab-
surdity of applying such a provision to various associations, for
instance, ordinary copartnerships, led to the doubts respecting the
meaning of this act, referred to in the note to § 1919, ante. The pro-
visions of this article are permissive and remedial; the object being to
enable a plaintiff to avoid the necessity of making all the persons in
interest parties, where they exceed seven in number, and have organ-
ized under officers. The prohibitory clause of § 4 of the act of 1849,
as amended in 1853, has therefore been omitted ; and to guard against
a possible misconstruction of this article, an express provision, declar-
ing it to be permissive, has been added as § 1923. The clause insubd.
1 of this section, allowing the party to recover against the associates
the costs of the original action, is in accordance with one of the rul-
ings, in Witherhead v. Allen, 28 Barb., 661. The decision was re-
versed in the court of appeals, 8 Abb. Pr., N. 8. 164, note ; but the
principle established by the reversal 1s not inconsistent with this pro-
vision, which is inherently just. It is unnecessary to discuss in detail,
the other amendments made in framing this section. They are neces-
sary, either to carry out the theory upon which the acts of 1849 and
1851 have been reconstructed, as hereinbefore stated ; or to adapt the
proceedings to the modern procedure. The last sentence of the original
section has been omitted here, If it is necessary to preserve such an
express provision, this is not the proper place for it. |

§ 1923. This article does not prevent an action from being
brought by or against all the members of an association, except as
prescribed in the last section. "Where an action is brought against
the members of the association, as prescribed in subdivision first of
the last section, the time between the commencement of the action
by or against the officer, and the return of the first execution
issued upon the final judgment rendered therein, is not a part of
the time limited by law, for the commencement of the second
action.

[New. The first sentence has been explained in the note to the last
section. The second prevents the statute of limitations from running
in favor of the members, while the action is pending against the officer.
An express provision to that effect seems to be required notwithstand-
ing § 406, ante, especially in view of the expression, ‘‘as if”, etc., in
subd. 1 of the last section. ]

306
cHap. xv.]| ACTIONS BY OR AGAINST OFFICERS. §§ 1924-1926.

§ 1924. Section 1813 of this act applies to an action brought, as
prescribed in the last section but one, against the members of any
association, which keeps a book for the entry of changes in the mem-
bership of the association, or the ownership of its property ; and to
each book so kept.

[New ; framed for the purpose of applying to an action, brought
under the last section but one, against the members of an association,
the provisions of L. 1869, ch. 157, $2 (7 Edm., 426), revised in §
1813, ante, and confined, in both the original and the revised section,
to “stockholders ” and “ stock-books”. See also, § 1945, post.]

ARTICLE SECOND.
ACTIONS BY OR AGAINST CERTAIN COUNTY, TOWN, AND MUNICIPAL OFFICERS.

PRELIMINARY Note.—This article corresponds generally to Part 3,
ch. 8, tit. 4, art. 4 of the R.S. 13 R.8., 5th ed., 774-776; 2 Edm.,
494-4981, entitled, “ Of proceedings by and against public bodies,
having certain corporate powers, and by and against the officers repre-
senting them”. ‘The proceedings thus regulated are those pertaining
not only to actions, but also to the collection of judgments, against
towns and counties, and against the officers who represent them, in
cases where no action lies against them directly. The mode provided
for that purpose is not by execution, or any proceeding in court, but
by levying a tax, or appropriating the public funds, through the action
of the officers having control thereof. The regulations upon that sub-
ject ought, consequently, to be placed with the statutory provisions regu-
lating the powers, duties, etc., of county and town officers; therefore
sections 102-106 of the article of the R. S., and the various subsequent
acts amending the same, have been omitted here. The remaining pro-
visions form the basis of the last six sections of this article.

§ 1926. An action or special proceeding may be maintained, by
the trustee or trustees of a school district ; the commissioner or com-
missioners of highways of a town; the overseer or overseers of the
poor of a town, village, or city; the supervisor of a town; the
county superintendent or superintendents of the poor; or the su-
pervisors of a county, upon a contract, lawfully made with those
officers or their predecessors, in their official capacity ; to enforce a
liability created, or a duty enjoined, by law, upon those officers, or
the body represented by them ; to recover a penalty or a forfeiture,
given to those officers, or the body represented by them; or to

307

PART IT.

When
objection
of mis-
nomer,
etc., of
parties

hot.
available.

Actions by
certain
county,
town, and
municipal
officers.
§§ 1927-1929. ACTIONS BY OR AGAINST OFFICERS. [copz civ. Proc.

JUSTICE'S
MANUAL,

Actions
against
such
officers.

The last
two sec-
tions
qualified.

Designa-
tion of
such
officers in
the sum-
mons, etc.

recover damages for an injury to the property or rights of those
officers, or the body represented by them; although the cause of
action accrued before the commencement of their term of office.

[2 R. 8., 478, Part 3, ch. 8, tit. 4,§ 92(3 R. 8S, dthed., 774; 2
EKdm., 494,) amended so as to correspond to changes made since the
enactment of the R.§. The words, ‘by the loan officers and com-
missioners of loans of a county”, have been omitted, because there are
now no loan officers or commissioners of loans, except the U. 8. loan
commissioners; and actions by them are regulated by L. 1837, ch.
150, § 6, S R.8., 5th ed. 692; 3 Edm., 77). The words, “and by
trustees of gospel and school lots ”, have been also omitted, as the office
has been abolished, and its powers and duties, including, doubtless,
the right to sue and be sued, have been transferred to the supervisor.
L. 1846, ch. 186 (2 R. §., 5th ed., 374; 3 Edm., 461), as amended by
L. 1856, ch. 179, § 27, and L. 1864, ch. 555, tit. 3 § 19 (6 Edm,, 316).
The words, ‘commissioners of common schools”, have been omitted,
because the office has been abolished, and the duties formerly dis-
charged by those officers, out of the performance of which a cause of
action might arise, now devolve upon the supervisor of the town, and
not upon the school commissioners of the county or assembly district
(3 Edm., 510, 511; 6 id., 308). The remaining alterations need no
special explanation. The last clause of this section takes in part of
§ 93 of the same article. |

§ 1927. An action or special proceeding may be maintained,
against any of the officers specfied in the last section, upon any
cause of action, which accrues against them, or has accrued
against their predecessors, or upon a contract made by their prede-
cessors, in their official capacity, and within the scope of their author-
ity.

[The substance of id., § 98. |

§ 1928. The last two sections do not apply to a case, where it
is specially prescribed by law, that an action may be maintained, by
or against the body, represented by an ofticer designated in those
sections; but, in such a case, the prosecution or defence of the
action, as the case may be, must be conducted by the persons then
in office, who represent that body.

[Id, § 94.]

§ 1929. In an action or special proceeding, brought pursuant
to section 1926 or section 1927 of this act, the officer, by or against
whom it is brought, must be described in the summons, or other
process by which it is commenced, and in the subsequent proceed-

308
cHAP. xv.] ACTIONS BY OR AGAINST OFFICERS. §§ 1930-1931.

ings therein, by his individual name, with the addition of his official
title. An objection, growing out of an omission to join any officer,
who ought to be joined with the others, must be taken by the
answer, or, in a special proceeding, before the close of the case, on
the part of the defendant ; otherwise it is waived.

[Id., the first clauses of §§ 93 and 96, and § 99, amended 60 as to
correspond with the change in the mode of procedure. It was held in
Sup’r of Galway v. Stimson, 4 Hill, 136, and Comm’r Highways, etc.,
v. Peck, 5id., 215, that, in this respect, §§ 93 and 96 had the same
meaning, notwithstanding the difference in phraseology. The residue
of § 96 and § 97 are unnecessary. See ante, $$ 548 and 549. |

§ 1930. In such an action or special proceeding, the court
must, in a proper case, substitute a successor in office, in place of a
person made a party in his official capacity, who has died or ceased
to hold office ; but such a successor shall not be substituted as a de-
fendant, without his consent, unless at least fourteen days’ notice of
the application for the substitution, has been personally served upon
him.

[Id., §§ 100 and 101, omitting those portions of §100, which are
sufficiently provided for in §§ 755, 756 and 766, ante. In People ex
rel. Van Valkenburgh v. Sage, 8 How. Pr., 56, it was held, that the
provision for a substitution does not apply to a proceeding by manda-
mus. The section amended makesit thus applicable; but inasmuch
as there are some cases, where a substitution would not be proper, the
words, “in a proper case”, have been added. ]

§ 1931. An execution cannot be issued upon a judgment for a
sum of money, rendered against an officer in an action or special
proceeding, brought by or against him, in his official capacity, pur-
suant to this article; except where it is rendered against the trustee
or trustees of a school district, or the commissioner or commissioners
of highways of a town. In either of those cases, an execution may
be issued against and be collected out of the property of the officer, and
the sum collected must be allowed to him, in the settlement of his
official accounts, except as otherwise specially prescribed by law.

[Id., § 108 and a portion of § 107, remodelled, so as to accord with
the amendments made in the preceding sections, and by omitting the
provision in § 107, allowing officers who have been defeated in a suit
brought in their individual names only, to require the auditing board
to allow them their costs, if the suit was commenced ‘necessarily and
in good faith”. The object of these sections was explained, and their
true construction settled, in Avery vy. Slack,19 Wend., 50. It is

309

PART II.

Successor
may be
substi-
tuted.

When
execution
against
officer not
to issue.
§ 1932.

JUSTICEH’S
MANUAL,

JOINT DEBTORS. [CoDE CIV. PROC.

therein stated, that, in many cases, the officers, for whose protection
they were framed, may suc in their individual names, without adding
their official titles. Butit is always unnecessary, and generally im-
proper, for officers to sue in this way; and such suits are rarely
brought. It seems, therefore, unwise to encumber the statutes, and
embarrass the auditing board, with provisions intended to guard
against such a contingency. ‘The U.S. loan commissioners have been
omitted in the enumeration of the officers, to which the exception in
the statute applies, because the payment of their costs is fully pro-
vided for in § 8 of the act of 1837 (1 R.S., 5th ed., 692 ; 3 Edm., 78).
The trustees of a school district have been retained, although the
mode of levying their costs and expenses is fully provided for by L.
1864, ch. 555, tit. 13, §§ 7-11 (6 Edm., 361-363). This section allows
an execution to issue against them, for which the act of 1864 does not
make provision, while the clause at the end prevents any interference
with the directions of the latter statute, as to the mode of levying the
money to reimburse the trustees. See People ex rel. v. Town Audit-
ors, 75 N. Y., 316.]

ARTICLE THIRD.

ACTIONS AND RIGHTS OF ACTION AGAINST AND BETWEEN JOINT DEBTORS.

Pretiminary Nore.— The first four sections of this article, §§
1932-1935, consist of a revision of the provisions of the Code of Pro-
cedure and of the R. §., relating to taking and enforcing a judgment
against joint debtors, where the summons has been served upon some
of the defendants, but not upon all. In preparing them, it was nec-
essary to remove a discrepancy between the two statutes; and, as the
rule of the R. 8. was adopted, in preference to that of the Code of Pro-
cedure, to make two changes in the then prevailing rules of law, which
were of course those prescribed by the latter statute. Those changes
are pointed out in the note to § 1935; and one of them required a
new provision, which will be found in § 1936. The considerations
which led to theinsertion of the latter, and to the preference of the
rule of the R. 8., whereby it was made necessary, are adverted to in the
note to § 1935, but they can be fully explained only in connection
with the following explanations of the next five sections (§§ 1937-
1941), which constitute a revision of the provisions of the Code of
Procedure, relating to the mode of enforcing the judgment against
the defendants not personally served with the summons. Oo. Proc.,
§ 375, and §§ 377-381.

The mode of so doing is identical with the mode of enforcing
against heirs, devisees, legatees and terre tenants, a judgment taken
against the decedent whom they represent. Id, § 376. The latter
proceedings were designed, by the framers of the Code of Procedure
to take the place of the remedy by scire facias, which was afterwards
formally abolished by § 428 of that act. See p. 235 of the Code of

310
CHAP. XV.] JOINT DEBTORS.

1848, as reported. The writ of scire facias when sued out by a private
person, and the proceedings thereunder, were regulated by 2 R.S.,
576-578, Part 3, ch. 9, tit. 2, §§ 1-11(3 R.S., 5th ed. 895-897); 2
Edm., 597-599. To what extent those provisions continued in force,
and applicable to the new remedy, was a question not settled by judi-
cial construction, when this Code was enacted. But L. 1850, ch. 295
(3 R. &., 5th ed., 642; 4 Edm., 634), rendered practically useless Co-
Proc., § 376, and the entire system of proceeding thereunder. The act
of 1850 is revised, with several amendments and additions in §§ 1380,
1381, of this act. The proceedings under those sections are so ample,
that this article has been confined to proceedings against joint debtors,
leaving Co. Proc. § 376, and the corresponding sections of the R. §.,
to be repealed, without providing any substitutes therefor.

The proceedings under the Code of Procedure evidently did not
constitute an action, although they were commenced by a summons,
and terminated by a judgment, and had, in other respects, many of
the attributes of proceedings in an action. Co. Proc, § 307, last
clause, and $$ 380, 381. It was said in Fairchild v. Durand, 8 Abb.
Pr., 305, that they were taken in the original action, but to this con-
clusion there are many grave objections. The better opinion is, that
they constituted a special proceeding. Co. Proc., § 3. There appears
to be no good reason why this anomaly should be preserved, and there
are many why it should be abolished. Accordingly the following
article provides for obtaining the necessary relief against the joint
debtors, by means of an ordinary action, in the nature of a suit in
equity. In so doing, it was necessary to remove various obscurities
which now surround the subject.

The form of summons, prescribed in § 875 of the Code of Procedure,
required the defendants “‘to show cause why they should not be
bound by the judgment, in the same manner as if they had been origin-
ally summoned ;” and it is supposed, that the judgment contemplated
by § 880 must have been to the effect, that the defendants were thus
bound. This scheme was unobjectionable, with respect to personal
property, which is bound only by an execution; but with respect to
real property, it left undetermined a serious question respecting the
effect of the lien created by the docket of the judgment; and, if the
courts had given effect to this lien, according to the plain language of the
statute, great hardship and even injustice would sometimes have re-
sulted therefrom. For the judgment in the original action, to be
entered under the provisions of § 136, was, in form, against all the de-
fendants, and must, it is supposed, have been docketed, as if all had been
served; and the execution to be issued thereupon, was likewise, in form,
against the property of all, with an indorsement excepting the indi-
vidual property of the defendants not served. The statute contained
no other provision, respecting the execution to be issued upon a judg-

311

§ 1932.

PART II.
§ 1932.

JUSTICES

MANUAL,

Judgment
against
defend-
ants
opel
ndebted,
when all
are not
served.

JOINT DEBTORS. [CODE CIV. PROC.

ment taken under Co. Proc, § 380, except “‘ that judgment may be
given in the same manner as in an action, and enforced by execution”.
It is very doubtful, whether an execution could have been issued upon
such a judgment, to collect any thing but the costs. But in whatever
form the execution might have issued, it seems clear that the lien upon
real property was derived from the docket of the original judgment,
and that the execution must have directed the sheriff to collect it out
of the real property, which the defendant had at that time, or at any
time thereafter. It seems, therefore, that the effect of a judgment taken
under Co. Proc., § 380, was merely to dispense with the necessity of
an indorsement upon the new execution to be issued upon the orig-
inal judgment. It was obviously wrong, if such was the true con-
struction of the statute, that a person’s real property should be sub-
jected, for an indefinite time, to a lien under a judgment recovered
without notice to him, and which he had no means of getting rid of.
Accordingly, § 1936 provides against the future occurrence of these
complications, by limiting the effect of the original docket, as a lien
upon real property, to property owned by the defendants originally
summoned ; and by requiring a new docket, in order to reach the in-
dividual real property of those, who were not summoned. And for
the purpose of completing the system, whereby the proceedings against
a defendant not served are made a new action, the plaintiff is allowed
by § 1940 to procure any provisional remedy, which he could have
procured in the original action. The remainder of the article consists
of provisions relating to other matters connected with the liability of
joint debtors. They are sufficiently explained in the sectional notes.(*)

§ 1932.* In an action, wherein the complaint demands judgment
for asum of money against two or more defendants, alleged to be
jointly indebted upon contract, if the summons is served upon one or
more, but not upon all of the defendants, the plaintiff may proceed
against the defendant or defendants, upon whom it is served, unless
the court otherwise directs; and, if he recovers final judgment, it
may be taken against all the defendants thus jointly indebted.(°)

[Co. Proc., § 136, subd. 1, amended by expressly confining the pro-
vision to an action wherein a money judgment is demanded, and by
omitting the directions as to the manner of enforcement, which were
intended to refer to the provisions of the Revised Statutes, embodied
in the next three sections. See the note to $ 1935, post. There is no
objection to one judgment being taken against joint debtors, served at
different times. Orr v. McHwen, 16 Hun, 625. See, for a case where it
was held that the former statute was not applicable, Freeman v. Bar-
rowclifie, 44 N.Y, Super. Ct., 313.]

312

 

(a) This preliminary note is inserted without abridgment, that the reader may under-
stand the entire scheme of this Code, with reference to enforcing a demand against joint
debtors; but all that ae of the scheme, which relates to the proceedings after the
jodanent, is inapplicable to justices’ courts, and the sections containing it, 88 1938-1941,

ave therefore been omitted.

(b) Applied to justices’ courts by § 3020, page 71.
CHAP. Xv.] JOINT DEBTORS. §§ 1933-1935,

§ 1933.* Such a judgment is conclusive evidence of the liability
of each defendant, upon whom the summons was personally served,
or who appeared in the action. Where it is taken against a defend-
ant, upon whom the summons was served by publication, or with-
out the State, pursuant to an order for that purpose, it has the effect,
as against that defendant, specified in section 445 of this act. As
against such a defendant, who is allowed to defend after judgment,
or as against a defendant not summoned, it is evidence only of the
extent of the plaintifi’s demand, after the liability of that defendant
has been established, by other evidence.(*)

[The first sentence and the conclusion of the third sentence consist
of 2 R. 8, 377, Part 3, ch. 6, tit. 6, §2 (3 R. 5S. 5th ed., 660; 2
Edm., 391, 392), without material change. The second sentence, and
the first clause of the third sentence have been added to conform the
section to the provisions relating to service by publication, etc., which
have been enacted since the R.8., and are revised in ch. 5, tit. 1, art.
2, ante. ]

§ 1934.* An execution upon such a judgment must be issued,
in form, against all the defendants; but the attorney for the judg-
ment creditor must indorse thereupon a direction to the sheriff, con-
taining the name of each defendant, who was not summoned, and
restricting the enforcement of the execution, as prescribed in the
next section. (*)

[Id., § 3. The expression, “who was not summoned”, will not in-
clude the defendants who have been served by publication, etc. ]

§ 1935.* An execution against the person, issued upon such a
judgment, shall not be enforced against the person of a defendant,
whose name is so indorsed thereupon. An execution against prop-
erty, issued upon such a judgment, shall not be levied upon the sole
property of such a defendant; but it may be collected out of per-
sonal property, owned by him, jointly with the other defendants,
who were summoned, or with any of them: and out of the real and
personal property of the latter, or of any of them.(*)

[Id., § 4, amended in matter of substance, by substituting the
word, ‘‘ jointly”, for ‘‘as a partner”. The preservation of this pro-
vision of the R.8., involves the repeal, without providing a substi-
tute, of that part of Co. Proc., § 186, subd. 1, which was omitted in
framing § 1932, ante, and thus effects the changes in the former rule,
referred to in the preliminary note to this article. The omitted por-
tion of Co. Proc., § 186, subd. 1, read as follows: ‘so far only as

[40] 313

 

(a) Applied, with modifications, to justices’ courts, by § 3020, page 71.

PART II.

Effect of
such judg-
ment.

Execu-
tion; in-
dorsement
there-
upon.

How col-
lected.
§§ 1936-1937. JOINT DEBTORS, [CODE CIV. PROC.

JUSTICE’S
MANUAL,

Judgment,
how dock-
eted;
effect of
docketing.

Action to
charge de-
fendants
not per-
sonally
sum-
moned.

that it may be enforce. against the joint property of all, and the sepa-
rate property of the defendants served ; and, if they are subject to
arrest, against the persons of the defendants served ”. The differences
between the former Code and the R. §., are as follows : (1). Co. Proc.,
§ 136, used the unqualified word, “‘ property”, which, ex vi termini, as
well as under Co, Proc., § 464, includes real as well as personal property,
while the Revised Statutes confined the remedy to personal property.
Under this section, the execution could reach only joint personal prop-
erty. The next section contained a special provision relating to real
property. (2). Under the Revised Statutes the execution might be
levied upon personal property petenge jointly to the defendants
served, and any one or more of the defendants not served ; whereas it
would seem that under the Code of Procedure, joint property could
not be levied upon, unless it belonged to all the defendants. This pro-
vision was added to the Code of Procedurein 1851; and itis supposed
that the two changes in the former law, which it makes, were acciden-
tal. The Codes of 1848 and 1849 referred, in general terms, to the R.
8., and ‘probably the intent of the legislature was merely to remove the
restriction, that the joint property to be levied on must be partnership
property only. Sce Merchants’ Exch. Nat. Bk. v. Waitzfelder, 14 Hun,
47, as to the effect of an assignment, during the pendency of the pro-
ceedings to enforce the judgment. |

§ 1936.* Where a judgment has been taken, as prescribed in
section 1932 of this act, the clerk, with whom the judgment-roll is
filed, must write upon the docket, opposite or under the name of
each defendant, upon whom the summons was not served, the words,
“not summoned”; anda like entry must be made by each county
clerk, with whom the judgment is afterwards docketed. The judg-
ment does not, by virtue of its being docketed, bind any real prop-
erty, or chattel real, owned by such a defendant. But this section
does not affect the plaintiffs right of action, to charge the judgment
upon any real property.(*)

[New. Its gencral object is explained in the preliminary note to this
article. |

§ 1937.* After the recovery of a judgment against joint debt-
ors, as prescribed in section 1932 of this act, an action may be main-
tained by the judgment creditor, against one or more of the defend-
ants, who were not summoned in the original action, to procure a
judgment, charging his or their property with the sum remaining
unpaid upon the original judgment.(*)

[Substituted for Co. Proc. § 375, for reasons explained in the pre-
liminary note to this article. The words, “who were not summoned”,
enable the plaintiff to proceed in this manner against a defendant
served by application, etc. Apparently, the permission to sue any or

314

 

(a) Applied to justices’ courts, by § 3021, page 71. But of course the action, specified in
§ 1937, cannot be brought in a justice’s court.
CHAP. Xv.] JOINT DEBTORS.

all of the defendants not summoned, is a departure from the policy of
the original statute, which speaks only of “those” (defendants), ‘‘ who
were not originally summoned”. ]

§ 1942. A joint debtor may make a separate composition with
his creditor, as prescribed in this section. Such a composition dis-
charges the debtor making it; and him only. The creditor must
execute to the compounding debtor a release of the indebtedness, or
other instrument exonerating him therefrom. A member of a part-
nership cannot thus compound for a partnership debt, until the part-
nership has been dissolved by consent or otherwise. In that case
the instrument must release or exonerate him, from all liability, in-
curred by reason of his connection with the partnership. An instru-
ment, specified in this section, does not impair the creditor’s right
of action against any other joint debtor, or his right to take any
proceeding against the latter; unless an intent to release or exon-
erate him, appears affirmatively upon the face thereof.

[L. 1838, ch. 257, §§ 1 and 5, and part of § 2, as amended by L.
1845, ch. 8348 (3 R.S., 5th ed., 65; 4 Edm., 450), consolidated, con-
densed, and amended as follows. The words, “by consent or other-
wise”, in § 1, have been retained, although they are apparently tautol-
ogous, because, in Stitt v. Cass, 4 Barb., 92, the court laid stress upon
them, in its interpretation of the word, “ dissolved”. Section 2 has been
remodelled chiefly for the purpose of abrogating the subtle dis-
tinction, which the courts have established between the ‘note
or memorandum”, contemplated by the act of 1838, and a re-
lease. It is said, in Bank of Poughkeepsie v. Ibbotson, 5 Hill, 461,
that a release to one joint debtor will discharge all, unless it refers to
the statute. To the same effect is Hoffman v. Dunlop, 1 Barb., 185.
See, also, Cornell v. Masten, 35 id. 157. As no particular form of
words is required to effect a release, it is evident, that this doctrine
would often frustrate the intent of the statute, and afford the means
of entrapping a creditor into a surrender of his rights, without his
knowledge. Although a creditor’s covenant never to sue a sole debtor,
or all the joint debtors, operates as a release, and may be pleaded in
bar ; yet it has been held, that a like covenant to one joint debtor does
not protect even him, and his only remedy thereupon is by an action
for damages, although the instrument expressly provides, that, in case
any suit should be brought, etc., it should operate as a release. Couch
vy. Mills, 21 Wend., 424. Fora full discussion of this doctrine and
its effects, with special reference to the statute now under considera-
tion, see Matthews v. Chicopee Manuf. Co., 3 Robt., 711. It was a re-
proach to our jurisprudence, that the rights of parties should depend,
in the most vital particulars, upon the accidental circumstance, that
the instrument executed by the creditor, which might be very informal
in its terms, although a recent case (Morgan v. Smith, 70 N. Y., 537)
holds that it must be under seal, was capable of being legally construed
as a “release ”, whereas, if it was only a ‘‘note or memorandum”,

315

§ 1942.

PARTII.

Joint
debtors
may com-
pound
separately.
Mode an
effect.
§§ 1943-1945. JOINT DEBTORS. [CODE CLV. PROC.

JUSTICES
MANUAL.

Satisfying
judgment.

Rights of
the debt-
ors not

released.

Action
against
persons
engaged in
transpor-
tation.

directly opposite consequences would follow. In truth, the whole
doctrine of the common law, respecting the effect of a release to one
joint debtor, was very artificial, and inconsistent with the prevailing
theory of jurisprudence. It is safe to say, that, in ninety-nine cases
out of one hundred, where all the joint debtors have been released, in
consequence of a release to one of them, the result has been attained
through the creditor’s ignorance of the law, and against his intention.
Where the creditor means to release all the debtors, the instrument
plainly expresses that intention ; where he releases but one, he means
to reserve his claim against the others. This section conforms the
rule of law to this plain common sense proposition. The phrase at
the commencement of § 3 of the act of 1838, apparently indicates,
that the legislature had the same object in view, when that act was
passed, but if so, their intention was inadequately expressed in the
other sections. |

§ 1943. An instrument, specitied in the last section, is deemed
a satisfaction-piece, for the purpose of discharging, as prescribed in
section 1260 of this act, the docket of a judgment, recovered upon
an indebtedness released or discharged thereby, as far as the judg-
ment affects the compounding debtor. Where the docket of a judg-
ment is discharged thereupon, a special entry must be made upon
the docket, to the effect, that the judgment is satisfied, as to the
compounding debtor only.

[The remainder of id., § 2, remodelled as required by the regulations
respecting satisfaction pieces, contained in § 1260 of this act. ]

§ 1944. Where a joint debtor has thus compounded, a joint
debtor, who has not compounded, may make any defence or coun-
terclaim, or have any other relief, as against the creditor, to which he
would have been entitled, if the composition had not been made.
He may require the compounding debtor to contribute his ratable
proportion of the joint debt, or of the partnership debts, as the case
may be, as if the latter had not been discharged.

[The substance of §§ 3 and 4 of the same statute. ]

§ 1945. In an action brought against one or more persons en-
gaged, as a joint-stock association, partnership, or otherwise, in the
periodical transportation of passengers or property, an objection to
any of the proceedings cannot be taken, by a person properly made
a defendant, on the ground that the plaintiff has joined with him,
as a defendant, a person not jointly engaged with him in that busi-
ness, or on the ground that the plaintiff has failed so to join with

316
CHAP. Xv.| JOINT DEBTORS.

him a person so jointly engaged ; unless the persons so engaged have,
at least thirty days before the commencement of the action, filed in
the clerk’s office of each county, in which they transport passengers
or property, a statement, showing the names of all of them. A
statement so filed, is conclusive, for the purposes specified in this
section, as against the persons filing it, until thirty days after filing,
in like manner, a new statement, showing a change of interest.

[L. 1836, ch. 385 (3 R. 8., 5th ed., 778; 4 Hdm., 621), condensed
into one section, and remodelled in general conformity to § 1813
of this act.]

§ 1946. Where, for any cause, one or more partners have not
been joined as defendants in an action upon a partnership liability,
and final judgment has been taken against the persons made defend-
ants therein, the plaintiff, if the judgment remains unsatisfied, may
maintain a separate action upon the same demand, against each
omitted partner, setting forth in the complaint the facts specified in
this section, as well as the facts constituting his cause of action upon
the demand.

[Co. Proc., § 136, subd. 4, omitting the last clause. ]

317

§ 1946.

PART II.

When
partner
not sued|
remains |
liable.
§§ 1961-1962. ACTIONS BY THE PEOPLE. [covE crv. Proo.

JUSTICE’S
MANUAL.

CHAPTER XVI.

(Exrracts.)

ACTIONS IN BEHALF OF THE PEOPLE, AND SPECIAL
PROCEEDINGS INSTITUTED, IN THEIR BEHALF, BY
STATE WRIT.

TITLE I.
Actions in behalf of the people.

ARTICLE THIRD.

ACTION FOR A FINE, PENALTY, OR FORFEITURE, OR UPON A FORFEITED
RECOGNIZANCE,

When § 1961. Whenever, by the decision of the general term of the

action

cannot be 5 ea ase . " s ‘ :
canne supreme court, or of a superior city court, a construction is given to

tained. a statute, an act done, in good faith, and in conformity to that con-

struction, after the decision was made, and before a reversal thereof
by the court of appeals, isso far valid, that the party doing it is not
liable to any penalty or forfeiture, for an act that was adjudged law-
ful by the decision of the court below. But this section does not
control or affect the decision of the court of appeals, upon an appeal
actually taken before the reversal.

[2 R. S., 602, Part 3, ch. 9, tit. 3, § 66 (2 Edm., 624).]

Action for § 1962. Where real or personal property has been forfeited, or
ete. a penalty incurred, to the people of the State, or to an officer, for
their use, pursuant to a provision of law, the attorney-general, or the
district-attorney of the county in which the action is triable, must
bring an action to recover the property or penalty, in a court having
jurisdiction thereof. Where the supreme court and a justice’s court
have concurrent jurisdiction of the action, it may be brought in either,
at the election of the attorney-general or district-attorney. A recovery
in such an action bars a recovery, in any other action, brought for

the same cause.
318
CHAP. XVI.| ACTIONS BY THE PEOPLE. §§ 1963-1968.

Co. Proc., § 447; 2R.8.,481, Part 3, ch. 8, tit. 6, § 3, first sentence
(2 Edm., 503). ]

§ 1963. Money recovered in such an action, which is not other-
wise specially granted or appropriated by law, must, when collected, be
paid into the treasury of the State.

[Remainder of § 3 of the R. 8.]

§ 1964. Sections 1897 and 1898 of this act apply to an action,
brought as prescribed in the last two sections.

[Substituted for §§ 17 and 15 of the R. 8.]

§ 1965. Where the condition of a recognizance is broken, an
order of the court, directing the prosecution of the recognizance, is a
sufficient forfeiture thereof.

[Id., § 31.]

§ 1966. Where a recognizance to the people is forfeited, the
district-attorney of the county in which it was taken, must, unless
the court otherwise directs, forthwith bring an action to recover the
penalty thereof. It is not necessary, in such an action, to allege or
prove any damages, by reason of the breach of the condition ; but
where the people are entitled to judgment therein, they must have
judgment absolute, for the penalty of the recognizance.

[Id., § 29.]

§ 1967. Within thirty days after a district-attorney receives or
collects money upon a recognizance, or for a penalty or forfeiture,
belonging to the county, he must pay it to the county treasurer of
his county, deducting only his necessary disbursements ; except that,
where he does not receive, as his compensation, a salary fixed pur-
suant to law, the county court may, by an order entered in its min-
utes, allow him to retain also a sum, specified in the order, for his
reasonable costs and expenses, and a reasonable counsel fee.

[Id., § 32. See L. 1852, ch. 304, §§ 1 and 6 (3 Edm., 336), and L.
1870, ch. 752, §1(7 Edm, 777).]
§ 1968. Each district-attorney must render to the first term of the

county court of his county, held in each calendar year, a written
319

PART II.

Money
recovered ;
how dis-
posed of.

Certain
roceed-
ings in the

action
regulated.

Recogniz-
ance; how
forfeited.

Action
on recog-
nizance.

Money
received by
district-
attorney;
how dis-
posed of.

District-
attorney
to render
account.
§§ 1984-1986, ACTIONS BY THE PEOPLE. [cops crv. Proc.

MANUAL: account, verified by his affidavit, of all actions brought by him upon

recognizances, or for penalties or forteitures belonging to the county,
or to the State; of all his proceedings therein; of all judgments
recovered by him therein ; and of all money, collected by him from
any person, belonging to the county or the State. This section ap-
plies to a district-attorney who has gone out of office during the pre-
ceding calendar year.

[Id., §§ 34, 35, 36.]

ARTICLE SIXTH.

MISCELLANEOUS PROVISIONS, RELATING TO ACTIONS, ETC., IN BEHALF OF THE
PEOPLE.

fctionsto’ ~— § 1984. An action, brought as prescribed in this title, except an

hameof action to recover a penalty or forfeiture, expressly given by law to
the people.

a particular officer, must be brought in the name of the people of
the State ; and the proceedings therein are the same, as in an action
by a private person, except as otherwise specially prescribed in this
title.

[New. ]

Judgment § 1985. Where judgment is rendered, or a final order is made,
for costs 7

maybe —_ against the people, in a civil action brought, or special proceeding

ainstthe . |. . : ‘ . zis
people, instituted, in their name, by a public officer, pursuant to a provision

of law, it must be to the same effect, and in the same form, as
against a private individual, who brings a like action, or institutes a
like special proceeding, except as otherwise specially prescribed by
law. But an execution shall not be issued against the people.

[2 R. 8., 552, Part 3, ch. 8, tit. 17, § 13 (2 Edm., 573).]

Relator; § 1986. Where an action is brought by the attorney-general, as
Folned as prescribed in this title, on the relation or information of a person,
plaintiff ;

compensa- having an interest in the question, the complaint must allege, and

general’ the title of the action must show, that the action is brought upon

the relation of that person. In such a case, the attorney-general

must, asa condition of bringing the action, require the relator to

give satisfactory security to indemnify the people, against the costs
320
CHAP. XvI.] HABEAS CURPUS TO TESTIFY. §§ 1990-2008.

and expenses thereof. Where security is so given, the attorney-
general is entitled to compensation for his services, to be paid by the
relator, in like manner as the attorney and counsel for a private

person.
[Co. Proc., § 434. See § 3242, post. ]

§ 1990. Each provision of this act, requiring a party to give
security, for the purpose of procuring an order of arrest, an injunc-
tion order, or a warrant of attachment, or as a condition of obtain-
ing any other relief, or taking any proceeding; or allowing the
court, or a judge, to require such security to be given; is to be con-
strued, as excluding an action brought by the people of the State, or
by a domestic municipal corporation; or by a public officer, in behalf
of the people, or of such a corporation; except where the security,
to be given in such an action, is specially regulated by the provision
in question.

TITLE II.

Special proceedings instituted by State writ.

ARTICLE SECOND,

THE WRIT oF HaBEAs CORPUS, TO BRING UP A PERSON TO TESTIFY.

PRELIMINARY Notz.—The following sections of this article are in-
serted herein, because they refer to and affect proceedings in justices’
courts, although no proceeding can be taken under them in such
courts.

§ 2008. A court of record, other than a justices’ court of a city,
or a judge of such a court, or a justice of the supreme court, has
power, upon the application of a party to an action or special pro-
ceeding, civil or criminal, pending therein, to issue a writ of habeas
corpus, for the purpose of bringing before the court, a prisoner, de-
tained in a jail or prison within the State, to testify as a witness in
the action or special proceeding, in behalf of the applicant.

[2 R. 8. 559, Part 3, ch. 9, tit. 1, § 1 (2 Edm., 580). ]

[41] 321

PART II.

When
people,
municipal
corpora-
tion,

etc,, not
required
to give
security.

Habeas
corpus to
testify;
when
allowece by
court or
judge.
§§ 2010-2011. HABEAS CORPUS TO TESTIFY. [copE crv. proc.

JUSTICE’S
MANUAL.
Id.; in suit

before
justice of
the peace,
etc.

Writ not
to issue to
bring up
prisoner
under
death
sentence;
nor for
felony,
except on
applica-
tion of
people.

§ 2010. Such a writ may also be issued by a justice of the
supreme court, upon the application of a party to an action, pend-
ing before a justice of the peace, or in a justices’ court of a city, or
a district court of the city of New-York, to bring before the jus-
tice or court, to be examined as a witness, a prisoner confined in the
jail of the county where the action is to be tried, or an adjoining
county. In a case specified in this section, the writ may also be
issued by a judge of a superior city court, a county judge, or a
special county judge, residing within the county where the justice
resides, or the court is located, or the prisoner is confined, as the
case may be.

[Id., § 4.]

§ 2011. [Amended, 1880.] A writ shall not be issued, by virtue
of either of the last three sections, to bring up a prisoner, sentenced
to death. Nor shall it be issued to bring up a prisoner confined
under any other sentence for a felony ; except where the application
is made in behalf of the people, to bring him up as a witness on the
trial of an indictment; and then only by and in the discretion of a
justice of the supreme court, or a judge of a superior city court,
upon such notice to the district-attorney of the county wherein the
prisoner was convicted, and upon such terms and conditions, and
under such regulations, as the judge may prescribe.

[From id., § 1.]

822
cHap. Xvir.] SUMMARY PROCEEDINGS FOR LAND.

CHAPTER XVII.

(EXTRACTS.)

CERTAIN SPECIAL PROCEEDINGS INSTITUTED
WITHOUT WRIT.

TITLE II.
Summary proceedings to recover the possession of real property.

Pretiminary Nore.— The enactments revised in this title are 2
R. S., 507-516, Part 3, ch. 8, tit. 10 (3 R.S., 5th ed., 831-840; 2
Edm., 523-534), entitled ‘‘ Summary proceedings to recover the pos-
session of land in certain cases,” and the subsequent amendatory and
supplemental acts, to wit: LL. 1842, ch. 240,§1 (3 R.S., 5th ed.,
840; 4 Kdm., 661); L. 1849, ch. 193 (3 RB. S., 5th ed., 836, 837, 840;
2 Edm., 529, 531, 533, 534) ; L. 1851, ch. 460; L. 1857, ch. 684 (3 R.
S., 5th ed., 837, 838, 839 ; 2 Edm., 529, 530, 531, 532); L. 1862, ch.
368 (2 Edm., 531); L. 1863, ch. 189 (6 Edm., 86); L. 1868, ch. 764 (7
Edm., 335); id., ch. 828 (7 Edm., 355); L. 1873, ch. 583 (9 Edm., 653) ;
L, 1874, ch. 208, and id., ch. 471 (9 Edm., 874, 961); L. 1876, ch. 356;
and L. 1877, ch. 187. The provisions of these statutes have been
greatly condensed ; not only by amendments of the language used, the
consolidation of separate provisions relating to similar subjects, and
the omission of superfluous provisions; but also by providing a
common mode of procedure for the different classes of cases of which
they treat. The corresponding title of the R. 8. is divided into two
articles, to wit: article 1, entitled, ‘‘Of forcible entries and detain-
ers,” and article 2, entitled, “Summary proceedings to recover the
possession of land in other cases ;” and the remedies under the two
articles are different, in substance and in form. The statutes from
which article 1 was taken, were originally of a criminal character, and
their object was rather to punish the wrong-doer, than to restore the
possession to the person wrongfully dispossessed ; and although they
were afterwards so modified as to be strictly remedial in their character,
the mode of procedure was analogous to that in criminal proceedings,
and too intricate and expensive to be of much practical value. Indeed,
the expression, “‘summary,” as applied to the proceedings under
article 1, was a misnomer ; for the necessary inquisition before a quasi
grand jury, the traverse thereof, and the usual certiorari to the supreme
court, with the difficulties and doubts necessarily attending an anoma-

823

§ 2281.

“PART I.
§ 2231.

JUSTICE’S

MANUAL,

When
tenant
may be
removed.

SUMMARY PROCEEDINGS FOR LAND. [cops crv. Proc.

lous and unusual mode of procedure, constituted asystem, under which
a complainant would rarely be restored to possession, sooner than he
would be by the ordinary action of ejectment. As the effect of the pro-
ceedings was only to restore the possession, without trying the title,
it was thought unnecessary to preserve them in the form of a separ-
ate remedy; and, accordingly, this title consolidates the two articles,
and thus provides one method in all cases to recover summarily the
possession of land. The remedy under §§ 24-27 of the R.8. (article
2), by a view, etc., of deserted premises has also been abolished. Itis
unnecessary, since the abolition of distress for rent, as the landlord
may obtain possession, in such a case, in the same manner as in other
cases, ample provision being made for service of the precept.

As a summons is now the appropriate process for the commence-
ment of a civil action, the word, “precept”, which was the name of
the initial process in proceedings under article 1 of the R. 8., has
been adopted to designate the process by which each of the special
proceedings taken under this title is commenced. Fora similar rea-
son, a petition has been substituted, in place of the “complaint,”
under article 1, and the “affidavit,” under article 2; and a final
order in place of the “award” and the “judgment,” under article 2.

§ 2231. In either of the following cases, a tenant or lessee at will,
or at sufferance, or for part of a year, or for one or more years, of
real property, including a specific or undivided portion of a house,
or other dwelling, and his assigns, undertenants, or legal representa-
tives, may be removed therefrom, as prescribed in this title:

1. Where he holds over and continues in possession of the
demised premises, or any portion thereof, after the expiration of his

‘¢term, without the permission of the landlord.

2. Where he holds over, without the like permission, after a
default in the payment of rent, pursuant to the agreement under

‘which the demised premises are held, and a demand of the rent has

been made, or at least three days’ notice in writing, requiring, in the
alternative, the payment of the rent, or the possession of the prem-
ises, has been served, in behalf of the person entitled to the rent,
upon the person owing it, as prescribed in this title for the service
of a precept.

3. Where he, being in possession under a lease for a term of three
years or less, has, during the term, taken the benefit of an insolvent
act, or has been adjudicated a bankrupt, under a bankrupt law of the
United States.

824
cHAP. xvi.] SUMMARY PROCEEDINGS FOR LAND.

4. Where the demised premises, or any part thereof, are used or
occupied as a bawdy-house, or house of assignation for lewd persons,
or for any illegal trade or manufacture, or other illegal business.

[2 R. 8., 512, Part 3, ch. 8, tit. 10, § 28, subd. 1, 2and3 (3 R.8.,
5th ed., 886 ; 2 Edm., 529), as amended by L. 1849, ch. 1955 also §
55, added to the same title by L. 1868, ch. 764, §1 (7 Edm., 335) ;
and L. 1873, ch. 583, § 1 (9 Edm., 653) ; consolidated, with several
amendments, none of which materially affect the true construction of
the former statutes. The expression in § 28 of the R.S., “assigns,
undertenants or legal representatives ” has been retained, under which
it was held, that where a landlord took these proceedings against his
tenant, and an undertenant in possession was nob made a party, a
warrant, following a judgment for the petitioner, to remove “‘all per-
sons ” from the premises, and put the petitioner into possession, was a
protection to the marshal for ejecting the undertenant, but that the
landlord was liable to the latter in damages, as for trespass. Croft,
Adnv’x, v. King, Evr, N. Y. C. P.,19 A. L. J. 441. In subd. 2, the
words, ‘‘in the alternative”, have been inserted for greater clearness ;
and the words, “in behalf of”, have been substituted for “by”, to
avoid the possible construction that the notice must be served by the
landlord personally. It was held, in People v. Dudley, 58 N. Y., 328, that
a demand of the rent may include interest from the time of the default.
The ruling will be equally applicable to this subdivision as amended.
See, also, People ex rel, Morgan v. Neteltas, 12 Hun, 67. The proceed-
ings cannot be taken fora failure to pay taxes, pursuant to a cov-

8 2282,

PART II.

enant in the lease, although the lease contains a provision avoiding it -

in case of such a failure. People ex rel. Jay v. Bennett, 14 Hun, 58.
Where, during the hfe of a lease, the landlord and the tenant entered
into a contract for the sale of the property to the latter, providing
that it should be void if it was not fulfilled by a specified time, and
the tenant failed to fulfil the contract of sale by the time specified,
and afterwards rent was paid upon the lease, held, that the landlord
might maintain these proceedings, although valuable improvements
had been made while the contract of sale was in force; and that the
effect of the summary proceedings was to restore the landlord to pos-
session, free from all claims under the lease or contract. Bostwick v.
Frankfield, 11 Hun, 475. In subd. 3, the words ‘‘ he being in pos-
session under a lease for” have been substituted in place of ‘‘ the ten-
ant or lessee of”, so as to correspond with the phraseology of the
other subdivisions; and the final clause has been substituted for “ under
any act for the relief of his person from imprisonment ”, as being broader
than the original. Subd. 4 contains the substance of the provisions
of the acts of 1868 and 1873, without material change.]

§ 2232. In either of the following cases, a person, who holds
over and continues in possession of real property, after notice to
quit the same has been given, as prescribed in section 2236 of this
act, and his assigns, tenants, or legal representatives, may be removed
therefrom, as prescribed in this title:

1. Where the property has been sold by virtue of an execution

325

Person
holding
over land
sold, etc.,
may be
removed.
§ 2233. SUMMARY PROCEEDINGS FOR LAND. [copz crv. proc

JUSTICES
ANUAL. against him, or a person under whom he claims, and a title under

the sale has been perfected.

2. Where the property has been duly sold, upon the foreclosure,
by proceedings taken as prescribed in title ninth of this chapter, of
a mortgage executed by him, or a person under whom he claims,
and the title under the foreclosure has been duly perfected.

3. Where he occupies or holds the property, under an agreement
with the owner to occupy and cultivate it upon shares, or for a share
of the crops, and the time, fixed in the agreement for his occupancy,
has expired.

4. Where he, or the person to whom he has succeeded, has in-
truded into, or squatted upon, a parcel of land, in a city or incor-
porated village, without the permission of the person entitled to the
possession thereof, and the occupancy, thus commenced, has con-
tinued without permission from the latter; or after a permission
given by him has been revoked, and notice of the revocation given
to the person or persons to be removed.

[Subd. 1, 2, and 3 of this section consist of subd. 4 of § 28 of the
R. §., referred to in the note to the last section, as amended by L.
1874, ch. 208, and subd. 5, added by id., ch. 471; and also the last
sentence of § 31 of the same title; the whole remodelled and amended
as follows: The introductory clause, and subd. 1, have been recon-
structed in accordance with the construction given to the correspond-
ing provisions of the R.8., in Spraker v. Cook, 16 N. Y., 567. In
subd. 2, L. 1874, ch. 208, has been amended, so as to confine the
remedy to a foreclosure, by advertisement as prescribed in title 9th of
this chapter, of a mortgage executed by the person in possession, or
some one under whom he claims. It is unnecessary to extend this
remedy to a purchaser under a foreclosure by action, for the judg-
ment always provides for letting the purchaser into possession. The
restriction of. the provision to a case where a person against whom the
proceeding is taken, is in privity with the mortgagor, is probably in ac-
cordance with the true construction of the act of 1874. Subd.3 contains
the substance of L. 1874, ch. 471. Hach of the acts of 1874 is so framed,
that a previous notice to quit is apparently unnecessary, in the new
case which it creates; but itis presumed that the omission was inadvert-
ent. As this section is remodelled, such a notice will be necessary.
Subd.4isnew. It was suggested by L. 1857, ch. 396, §§ 1 and 2 (4
Edm., 617), which make the acts herein provided for a misdemeanor,
The owner will be much more effectually protected, and restored to
his rights, by conferring upon him this civil remedy. See People v.
Hovey, 4 Lans., 86.]

Id.; in § 2233. An entry shall not be made into real property, but in a

case of

forcible case where entry is given by law; and, in such a case, only in a

detainer. 326
cHAP. xvi] SUMMARY PROCEEDINGS FOR LAND.

peaceable manner, not with strong hand, nor with multitude of
people. A person who makes a forcible entry forbidden by this
section, or who, having peaceably entered upon real property, holds
the possession thereof by force, and his assigns, undertenants, and
legal representatives, may be removed therefrom, as prescribed in
this title.

§ 2234,

PART II.

[This section is a substitute for 2 R.S., 507, Part 3, ch. 8, tit. 10,

§§ l and 2 (3 R.S., 5th ed., 831; 2 Hdm., 523). The essential lan-
guage of the original has been preserved unaltered. The reasons
for inserting here this section, and the other provisions which
are necessary to adapt the proceedings taken under this title, to cases
of forcible entry and detainer, have been explained in the preliminary
note. Where the owner of land wrongfully held out of possession, re-
gains possession peaceably, he may maintain it, and consequently may
lawfully resist an attempt of the former occupant to retake possession,
y guilty of a wrongful detainer. Bliss v. Johnson, 73 N.
., 529.

§ 2234. Application for the removal of a person from real
property, as prescribed in this title, may ‘be made to the county
judge or special county judge of the county, or a justice of the
peace of the city or town, or the mayor or recorder of the city,
wherein the real property, or a portion thereof, is situated.
Application may also be made, if the property, or a portion thereof,
is situated in the city of New-York, to the city judge, or judge of
the court of general sessions, of that city, or to a justice of the
marine court of that city, or to the district court of the district
within which the property, or a portion thereof, is situated; if in
the city of Brooklyn, to a police justice of that city; if in the city
of Albany, or the city of Troy, to a justice of the justices’ court
of that city; if in the city of Yonkers, to the city judge of that
city ; if in the city of Rochester, to a judge of the municipal court
of that city.(*)

[In this section, as it was proposed by the commissioners, and con-
tained in the bills which passed both houses in 1877 and 1878, the
jurisdiction to entertain these proceedings was restricted to those
officers who were supposed to have leisure to attend to this business,
and indeed now practically monopolize it. But the governor, in his
veto message of 1878, having charged that this title “ substantially
destroys this useful and inexpensive method of obtaining possession,”
it was deemed best, in the bill of 1878, to waive this, with other in-
tended improvements in the former laws relating to this subject, in
the hope of avoiding another veto, Accordingly this section repro-

B27

 

(a) L. 1880, ch. 235, § 3, limits the civil jurisdiction of village police justices to cases where
the viilage is.a party in interest. L. 1880, ch. 256, § 6, requires summary proceedings in
Brooklyn to be broughi in the district where the land, or a portion thereof, is situated, or
in an adjoining district. Each of those acts was passed after this Code.

Applica
tion; to
whom
made.
§ 2235. SUMMARY PROCEEDINGS FOR LAND. [cops crv. proc.

JUSTICE'S :

MANUAL. duces, without change, the statutory provisions in force when this
act was passed relating to jurisdiction in these proceedings. As to
county judges, see § 28 of the R.S., as amended by L. 1849, ch. 193
(3 BR. S., 5th ed., 836; 2 Edm., 529); Const. art. 6,§ 15. Special
county judges: Const., 1846, art. 6, § 15; L. 1849, ch. 806; L. 1851,
ch. 108; Const., art. 6 (1869), § 16. Mayors, recorders, and justices
of the peace: section 28 of the R. S., as amended in 1849. City judge
of the city of New York: L. 1850, ch. 205, § 3. Id., judge of the
court of general sessions: L. 1875, ch. 259, § 1. Id., justices of the
‘marine court: sec. 28 of the R. 8. Id., district courts: sec. 28 of
the R. 8., as amended in 1849; L. 1852, ch. 324,§ 1; UL. 1857, ch.
344, § 77, subd. 2; L. 1863, ch. 189 (6 Edm., 86) ; Co. Proc., § 66, as
amended by L. 1870, ch. 741, § 4 (7 Edm., 774); L. 1877, ch. 187.
See People v. Third Dist. Court, 57 How. Pr. 443. Brooklyn police
justice : L. 1870, ch. 386. Justices of the justices’ court of Albany :
L. 1821, ch. 47, § 1 (3 R.S., 5th ed., 399); sec. 28 of the R. 8. Id.,
of Troy: L. 1834, ch. 271, §$ 1 and 19 (3 R.S., 5th ed., 417, 421) ;
sec. 28 of the R. 8. City judge of Yonkers: L. 1872, ch. 866, tit. 4,
§ 1, 8d and 4th sentences; L. 1873, ch. 61, § 2; L. 1878, ch. 186,
§7%. Judges of the municipal court of Rochester: L. 1876, ch. 196,
§§ 5 and 16. The jurisdiction conferred upon “the city judge”
of Brooklyn, by L. 1849, ch. 125, § 26 (see § 28 0f the R. S., as origin-
ally enacted), was withdrawn by the amendment of that section,
effected by L. 1870, ch. 470, § 13. The jurisdiction conferred upon
the justices of the superior court of Buffalo, by L. 1854, ch. 96, § 25,
as amended by L. 1857, ch. 361, § 6 (see § 28 of the R. 8, as
originally enacted), was withdrawn by the repeal of each of those sec-
tions in 1877. An attempt to amend this section, at the legislative
session of 1880, by adding a provision embodying the substance of the
amendment made by L. 1879, ch. 101, failed by a disagreement be-
tween the houses, on the last day of the session, respecting another
provision of the amendatory bill. It seems clear that the act of 1879
is repealed by this section, and by L. 1880, ch. 245, § 1 subd. 3,
and § 2.]

Petition | § 2235. The application may be made by the landlord or lessor of

epee? * the demised premises; the purchaser upon the execution or fore-

st closure sale; the person forcibly put out or kept out; the person

with whom, as owner, the agreement was made, or the owner of the
property occupied under an agreement, to cultivate the property upon
shares, or for a share of the crops; or the person lawfully entitled
to the possession of the property intruded into or squatted upon, as
the case requires; or by the legal representative, agent, or assignee _
of the landlord, purchaser, or other person, so entitled _to apply.
The applicant must present to the judge or justice, a written petition,
verified in like manner as a verified complaint in an action brought
‘in the supreme court; describing the premises of which the posses-
sion is claimed, and the interest therein of the petitioner, or the per-
328
cHAP. xvil.] SUMMARY PROCEEDINGS FOR LAND.

§ 2236.

PART II.

son whom he represents ; stating the facts, which, according to the 5
provisions of this title, authorize the application by the petitioner,
and the removal of the person in possession ; naming, or otherwise
intelligibly designating, the person or persons against whom the
special proceeding is instituted, and, if there are two or more such
persons, and some are undertenants or assigns, specifying who are |

principals or tenants, and who are undertenants or assigns; and

praying for a final order to remove him or them accordingly. (*)

[Parts of §§ 2, 3 and 29, of the R. 8., consolidated, and amended
so as to correspond to the preceding sections; also by substituting a
verified petition for a “complaint” or “affidavit,” and by adapting the
language to the ruling in Weyman v. Johnson, 8 Alb. L. J., 382, and
in Wiggin v. Woodruff, 16 Barb., 474. See, also, the amendment in
§ 223%, post, and the note to that section. In other respects this sec-
tion retains the essential language of the provisions, from which it
has been compiled. They have been the subject of adjudication in
numerous cases. Benjamin v. Benjamin, 5 N. Y. (1 Seld.), 383; Deel
vy. Rust, 24 Barb. 438; Cunningham v. Goelet, 4 Denio, 71; Hill v.
Stocking, 6 Hill, 314; Hallenbeck v. Garner, 20 Wend., 22; Simpson
y. Rhinelanders, id., 103; Prindle v. Anderson, 19 Wend., 391; Peo-
ple v. Boardman, 4 Keyes, 59; People v. Matthews, 38 N. Y., 451;
People v. Andrews, 52 N. Y., 445, and many others. The provision
that the petition may be verified in like manner as a complaint in an
action in the supreme court, renders it unnecessary to make any spe-
cial provision for the verification in New-York city, as to which the
former statutes on that subject raised a grave question, which was
finally settled by the court of appeals in Brown v. The Mayor, etc., 66
N. Y., 385; and see Jarvis v. Driggs, 69 N. ¥., 146. Of course under
this section the verification may be made before any officer author-
ized to take affidavits by §§ 842 and 844. |(>)

§ 2236. Where the person to be removed is a tenant at will, or at Notice to
sy : be gi
sufferance, the petition must state the facts, showing that the tenancy in certain

has been terminated, by giving notice, as required by law. Where
the application is made in a case specified in section 2232 of this act,
the petition must state that a notice, in behalf of the applicant, re-
quiring all persons occupying the property to quit the same, by a
day therein specified, has been either served personally upon the
person or persons to be removed, or affixed conspicuously upon the
property, at least ten days before the day specified therein.

[The first sentence consists of the first sentence of § 31 of the R.8.
The second has been substantially taken from L. 1857, ch. 396, §§ 2
and 8 (4 Edm., 617). Where one enters and occupies land with the
owner’s consent under an oral lease, which is void by the statute of
frauds as being for more than a year, the occupation is a tenancy from
year to year, during the time specified in the oral agreement, and the

[42] 329

 

(a) The provisions regulating the verification of a complaint in the supreme court, are
§§ 525 and 526, on pages 204, 205.
(b) Pages 220, 221.
-§§ 2237-2238. SUMMARY PROCEEDINGS FOR LAND. [cops ctv. Proc,

JUSTICH'S : : .
MANUAL. lessor has aright, during any year of the occupancy, to terminate the

Pet tlon:
y neigh-
bor of
bawdy-

house, etc.

Precept.

tenancy on the last day of the then current year, by a notice to quit,
but not otherwise; and until such a notice is given, and the year ex-
pires to which it relates, the tenant cannot be put out. The notice
can be given only by the holder of the legal title ; a person who has
taken a contract of sale from the landlord cannot give it. Whether
after the expiration of the time specified in the oral agreement, it is
necessary to give such a notice, query.  teeder v. Sayre, 70 N. Y.,
180. As to the requisites of a notice to quit, see People ex rel. San-
\ ford v. Gedney, 15 Hun, 475, and 1 R. 8. 745, §§ 7 and 8 (1 Edm.
( 696), requiring a month’s written notice. ]

§ 2237. An owner or tenant of real property, in the immediate
neighborhood of other demised real property, which is used or occu-
pied as a bawdy-house, or house of assignation for lewd persons, may
serve personally upon the owner or landlord of the premises, so used
or occupied, or upon his agent, a written notice, requiring the owner
or landlord to make an application for the removal of the person so
using or occupying the same. If the owner or landlord, or his agent,
does not make such an application, within five days thereafter; or,
having made it, does not in good faith diligently prosecute it; the
person giving the notice may make such an application, stating in his
petition, the facts so entitling him to make it. Such an application
has the same effect, except as otherwise expressly prescribed in this
title, as if the applicant was the landlord or lessor of the premises.

[Sections 56 and 61, added to the R. 8. by L. 1868, ch. 764 (7 Edm.,
335), amended by adding “‘ demised” and ‘‘ diligently.” The former
word conforms the language of the statute to its true meaning, as
understood by the draftsmen of this Code; for although the expres-
sion, ‘tenant, if any,” as used in § 63, added to the R. 8. by the same
act, implies that at some period, during the passage of the act, its
application to an owner who keeps a bawdy-house, etc., was regarded
as possible, the whole tenor of the act indicates the contrary. Indeed,
proceedings of this kind against the owner, where he is the guilty per-
son, are absurd; for the petitioner cannot have possession, and a man
cannot be turned out of his own property, whatever offence he may
commit thereupon. A remedy in such a case must be sought in some
other manner.]

§ 2238. The judge or justice, to whom a petition is presented, as
prescribed in either of the foregoing sections of this title, must there-
upon issue a precept, directed to the person or persons designated
in the petition as being in possession of the property, and requiring

{ him or them forthwith to remove from the property, describing it ;
4 or to show cause, before him, at a time and place specified in the
330
CHAP. xvi] SUMMARY PROCEEDINGS FOR LAND. § 2239.

precept, why possession of the property should not be delivered a a

the petitioner, or, in the case specified in the last section, to the
owner or landlord. The precept must be returnable, not less than

three nor more than five days after it is issued ; except that, where

the proceeding is taken, upon the ground that a tenant continues in

possession of demised premises, after the expiration of his term,

without the permission of his landlord, and the application is made

on the day of the expiration of the lease, or on the next day thereaf-

ter, the precept may, in the discretion of the judge or justice, be

made returnable on the day on which it is issued, at any time after

twelve o’clock, noon, and before six o’clock in the afternoon.

[Id., § 30, as amended by L. 1851, ch. 460, and L. 1868, ch. 828”
§ 1 (7% Edm., 355). The process has been called a ‘‘ precept” instead
of a “summons,” as explained in the preliminary note to this title.
The words, “ the person or persons designated,” etc., have been sub-
stituted for “any person in possession of the premises, or claiming
the possession thereof,” in accordance with the ruling in Ail? v. Stock-
ing, 6 Hill, 314; Cunningham v. Goelet, 4 Denio, 71; and Sims v.
Humphrey, id., 185; and the last clause of the first sentence has been
added, for the reason stated in the note to the last section. This sec-
tion also covers §§ 57 and 62, added to the R. S. by L. 1868, ch. 764
(7 Edm., 335). |

§ 2239. In the city of New-York, where the application is made qa-; in
to a district court, the petition must be filed with, and the precept ao
must be issued by, the clerk of the court; and the precept must be
made returnable before the court, at the place designated, pursuant
to law, for holding the court ; and all subsequent proceedings in the
cause must be had at that place, except as otherwise prescribed in
section 2246 of this act. If, upon the return of the precept or upon
an adjourned day, the justice is unable, by reason of absence from
the court room or sickness, to hear the cause, or it is shown by aftida-
vit that he is for any reason disqualified to sit in the cause, or is a
necessary and material witness for either party, a justice of any other
district court of the city may act in his place at the same court room,

[From L. 1863, ch. 189 (6 Edm., 86), as modified by the amend-
ment made in 1870, to Co. Proc., § 66; and by L. 1876, ch. 356, § 1;
and L. 1877, ch. 187, § 1. The latter statute is in some respects very
obscure; its provisions have been reproduced in § 2234, ante, this sec-
tion, and § 2246, post, as nearly as they could be understood, with
some modifications designed to promote the convenience of the court
and parties. The amendatory bill, mentioned in the note to § 2234,

331
§§ 2240-2241. SUMMARY PROCEEDINGS FOR LAND. [cops clv. Proc.

MANUALS ante, amended this section, in accordance with L. 1879, ch. 102, so as
to require the service of the precept to be made by a marshal. But,
in the editor’s opinion, its failure does not prevent the act of 1879
from applying; because that act is saved by L. 1880, ch. 245 § 3, subd.
9. See note to § 8215. ](+)

sve”  § 2240. The precept must be served as follows:

1. By delivering, to the person to whom it is directed, or, if it is
directed to a corporation, to an officer of the corporation, upon whom
a summons, issued out of the supreme court, in an action against the
corporation, might be served, a copy of the precept, and at the same
time showing him the original.

2. If the person, to whom the precept is directed, resides in the
city or town in which the property is situated, but is absent from his
dwelling house, service may be made by delivering a copy thereof,
at his dwelling house, to a person of suitable age and discretion, who
resides there; or, if no such person can, with reasonable diligence,
be found there, upon whom to make service, then by delivering a
copy of the precept, at the property sought to be recovered, either
to some person of suitable age and discretion residing there, or if no
such person can be found there, to any person of suitable age and
discretion employed there.

3. Where service cannot, with reasonable diligence, be made, as
prescribed in either of the foregoing subdivisions of this section, by
affixing a copy of the precept upon a conspicuous part of the property.

If the precept is returnable on the day on which it is issued, it
must be served at least two hours before the hour at which it is re-
turnable ; in every other case, it must be served at least two days
before the day on which it is returnable.

[Section 52 of the R.8., as amended by L. 1857, ch. 684, and L. 1868,
ch. 828 (7 Edm., 356), omitting the last sentence of the amendment
of 1868, which is taken into § 2243, post. The original is in some
respects very obscure; it has been amended so as to make its supposed
meaning clearer, without any change in the substance of the provi-
sion; except that the words, “suitable age and discretion,” have been
substituted throughout, in place of “mature age.” The provisions
regulating service on a corporation, accord with and apply one of the
rulings in Brown v. Mayor, etc., of New York, 66 N. Y., 385.]

Duty of § 2241. A person, to whom a copy of a precept, directed to an-

person to

oe ; _ other, is delivered, as prescribed in this title, must, without any
Pe is

Cliverca, avoidable delay, deliver it to the person to whom it is directed, if
332

(a) Page 141.
OHAP. xvi1.] SUMMARY PROCEEDINGS FOR LAND. §§ 2242-2243,

he can be found within the same town or city; or, if he cannot be
sofound, to his agent therein; and if neither can be so found, after the
exercise of reasonable diligence, before the time when the precept is
returnable, to the judge or justice who issued the same, at the time
of the return thereof, with a written statement indorsed thereupon,
that he has been unable, after the exercise of reasonable diligence, to
find the person to whom the precept is directed, or his agent, within
the town or city. A person, who wilfully violates any provision of
this section, is guilty of a misdemeanor; and, if he is a tenant upon
the property, forfeits to his landlord the value of three years’ rent
of the premises occupied by him. <A copy of this section must be
indorsed upon each copy of a precept, served otherwise than per-
sonally upon the person to whom it is directed.

[L. 1868, ch. 828, § 3 (7 Edm., 356); and 1 R. S., 748, Part 2, ch. 1,
tit. 4, § 27 (3 R. S, 5th ed. 37; 1 Edm,, 699).]

§ 2249. Where the case is within section 2237 of this act, the
precept must be directed to and served upon the owner or landlord,
or his agent, and also upon the tenant or occupant of the property.
Either or both of them may, upon the return day, appear and show
cause why the tenant or occupant should not be removed from the
property.

[Parts of §§ 63 and 64, added to the R. 8. by L. 1868, ch. 764 (7
Edm., 336). ]

§ 2243. At the time when the precept is returnable, the petition-
er must, unless the adverse party appears, make due proof of the ser-
vice thereof, showing the time, and the place and manner of service ;
and, unless service was made personally upon the adverse party, or
by affixing a copy of the precept, the name of the person to whoma
copy of the precept was delivered, if his name can be ascertained
with reasonable diligence. Where service is made by a sheriff, con-
stable, or marshal, it may be proved by his certificate, stating the
facts.

[The first sentence has been taken from § 33 of the R. 8., and the
last sentence of § 32, as amended by L. 1868, ch. 828 (7 Edm., 336).
The second sentenceis new. It has been held that proof of service
may be made orally. Robinson v. McManus, 4 Lans., 380. The expres-
sion under which this ruling was made has been retained. As to the

333

PART II.

When
precept

to be
served on
landlord
of bawdy-
house,

etc,

Proof of
service of
precept.
§§ 2244-2245. SUMMARY PROCEEDINGS FOR LAND. [CODE CIV. PROC,
MANUAL, sufficiency of an affidavit of service, under the former statute, upon

sal defendants, see People ex rel. Crawford v. De Camp, 12 Hun,
78.

Answer, . § 22944. At the time when the precept is returnable, without
waiting, as prescribed in an action before a justice of the peace, or
in a district court of the city of New-York, the person to whom it
is directed, or his landlord, or any person in possession or claiming
‘possession of the premises, or a part thereof, may file, with the judge
or justice who issued the precept, a written answer, verified in like
manner as a verified answer in an action in the supreme court, deny-
‘ing generally the allegations, or specifically any material allegation,
of the petition.

[Part of §§ 7 and 34 of the R.S., as the latter section was amended
by L. 1857, ch. 684; further amended by adding the clause, beginning
“without waiting” to settle a doubtful question of construction; by
substituting a verified answer for an affidavit; and by requiring the
denials thereof to conform substantially to an answer in an action.
The former statute allowed a denial of the ‘facts upon which said
summons was issued, or any of those facts.” Under this expression
the court of appeals have recently held that the defendant might set
up matters tending to prove the tenancy voidable or void; such as,
duress, usury, etc.” People v. Howlett, 76 N. Y.,574. This ruling
appears to be applicable to the section as now framed. In Brooklyn
the answer must be filed with the clerk (§ 3119); and the same is the
rule, it is believed, in a district court of New-York city. See §§ 2234,
2239, and 2246 of this act, and the unrepealed provisions of the old
statutes, regulating the duties of the clerk, etc.]

issues | § 2245. Where the application is founded upon an allegation of

ae ‘ forcible entry or forcible holding out, the petitioner must allege and

ee prove that he was peaceably in actual possession of the property, at
the time of a forcible entry, or in constructive possession, at the time
of a forcible holding out; and the adverse party must either deny
the forcible entry, or the forcible holding out, or allege, in his
defence, that he, or his ancestor, or those whose interest he claims,
had been in quiet possession of the property, for three years together
next before the alleged forcible entry or detainer; and that his in-

terest is not ended or determined, at the time of the trial.

[Id., §§ 6 and 11, amended by substituting “‘ the alleged forcible
entry or detainer,’’ for ‘the said inquisition;” which expression des-
ignates, in the original, the substantial commencement of the pro-
ceedings. In this section, and §§ 2233 and 2235, ante, the essential
language of the original, which is explained and construed by NEL-

334
CHAP. XvII.] SUMMARY PROCEEDINGS FOR LAND. §§ 2246-2248,

son, J., in People v. Van Nostrand, 9 Wend., 50, has been carefully eee

preserved. |

§ 2246. In a district court of the city of New-York, at the time mn. y.

district
of joining issue, the justice sitting in the cause may, in his discre- court,
j / cause may
tion, upon motion of either party, or, if no justice is present, the potca'és ;

: : another
clerk may, by consent of both parties, make an order transferring court for
Tia.

the cause for trial, to a district court of an adjoining district, which
thereupon has the same jurisdiction and power, at its own court
house, as if the property was situated within its district.

[Part of L. 1877, ch. 187, § 2, modified as stated in the note to §
2239, ante.]

§ 2247. The issues, joined by the petition and answer, must be} Trial.
tried by the judge or justice ; unless a party, or one of two or more
parties, answering as prescribed in the last two sections, files, with |
the answer, a written demand that the issues so joined be tried by a \
jury; and at the same time pays to the judge or justice, or to the |
clerk, the fees of the jurors, and of the officer for notifying them. |
In that case, the issues must be tried by a jury, in like manner as an
issue of fact joined in an action, in the court of which the judge or
justice, who issued the precept, is the presiding officer; and all the
provisions of this act, relating to procuring and empanelling a jury ;
the trial of an issue of fact by a jury; and the proceedings upon
such a trial, including those relating to the mode of compelling the
attendance of a witness, and to the punishment of a defaulting wit-
ness or juror, in that court, apply to the trial of an issue so joined,

except as otherwise expressly prescribed in this title.

[The first sentence consists of the remainder of id., § 34, without
material change. The second covers, by general provisions, the sub-
stance of §§ 35-38; as § 36 was amended by L. 1862, ch. 368. Where
one. of the defendants (an undertenant), appeared, but the other
(the landlord) did not appear, held that an adjournment of the entire

proceeding by consent of the defendant appearing was proper.
Brown v. Mayor, etc., of New-York, 66 N. Y., 385.]

§ 2248. At the time when issue is joined, the judge or justice\sajourn-
may, in his discretion, at the request of either party, and upon proof’
to his satisfaction, by affidavit or orally, that an adjournment is neces- 4
sary, to enable the applicant to procure his necessary witnesses, or by /
335
§§ 2249-2250. SUMMARY PROCEEDINGS FOR LAND. [CODE CIV. PROC,

y
gusricn’s | é 3 : ;
‘MANUAL. ,consent of all the parties who appear, adjourn the trial of the issue,

Final
order upon
trial.

Amount of

lected.

-but not more than ten days; except by consent of all parties.

[Id., § 41. See the note to the last section as toan adjournment by
consent of one defendant only, the other being in default. ]

§ 2249. If sufficient cause is not shown upon the return of the
precept; or if the verdict of the jury, or the decision of the judge
or justice, upon a trial without a jury, is in favor of the petitioner ;
the judge or justice must make a final order, awarding to the peti-
tioner the delivery of the possession of the property; except that,
where the case is within section 2237 of this act, the final order
must direct the removal of the occupant. In cither case, the final
order must award to the petitioner the costs of the special proceed-
ing. If the verdict or decision is in favor of the person answering,
the judge or justice must make a final order accordingly, and award-
ing to him the costs of the special proceeding.

[Id., parts of §§ 33, 39 and 51, the latter section having been added
to the R. 8. by L. 1849, ch. 193 (3 R.S., 5th ed. 840; 2 Edm., 533);
consolidated, and amended by applying the provisions to § 2237, ante.
The final order, though taken by default, is conclusive in an action by
the landlord to recover the rent, as to all the matters of fact stated in
the affidavit (petition) which are required to be so stated by the stat-
ute. Brown v. The Mayor, etc., of New-York, 66 N. Y., 385. But
although it is conclusive that some rent is due, it is not conclusive
that the amount due is correctly stated in the affidavit (petition).
Jarvis vy. Driggs, 69 N. Y., 148. It was held by the supreme court,
in a case where these proceedings were taken bya purchaser under an
execution sale, that the judge can regard only the legal title; and thata
decision in favor of the purchaser, based upon that title, does not estop
a person removed from subsequently establishing by action a superior
equitable title. Terrett v. Cowenhoven, 11 Hun, 320. See as to the
rights of the owner of the legal title, Reeder v. Sayre, 70 N. Y., 180,
cited in the note to § 2236, ante.]

§ 2250. Costs, when allowed, and the fees of officers, except
where a fee is specially given in chapter 21 of this act, must be at
the rate allowed by law in an action in a justice’s court, or, in
the city of New-York, in a district court, and are limited in like
manner ; unless the application is founded upon an allegation of for-
cible entry or forcible holding out; in which case, the judge or jus-
tice may award to the successful party a fixed sum as costs, not exceed-
ing fifty dollars, in addition to his disbursements. The final order
awarding costs may be docketed, and an execution may be issued to

336
CHAP. xvi] SUMMARY PROCEEDINGS FOR LAND. §§ 2251-2253-

 

 

collect the costs awarded thereby, in like manner as if the final order *4**™

was a judgment, rendered in the court, of which the judge or justice
is the presiding officer.

[Id., the remainder of § 51, and parts of §§ 12, 13, and 22, amended,
in matter of substance, by adding, at the end of the first sentence, the
words following ‘‘ the successful party.” The original statute does not
fix the amount of costs upon a proceeding for forcible entry and
detainer. The costs of a suit in a justice’s court are manifestly inad-
equate in such a case. |

§ 2251. Where the final order is in favor of the petitioner, the warrantto

: i 3 A : dispossess
judge or justice must thereupon issue a warrant, under his hand, defendant.

directed to the sheriff of the county, or to any constable or marshal
of the city or town, in which the property, or a portion thereof, is
situated, describing the property, and commanding the officer to
remove all persons therefrom, and also, except where the case is
within section 2237 of this act, to put the petitioner into the full
possession thereof.

[Id., parts of §§ 13, 33 and 39 (as the latter section is amended by
L. 1857, ch. 684), and of §§ 58, 59, 63 and 64, added to the R. 8. by
L. 1868, ch. 764 (7 Hdm., 335); consolidated, without substantial
change. It would seem, that the warrant ought expressly to save the
rights of persons, not parties, and not claiming under the defeated
party; but as the form of the warrant, as prescribed in the R. 8., has
been so Jong in use, no amendment thereto was made. The warrant
protects the constable in ejecting persons not parties to the special
proceeding; but in such a case the complainant is liable to an action
by a person, not a party, who is ejected by virtue thereof. See Croft,
Adivaz, v. King, Hx., cited in the note to § 2231, ante. See, also,
Pursell v. N. Y. Life Ins. & Trust Co. 42 N. Y. Superior Ct. (10
Jones & Spencer), 383. Sections 63 and 64, added by the act of 1868,
provide that the warrant must require the removal of “‘ the persons on
whom the summons was served; ” but as the landlord must be made
a a the language of the R. 8S. is more applicable to such a war-
rant.

§$ 2252. The officer, to whom the warrant is directed and deliv- Bxecution
ot war-
ered, must execute it, according to the command thereof, between tt.

the hours of sunrise and sunset.

[Id., § 40, amended by the addition of the last seven words. ]

§ 2253. The issuing of a warrant, for the removal of a tenant when
warrant

from demised premises, cancels the agreement for the use of the cancels

premises, if any, under which the person removed held them; and °*°eP!o-

annuls accordingly the relation of landlord and tenant, except that
[43] 337
§ 2254,

JUSTICE'S . : :
MANUAL. it does not prevent a landlord from recovering, by action, any sum

Warrant;
when and
how
stayed.

SUMMARY PROCEEDINGS FOR LAND. [copz crv. proc.

of money, which was, at the time when the precept was issued, pay-
able by the terms of the agreement, as rent for the premises ; or the
reasonable value of the use and occupation thereof, to the time when
the warrant was issued, for any period of time, with respect to which
the agreement does not make any special provision for payment of
rent.

[The first sentence has been taken from id., § 43, remodelled, and
amended by adding the final clause. It covers also, in its present
form, § 60, added to the R.S. by L. 1868, ch. 764 (7 Edm., 336), The
remainder of the section is new in form; but it is in accordance with
the construction given to the original in Hinsdale v. White, 6 Hill,
507; McKeon v. Whitney, 3 Denio, 452; Crane v. Hardman, 4 E. D,
Smith, 339; Cushingham v. Phillips, 1 id., 416; Davison v. Donadi, 2
id., 121; Whitney v. Meyers, 1 Duer, 266; except that this section set-
tles the doubt left by those cases, respecting rent due in advance. It
seems only just that the issuing of a precept should bar any subse-
quent claim for advance rent. With respect to a claim for use and
occupation, the rule should be different; and accordingly the issuing

of the warrant hag been fixed as the time for the termination of such
a claim. ]

§ 2254. The party, against whom a final order ismade, requiring
the delivery of possession to the petitioner, may, at any time before
a warrant is issued, stay the issuing thereof; and also stay an exe-
cution to collect the costs, as follows:

1. Where the final order establishes that a lessee or tenant holds
over, after a default in the payment of rent, he may effect a stay, by
payment of the rent due, and the costs of the special proceeding ;
or by delivering to the judge or justice, or the clerk of the court,
his undertaking to the petitioner, in such a sum and with such sure-
ties as the judge or justice approves, to the effect, that he will pay
the rent and costs, within ten days: at the expiration of which time
a warrant may issue, unless he produces to the judge or justice satis-
factory evidence of the payment.

2. Where the final order establishes that a lessee or tenant has
taken the benefit of an insolvent act, or has been adjudicated a
bankrupt, he may effect a stay, by paying the costs of the special
proceeding, and by delivering to the judge or justice, or the clerk
of the court, his undertaking to the petitioner, in such a sum and
with such sureties as the judge or justice approves, to the effect, that

338
CHAP. xvii] SUMMARY PROCEEDINGS FOR LAND. §§ 2255-2256.
a

he will pay the rent of the premises, as it has become, or thereafter oy

becomes due.

3. Where the final order establishes that the person, against whom
it is made, continues in possession of real property, which has been
sold by virtue of an execution against his property, he may effect a
stay, by paying the costs of the special proceeding, and delivering
to the judge or justice, or the clerk of the court, an affidavit, that he
claims the possession of the property, by virtue of a right or title,
acquired after the sale, or as guardian or trustee for another ; together
with his undertaking to the petitioner, in such a swn and with such
sureties as the judge or justice approves, to the effect, that he will
pay any costs and damages, which may be recovered against him, in
an action of ejectment to recover the property, brought against him
by the petitioner within six months thereafter ; and that he will not
commit any waste upon or injury to the property, during his occu-
pation thereof.

[Taken from § 44 of the R. §., as amended by L. 1857; ch. 684, and
8§ 45 and 46 of the R.S. The principal amendment consists of the
substitution of an undertaking for a bond. In subd. 3, the words,
‘‘and damages,” have been substituted for “the value of the use and
occupation,” etc., as, under § 1497 of this act, such value may be re-
covered as damages in the action of ejectment. It was not deemed
expedient to extend this provision to foreclosure sales, as the legis-
lature has not done so, and its policy is questionable. ]

§ 2255. Where an undertaking is given, in a case specified in wnaertak-
subdivision first of the last section, the judge or justice must deliver disposed.
itto the person against whom the final order was made, upon his pro- ,
ducing the evidence of payment, mentioned in that subdivision. If
he does not produce such evidence within ten days, the judge or
justice must deliver it to the petitioner. In every other case speci-
fied in the last section, the judge or justice must deliver the under-
taking to the petitioner, immediately after his approval thereof.

[New. The second sentence is explained by reference to § 2253,
ante, and note. The first and third sentences need, 1t is believed, no
explanation. ]

§ 2256. Where the special proceeding is founded upon an alle- Redemp-
gation that a lessee holds over, after a default in the payment of rent, lessee.
and the unexpired term of the lease, under which the premises are
held, exceeds five years, at the time when the warrant is issued; the

339
§ 2254,

JUSTICE’S

MANUAL.

Id.; by
creditor
of lessee.

SUMMARY PROCEEDINGS FOR LAND. [CODE CIV. PROC.

lessee, his executor, administrator, or assignee, may, at any time
within one year after the execution of the warrant, pay or tender to
the petitioner, his heir, executor, administrator, or assignee, or if,
within five days before the expiration of the year, he cannot, with
reasonable diligence, be found within the city or town, wherein the
property, or a portion thereof, is situated, then to the judge or justice
who issued the warrant, or his successor in office, all rent in arrear
at the time of the payment or tender, with interest thereupon, and
the costs and charges incurred by the petitioner. Thereupon the
person, making the payment or tender, shall be entitled to the
possession of the demised premises, under the lease, and may hold
and enjoy the same, according to the terms of the original demise,
except as otherwise prescribed in the next section but one.

[L. 1842, ch. 240, part of § 1(3 R.S., 5th ed., 840; 4 Edm., 661),
amended by adding the words, “his heir....situated,” and “or his
successor in office ”; also the words, ‘‘ with interest thereupon”; the
latter amendment being in accordance with Crawford v. Waters, 46
Tow. Pr., 210. This statute appears to be very dangerous and objec-
tionable; but the commissioners did not think themselves authorized
to omit it, or to recommend any radical changes in its provisions. But
the amendments made in this section remove some expressions of
doubtful meaning, and avoid some hardships to the landlord, to which
it is unnecessary to expose him. ]

§ 2257. Ina case specified in the last section, a judgment credit-
or of the lessee, whose judgment was docketed in the county, before
the precept was issued, or a mortgagee of the lease, whose mortgage
was duly recorded, in the county, before the precept was issued, may,
at any time before the expiration of one year after the execution of
the warrant, unless a redemption has been made as prescribed in the
last section, file with the judge or justice who issued the warrant, or
with his successor in oftice, a notice, specifying his interest and the
sum due to him ; describing the premises ; and stating that it is his
intention to redeem, as prescribed in this section. If a redemption
is not made by the lessee, his executor, administrator, or assignee,
within a year after the execution of the warrant, the person so filing
a notice, or, if two or more persons have filed such notices, the one
who holds the first lien, may, at any time before two o’clock of the
day, not a Sunday or a public holiday, next succeeding the last day
of the year, redeem for his own benefit, in like manner as the lessee,

340
CHAP. xvi1.} SUMMARY PROCEEDINGS FOR LAND.

his executor, administrator, or assignee, might have so redeemed.
Where two or more judgment creditors or mortgagees have filed
such notices, the holder of the second lien may so redeem, at any
time before two o’clock of the day, not a Sunday or a public holiday,
next succeeding that in which the holder of the first lien might have
redeemed ; and the holder of the third and each subsequent lien,
may redeem, in like manner, at any time before two o’clock of the
day, not a Sunday or a public holiday, next succeeding that in which
his predecessor might have redeemed. But a second or subsequent
redemption is not valid, unless the person redeeming pays or tenders
to each of his predecessors who has redeemed, the sum paid by him
to redeem, and also the sum due upon his judgment or mortgage ;
or deposits those sums with the judge or justice, for the benefit of
his predecessor or predecessors.

[This section is a substitute for that part of the same statute, which
reads as follows:

*« And any mortgagee of the lease, or of any part thereof, who shall
not be in possession of the demised premises, or any judgment cred-
itor of the lessee, who shall, within one year after the execution of
such warrant, pay all rent in arrear, all costs and charges as aforesaid,
and perform all the agreements which ought to be performed by the
first lessee, shall not be affected by such recovery; and such judgment
creditor may file a suggestion of such payment upon the record, and
may issue execution for the amount of the original judgment and of
such payment.”

It is very evident that the original opened the door to a litigation,
the effects of which might be felt even more severely by the landlord,
than by the creditors or assigns of the lessee. Stuyvesant v. Grissler,
12 Abb. N.5., 6, and People v. Fowler, 8 Alb. L. J., 207, afford instances
of the complications to which it may give rise. Indeed, the provision
allowing a judgment creditor, by a “suggestion upon the record,” to
collect from the tenant the sum paid by him, is contrary to all the
principles of redemption. Evidently a mortgagee or a judgment
creditor may acquire a valuable interest under this statute, without
cost to himself. ‘This section affords a mitigation of the evils to which
the act of 1842 exposes the parties, especially the landlord, whose orig-
inal misfortune, in having a bad tenant, that statute apparently aims
to aggravate indefinitely; and establishes a rule, which is more
equitable to all concerned. But, after all these amendments, 1t is more
than probable that the evils of these provisions will far outweigh their
possible benefits. See also the next section, and the note thereto.]

§ 2258. Where a redemption is made, as prescribed in either of
the last two sections, the rights of the person redeeming are subject
toa lease, if any, executed by the petitioner, since the warrant was

issued, so far that the new lessee, his assigns, undertenants, or other
341

§ 2258.

PART II.

The last
two sec-
tions
qualified.
§§ 2259-2260. SUMMARY PROCEEDINGS FOR LAND. [cops civ. Proc.

JUSTICE’S

MANUAL.

Order to
be made
there-
upon;
liability
of person
redeem-
ing.

Appeal.

representatives, may, upon complying with the terms of the lease,
hold the premises so leased until twelve o’clock, noon, of the first
day of May, next succeeding the redemption. And, in all other
respects, the person so redeeming, his assigns and representatives,
succeed to all the rights and liabilities of the petitioner, under such a
lease.

[New. Prepared to mitigate some of the hardships of the orig-
inal upon the landlord, who, under its provisions, could not safely
lease the premises until the expiration of the time to redeem.]

§ 2259. The person redeeming, as prescribed in the last three sec-
tions, or the owner of the property so redeemed, may present to the
judge or justice who issued the warrant, or to his successor in office,
a petition, duly verified, setting forth the facts of the redemption,
and praying for an order, establishing the rights and liabilities of the
parties upon the redemption. Whereupon the judge or justice must
make an order, requiring the other party to the redemption to show
cause before him, at a time and place therein specified, why the
prayer of the petition should not be granted. The order to show
cause must be made returnable, not less than two nor more than ten
days, after it is granted; and it must be served at least two days be-
fore it is returnable. Upon the return thereof, the judge or justice
must hear the allegations and proofs of the parties, and must make
such a final order as justice requires. The costs and expenses must
be paid by the petitioner. The final order, or a certified copy there-
of, may be recorded in like manner as a deed. A person, other than
the lessee, who redeems as prescribed in the last three sections, suc-
ceeds to all the duties and liabilities of the lessee, accruing after the
redemption, as if he was named as lessee in the lease.

[New. As the last three sections may affect interests of great value,
common justice requires that, if they are to be retained in the statute
book, some record evidence of the rights and liabilities of the parties
should be preserved, as proposed in the first six sentences of this sec-
tion. The last sentence supplies an omission in the act of 1842.]

§ 2260. An appeal may be taken from a final order, made as pre-
scribed in this title, to the same court, within the same time, and in
the same manner, as where an appeal is taken from a judgment
rendered in the court, of which the judge or justice is the presiding

342
cHAP. XvIL.] SUMMARY PROCEEDINGS FOR LAND. §§ 2261-2262.

officer, and with like effect; except as otherwise prescribed in the "4*” »

next two sections.

[See the note to the next section. ]

§ 2261. The issuing or execution of the warrant cannot be stayed Biect of

by such an appeal, or by the giving of an undertaking thereupon, Dora

cases.
otherwise than as prescribed in the next section. An appeal cannot

be taken to the court of appeals, from a final determination of the
general term of the supreme court or of a superior city court, upon

such an appeal, unless the latter court, by an order, made at the
general term where the final order is made, or the next general term
thereafter, allows it to be taken.

[This and the last section have been substituted for § 47 of the R.
8., as amended by L. 1868, ch. 828 (7 Edm., 357), which permits the
supreme court to issue a certiorari; and the first sentence of § 52,
added to the R. 8. by L. 1849, ch. 193 (8 R.6., 5th ed., 840; 2 Edm.,
534), which grants an appeal to the county judge. The effect of these
provisions has been the subject of much conflict of opinion. People v.
Willis, 5 Abb. Pr., 205; People v. Bigelow, 11 How. Pr., 83; Davis v.
Hudson, 5 Abb. Pr., 61; Carpenter v. Greene,6 N. Y. Sup. Ct. (T. &
C.) 550; People v. Perry, 16 Hun, 461. It is unnecessary, however,
to insert in this act any special provision to settle the questions
presented by these cases. ‘The general plan of this Codeis to abol-
ish the certiorari, in all cases where it is practicable to review the
decision by appeal; and these sections will effect that purpose, in cases
arising under this title, by the terms of § 2122, subd. 3 of this act.
Under the former statute, it would seem that the decisions of the dis-
trict courts of New-York could bereviewed only by certiorari. The last
section will transfer the jurisdiction to review them, asin other cases,
to the common pleas, and require them to be reviewed by appeal; and
the prohibition of a stay, preserved in this section and in § 2265, post,
which is not affected by the next section, will remove the only serious
objection to the change. As the statute thus prescribes only one mode
of review in this class of cases, and assimilates the proceedings there-
upon to those which obtain in all other cases, where the decisions of
the same officers are reviewed, the provision of § 52 of the R. 8. that
the decision (upon appeal to the county judge) “shall be an affirm-
ance or reversal of such judgment, and be final,” has been omitted. ]

§ 2262. Where an appeal is taken from a final order, awarding Warrant
OW

delivery of possession to the petitioner, which establishes that a stayed on
lessee or tenant holds over, after a default in the payment of rent,
the issuing and execution of the warrant may, except in the city
and county of New-York, be stayed by the order of the county
judge. Such an order can be made only upon the appellant’s giving
the security required to perfect the appeal, and to stay the execution

343
§§ 2263-2264. SUMMARY PROCEEDINGS FOR LAND. [cops civ. Proc.

 

JUSTICE’S
MANUAL,

Appellate
court may
award
restitu-
tion ;
action for
damages.

Applica-
tion of
this title;
effect of
final order.

of the order appealed from, and also an undertaking to the peti-
tioner, in a sum, and with sureties, approved by the county judge,
to the effect, that if, upon the appeal, a final determination is ren-
dered against the appellant, he will pay all rent accruing or to accrue
upon the premises, or, if there is no lease thereof, the value of the
use and occupation of the premises, subsequent to the institution of
the special proceeding.

Ca remainder of § 52, added to the R. 8. by L. 1849, ch. 193 (3
R.8., 5th ed., 840; 2 Edm., 534). The exception, where the proceed-
ings are taken in New-York city, is but declaratory of the existing
provision of law, the retention of which is required by circumstances
peculiar to that city. It was held in Sage v. Harpending, 49 Barb.,
166, that the provision relating to a stay does not apply to the case of
a tenant, holding over after the expiration of his lease. The clause,
near the end,relating to “use and occupation,” is new. |

§ 2263. If the final order is reversed upon the appeal, the ap-
pellate court may award restitution to the party injured, with costs ;
and it may make any order, or issue any other mandate, necessary to
carry its determination into effect. The person dispossessed may
also maintain an action, to recover the damages which he has sus-
tained by the dispossession.

[Sections 48 and 49 of the R. S., amended so as to be applicable to
an appeal, but in other respects without material change. The orig-
inals were construed in Chretien v. Doney, 1 N. Y. (1 Comst.), 419 ;
People v. Matthews, 38 N. Y., 451, affirming 43 Barb., 168; Wolcott v.
Schenk, 16 How. Pr., 449; People v. Hamilton, 15 Abb. Pr., 328;
and People v. McCaffrey, 42 Barb., 530.

§ 2264. This title does not impair the rights of a landlord, lessor,
or tenant, in a case not therein provided for. Where a special statu-
tory provision confers a right to take proceedings, in the manner
heretofore prescribed by law, for the summary removal of a person
in possession of real property, the proceedings thereunder must be
taken as prescribed in this title. A final order, made in a special
proceeding, taken as prescribed in this title, is not a bar to an action
of ejectment, to recover the property affected thereby.

[Id., § 50, amended by adding, for greater caution, the second and
third sentences, as the language of the original statutes has been con-
siderably changed. The second sentence refers to provisions like
those contained in L. 1850, ch. 144, tit. 5, § 40; L. 1854, ch. 384, tit.

. 6, § 33; and L. 1862, ch. 298, § 1 (4 Edm., 14~16).]

344
cHap. xvii] SUMMARY PROCEEDINGS FOR LAND. § 2265.

eer . ke Gallet II.
§ 2265. Where a petition is presented, as prescribed in this ae oe
eedings

the proceedings thereupon before the final order, and, if the final under this

title to be
order awards delivery of the possession to the petitioner, the issuing ee

or execution of the warrant thereupon, cannot be stayed or suspended

by any court or judge, except in one of the following methods:

1. By an order made, or an undertaking filed, upon an appeal, in -
a case and in the manner specially prescribed for that purpose in this
title.

2. By an injunction order, granted in an action against the peti-
tioner. Such an injunction shall not be granted before the final {
order in the special proceeding, except in a case where an injunction |
would be granted to stay the proceedings, in an action of ejectment, |
brought by the petitioner, and upon the like terms; or after the final .
order, except in a case where an injunction would be granted to stay |
the execution of the final judgment in such an action, and upon the
like terms.

[Substituted forso much of § 47 of the R. 8., as provides that
“the proceedings upon any such application shall not be stayed or
suspended by such writ of certiorari, or any other writ or order of any
court or officer.” Notwithstanding the emphatic language of the last
clause, the courts recognized many cases where the proceedings would
be stayed by injunction; and it was, when this Code was enacted,
an unsettled question whether the whole provision, so far as it forbids
an injunction, was not impliedly repealed by the Code of Procedure.
James v. Stuyvesant, 3 Sandf., 665, note; Capet v. Parker, id., 662 ;
Cure vy. Crawford, 5 How. Pr., 293; Wordsworth vy. Lyon, id., 463 ;
Marry v. James, 2 Daly, 437; 8. C., 37 How. Pr., 52; Bean v. Pet-
tengill, 7 Robt., 7; affirming, 2 Abb. N.8.,58; Forrester v. Wilson,
1 Duer, 624; Valloton v. Secgnett, 2 Abb. Pr., 121; Graham v. James,
% Robt., 468; Griffith v. Brown, 3 id., 628; 8. C., 28 How. Pr., 4;
49 N. Y., 227; and various other cases. The most satisfactory rule,
to be deduced from the cases, is that an injunction would lie, under
the former statute, in a case defined in subd. 2 of this section.]

[44] 345
§§ 3179-3180. NEW-YORK MARINE COURT. [cope crv. proc.

 

JyT oTTCR'S
MANUAL.

Id. ; pro-
ceedings
on arrest.

Id. ; bail or
deposit
before
return

CHAPTER XX.

(Exrracts.)

PROVISIONS RELATING TO CERTAIN COURTS IN
CITIES, AND THE PROCEEDINGS THEREIN.

TITLE L
The marine court of the city of New-York.

§ 8179. The sheriff, upon arresting the defendant, by virtue of
such an order, must, at the same time, serve upon him the summons,
and also a copy of the order of arrest, and of the papers upon which
it was granted. Ie must forthwith bring the defendant before the
court, at the chambers thereof, if the court is then in session at
chambers ; otherwise, unless bail is given, as prescribed in the next
section, he must take the defendant to the jail of the city and county
of New-York, for the confinement of prisoners in civil causes. The
keeper thereof must confine the defendant therein. On the next
day thereafter, when the court is in session at chambers, the sheriff
must take the defendant from the jail, and bring him before the
court. (*)

[Substituted for provisions of the R. L., of 1813, relating to“ ma-
rine causes.”’|

_§ 38180. The defendant may give bail, by delivering to the
sheriff a written undertaking to the plaintiff, inthe snm specified in
the order of arrest, executed by one or more sureties, to the effect
that the defendant will attend in person at the opening of the court,
at the chambers thereof, on the next day thereafter when it is there
in session ; or he may deposit with the sheriff the sum specified in
the order of arrest. In either case, the sheriff must forthwith re
lease him from custody. (*)

[The same.]
346

(a) Applied to the New-York District courts by § 3218, page 144.
CHAP. XX. ] NEW-YORK MARINE COURT. §§ 3181-3183.

§ 3181. Where bail is given, as prescribed in the last section, the
officer taking the acknowledgment of the undertaking, must, if the
sheriff so requires, examine under oath, to a reasonable extent, the
persons offering to become bail, concerning their property and their
circumstances. The defendant may give bail, or make the deposit,
immediately upon his arrest, at any hour of the day or night; and
he must have reasonable opportunity to seek for and to procure bail,
before being committed to jail. Where a deposit is made, the money
deposited must, before the expiration of the next day thereafter,
not being Sunday or a public holiday, be paid, by the sheriff, into
court, to the credit of the action, as prescribed in section 3164 of
this act. (°)

§ 3182. At any time after the return of the sheriff, and before
final judgment, a justice of the court may admit a defendant in cus-
tody to bail, or allow him to make a deposit; and may direct his re-
lease, upon his giving bail or making the deposit accordingly. The
sum to be deposited, or the sum specified in the undertaking of the
bail, must be fixed, and the sureties in the undertaking must be ap-
proved, by the justice ; who must be satisfied, by their examination,
or by other proof, respecting their sufficiency. The undertaking
must be to the effect that the defendant will, at all times, render
himself amenable to any mandate which may be issued, to enforce a
final judgment against him in the action. Article fourth of title
first of chapter seventh of this act, applies, where bail is given as
prescribed in this or the last section. (*)

§ 3183. Unless bail is given, or a deposit is made, as prescribed in
the last three sections, the defendant must remain in the jail by vir-
tue of the order of arrest, until final judgment in the action; and,
if the judgment is against the defendant, until the return of an exe-
cution against property, issued thereupon. But the court must
direct him to be brought into court, at the time of the trial; and it
may, in its discretion, direct him to be brought into court at any
other time. In either case, he must be taken from the jail, and
brought into court accordingly. (*)

347

(a) plied to the New-York District courts, except the last sentence of § 3182, by § 3218,
page 144.

 

. PART IL.
The same.

Id. ; Dail
or deposit
after
return.

Id.; when
and how
defendant
toremain
in custody.
$§ 3241-3242, COSTS. [CODE CIV. PROC.

JUSTICE’S
MANUAL,

CHAPTER XXI.

(ExrRacts.)
COSTS AND FEES.
TITLE [.—AwarDING AND ENFORCING PAYMENT OF COSTS.
TITLE IL—F.ixine THE AMOUNT OF COSTS.

TITLE IV.—GeNERAL PROVISIONS RELATING TO FEES.

TITLE I.
Awurdiny and enforcing payment of costs.

ARTICLE SECOND.

REGULATIONS RESPECTING THE AWARDING OF COSTS IN PARTICULAR CASES.

Costs § 8241. Where costs are awarded ayainst the people of the State,
against ‘ 7 ‘ é .
the State; in an action or a special proceeding brought, by a public officer, pur-

how paid.

suant to any provision of law, and the proceedings have not been
stayed, by appeal or otherwise ; the comptroller must draw his war
rant upon the treasurer, for the payment of the costs, out of any
money in the treasury, appropriated for that purpose, upon the pro-

duction to him of an exemplified copy of the judgment, or order

: awarding the costs, and, where the amount is not fixed thereby, of a
taxed bill of costs; accompanied, in either case, with a certificate of
the attorney-general, to the effect that the action or special proceed-
ing was brought pursuant to law. The fees of the clerk, for the
exemplified copy, must be certified thereupon by him, and included

in the warrant.

[2 R. 8. 553, Part 3, ch. 8, tit. 17, § 14 (3 R. S., 5th ed. 867; 2
Edm., 573), amended so as to correspond to § 1985, ante; and also by
adding the last sentence, and the clauses relating to a stay and to an
appropriation. See Const., art. 7, § 8.]

Costa § 3242. Where an action is brought, in the name of the people
where
action py of the State, upon the relation of a private corporation or indi-

348
CHAP. XXI.] COSTS. S§ 3243-3244.

PART II.

people, on
‘ is . lation of
ing costs to the defendant, must award them, against the relator, in private

person.

vidual, as prescribed in section 1986 of this act, a judgment, award-

the first instance ; and against the people, only in case an execution,
issued thereupon against the property of the relator, is returned un-
satisfied.

[Co. Proc., § 319, second sentence amended by expressly including
a private corporation, and by requiring the judgment to state in what
order the costs are to be collected. Probably this is the true construc-
tion of the original, although it is not clear. The first sentence of
the original section is sufficiently covered by § 1985, ante. ]

Id. ; for
the bene-
fit of a

of the people of the State, to recover money or property, or to es- county,

§ 3243. In an action or a special proceeding, brought in the name

tablish a right or claim, for the benefit of a county, city, town, or
village, costs shall not be awarded against the people; but, where
they.are awarded to the defendant, they must be awarded against the
body for whose benefit the action or special proceeding was brought.

[Id., § 320, amended by including a special proceeding, by requiring
the judgment or order to award the costs against the body chargeable
therewith, in conformity to the last section; and by omitting, after
‘‘village”, the words, ‘‘corporation or person”. Payment of costs,
where an action in the name of the people is brought upon the relation
of an individual, or a private corporation, or by a public officer, is
fully provided for in the last two sections. The original section does
not seem to have been construed in any adjudicated case, except
People v. Tremain, 17 How. Pr., 10; and, in that case, an appeal from
the determination of the special term was decided upon grounds, not

affecting the proper construction of the section. See 17 How. Pr.,
142.]

§ 3244. Costs cannot be awarded to the plaintiff, in an action Pee a

against a school officer, or a supervisor, on account of an act per- oiioer,
formed by him, by virtue of, or under color of his office; or on ac-
count of a refusal or an omission to perform a duty enjoined upon
him by law; where his act, refusal, or omission might have been the
subject of an appeal to the State superintendent of public instruc-
tion, and where it is certified that it appeared, upon the trial, that
the defendant acted in good faith. But this section does not apply
to an action for a penalty; or to an action or a special proceeding,
to enforce a decision of the superintendent.
[L. 1864, ch. 555, tit. 13, § 6 (6 Edm., 361).]
349
§§ 3245-3247, COSTS. [CoDE CIV. PROC.

JUSTICE’S wil Ae . .
MANuAL,  § 3245. Costs cannot be awarded to the plaintiff, in an action
Id.; : ape aon é ;

againsta against a municipal corporation, in which the complaint demands a

municipal

corpora- 7 % Jai .
corpora~ judgment for a sum of money only; unless the claim, upon which
the action is founded, was, before the commencement of the action,

presented for payment to the chief’ fiscal officer of the corporation.
[L. 1859, ch. 262, § 2 (4 Edm., 682). |

ld.;byor  § 3246. In an action, brought by or against an executor or admin-
against an

executor, istrator, in his representative capacity, or the trustee of an express
. trust, or a person expressly authorized by statute to sue or to be
sued, costs must be awarded, as in an action by or against a person,
prosecuting or defending in his own right, except as otherwise pre-
scribed in sections 1835 and 1836 of this act; but they are exclu-
sively chargeable upon, and collectible from the estate, fund, or per-
son represented, unless the court directs them to be paid, by the
party personally, for mismanagement or bad faith in the prosecution

or defence of the action.

[Co. Proc., § 31%, first sentence, and the substance of the first
clause, of the second sentence; the latter provision being covered by
the exception contained in this section. ]

Coste in § 3247. Where an action is brought, in the name of another, by a
ote, of transferee of the cause of action, or by any other person, who is
cause 0: . . .

action. beneficially interested therein ; or where, after the commencement

of an action, the cause of action becomes, by transfer or otherwise,
the property of a person, not a party to the action; the transferee,
or other person so interested, is liable for costs, in the like eases, and
to the same extent, as if he was the plaintiff; and, where costs are
awarded against the plaintiff, the court may, by order, direct the
person so liable to pay them. Except in a case, where he could not
have been lawfully directed to pay costs, personally, if he had
been a party, as prescribed in the last section, his disobedience to
the order is a contempt of court. But this section does not apply
to a case, where the person so beneficially interested, is the attorney
or counsel for the plaintiff, if his only beneficial interest consists of
a right to a portion of the sum or property recovered, as compensa-
tion for his services in the action.

[Co. Proc., §321, and 2 R. S., 619, Part 3, ch. 10, tit. 1, § 44 (2 R.
§., 5th ed., 909 ; 2 Edm., 643) ; consolidated. ]

350
CHAP. XXI. | COSTS.

TITLE II.

Fixiny the amount of costs.

ARTICLE FIRST.

SUMS ALLOWED AS Costs; DISBURSEMENTS.

§ 3258.* In either of the following cases, a defendant, in whose
favor a final judgment is rendered, in an action wherein the com-
plaint demands judgment for a sum of money only, or to recover a
chattel; or a final order is made, in a special proceeding instituted
by a State writ, is entitled to recover the costs, prescribed in section
8251 of this act, and, in addition thereto, one half thereof :

1. Where the defendant is or was a public officer, appointed or
elected under the authority of the State, or a person specially ap-
pointed, according to law, to perform the duties of such an officer ;
and the action or special proceeding was brought by reason of an
act,done by him by virtue of his office, or an alleged omission by
him, to do an act, which it was his official duty to perform.

2. Where the action was brought against the defendant, by reason
of an act done, by the command of such an officer or person, or in
his aid or assistance, touching the duties of the office or appoint-
ment.

3. Where the action was brought against the defendant, for tak-
ing a distress, making a sale, or doing any other act, by or under
color of authority of a statute of the State.

But this section does not apply, where an officer, or other person,
specified herein, unites in his answer with a person not entitled to
such additional costs. (*)

[2 R.8., 616, Part 3, ch. 10, tit.1, §24 (3 R.S8., 5thed., 908; 2Edm.,
640), remodelled, In the introductory clause, the words, “ upon verdict,
demurrer, etc.,” have been omitted, so as to allow the additional costs,
without reference to the manner in which the judgment is rendered;
one of the other amendments, made in this section, excludes an officer,
who unites in his defence with a private person not entitled to addi-
tional costs. In this respect, this section follows the weight of author-
ity, as derived from cases construing the original statute. See Bradly
v. Fay,18 How. Pr., 481, and cases cited. The original section was not
repealed by the Code of Procedure. Beatie v. Gilman, 18 N. Y., 260. ]

301

 

(a) Applied to justices’ courts by § 3079, page 96.

§ 3258,

PART II.

When de-
fendant
entitled to
increased
costs.
$§ 3259-3282, FEES. [CODE CIV. PROC.

JUSTICE’S

pe § 3259. The increase, specified in the last section, does not extend
nerease
disburse- 1 : i 1 i itled
ments not to the disbursements ; and an officer, witness, or juror, is not entitled
allowed,

to any other fee in the action, except the single fee allowed by law
for his services.

[Id., § 25, amended by including all disbursements in the provision. ]

TITLE IV.
General provisions relating to fees.
Taking § 3280. Each clerk of a court must perform all the duties required
fees not

prribea by Of him, in the course and practice of the court, without fee or re-

ibid ward, except as expressly prescribed by law. Lach public officer,
upon whom a duty is expressly imposed by law, must execute the
same without fee or reward, except where a fee or other compensa-
tion therefor is expressly allowed by law. An officer or other per-
son, to whom a fee or other compensation is allowed by law, for
any service, shall not charge or receive a greater fee or reward, for
that service, than is so allowed.

[The first sentence consists of L. 1840, ch. 386, § 6 (£ Edm., 688),
without material change; it renders unnecessary the re-enactment of
various provisions to the same effect, included in other statutes, ex. gr.,
Co. Proc., § 312. The second sentence is new in form; but the sub-
stance thereof is implied, in all the provisions of law regulating fees.
The third sentence has been taken from 2 R.8., 650, Part 3, ch. 10, tit. 4,
§5(3R.S8., 5th ed, 930; 2 Edm., 669), without material change]

Id. ; for § 8281. An officer, or other person, shall not demand or receive
services

notren- any fee or compensation, allowed to him by law for any service,

eo.” =~ unless the service was actually rendered by him; except that an
officer may demand in advance his fee, where he is, by law, expressly
directed or permitted to require payment thereof, before rendering
the service.

[Section 6 of the R. 8.]

Penalty § 8282. An officer or other person, who violates either of the
or extor-
Hon. provisions contained in the last two sections, is liable, in addition to

the punishment prescribed by law for the criminal offence, to an
352
CHAP, XXI.] FEES. §§ 3286-3291.

action in behalf of the person aggrieved, in which the plaintiff is
entitled to treble damages.

[So much of id., § 7, as relates to the remedy by civil action. The
remainder of the section belongs to the criminal laws. |

§ 3286. Where a public officer is required, by law, to keep an ac-
count of, or to pay over, the fees or other moneys, received by him
for official services, he must include therein all sums, received by
him, to which he was entitled, by reason of any act, performed by
him in his official capacity ; whether the act did or did not pertain
to his office, or to the business thereof.

[L. 1847, ch. 277, §11 (4 Edm., 555). |

§ 8288. A party to an action or a special proceeding is not enti-
tled to a fee, for attending as a witness therein, in his own behalf, or
in behalf of a party who pleads jointly, or is united in interest, with
him ; and an attorney or counsel, in an action ora special proceed-
ing, is not entitled to a fee, for attending as a witness therein, in be-
half of his client.

[The latter half of this section consists of 2 R. 8., 651, Part 2, ch.
10, tit. 4,§ 15 (3 R.S., 5th ed, 931; 2 Edm., 671), amended by the
addition of the last five words. The remainder of the section is new.
The amendments accord with the rulings in Walker v. Russell, 16
How. Pr., 91; Steere v. Miller, 30 id., 7; Hewlett v. Brown, 7 Abb.
me 8. C., 1 Bosw. 655, and Taggard v. Gardner, 2 Sandf. 8. C.R.,
669.

§ 3289. An officer is not entitled to a fee, for administering the
oath of office to a member of the legislature, to any military officer,
to an inspector of election, clerk of the poll, or any town officer ; or
to more than ten cents, for administering an official oath to any
other officer.

[Id., § 17, amended by inserting “clerk of the poll”, and changing
twelve and a half to ten

§ 8291. Where an officer or other person is required, in the course
of a duty imposed upon him by law, to take an oath, to acknowl-
edge an instrument, to cause an instrument to be filed or recorded,
or to transmit a paper to another officer, he is entitled, in addition
to the fees, or other compensation for theservice, prescribed by law,
to the fees necessarily paid by him, to the officer who administered

[45] 353

PART II.

General
provision
as to fees,
etc., to be
accounted
for.

Parties,
attorneys,
etc., when
not al-
lowed
fees.

No fee for
admin-
istering
certain
official
oaths.

Officer,
etc.. may
charge fee
paid for
oath, pos-
tage, etc.
§§ 3292-3295. FEES. [copz crv. PROC.

JUSTICE'S ‘
MANUAL, the oath, or took the acknowledgment, or filed or recorded the in-

strument ; and to the expense of transmitting the paper, including
postage, where the transmission is lawfully made through the post-
office.

[New ; supposed to require no explanation.]

Tay Bis § 8292. Each provision of this act, requiring a judge, clerk, or other

to pe paid, officer to transmit a paper to another officer, for the benefit of a

uired to * os eo
transmit’ party, is to be construed as requiring the transmission only at the
paper.

request of the person so to be benefited, and upon payment by him
of the fees allowed by Jaw for the paper transmitted, or any copy or
certificate connected therewith, and the expenses specified in the
last section.

[The same. See L. 1876, ch. 449, § 12.]

Comp- | § 3295. Where the fees or other charges of an officer are charge-
roller to

audit cer- able to the State, they must be audited by the comptroller, and paid

tain
harges. ‘ : é ;
enarees: on his warrant, except as otherwise specially prescribed by law.

[2R. S., 651, Part 3, ch. 10, tit. 4, §16 (3 R. S, 5th ed. 931; 2
Edm., 671), amended by substituting the exception for the words,
‘‘and which have been heretofore audited by the court of exchequer.’”’]

354
CHAP. XXII.] DEFINITIONS. §§ 3333-3337.

PART II.

 

CHAPTER XXII.

DEFINITIONS AND REGULATIONS CONCERNING THE
CONSTRUCTION, EFFECT, AND APPLICATION OF
THIS ACT.

TITLE 1.—GENERAL DEFINITIONS, AND RULES OF CONSTRUCTION.

TITLE II.—Provisions REGULATING THE EFFECT AND APPLICA-
TION OF THIS ACT.

TITLE I.

General definitions, and rules of construction.

§ 3333. The word “ action”, as used in the new Revision of the Definition
Statutes, when applied to judicial proceedings, signifies an ordinary ton”:
prosecution, in a court of justice, by a party against another party,
for the enforcement or protection of a right, the redress or preven-
tion of a wrong, or the punishment of a public offence.

[Substituted for Co. Proc., § 2.]

§ 8334. Every other prosecution by a party, for either of the Id;

“special
purposes specified in the last section, is a special proceeding. Haan
[Substituted for Co. Proc., § 3.]
§ 3335. Actions are of two kinds: Division
a Civil. into ofvil
and crimi-
2. Criminal. nal.

[Co. Proce., § 4.]

§ 3336. A criminal action is prosecuted by the people of the pDesnition

f crimi-
State, as a party, against a person charged with a public offence, for Bal ag-
the punishment thereof.
[Co. Proc., § 5. ]
§ 3337. Every other action is a civil action. Id, 5 * olvil
action".

[Co. Proc., § 6.]
355
§§ 3338-3343. DEFINITIONS. [copE cIv. PROC.

MANUAL’ § 3338. The party prosecuting a civil action is styled the plaintiff ;

Parties to :
a civil the adverse party is styled the defendant.
action,
[Co. Proc., § 70.]
ae § 3339. There is only one form of civil action. The distinction
fion.” between, actions at law and suits in equity, and the forms of those
actions and suits, have been abolished.
[Co. Proc., § 69.]
Rule of § 8341. Each provision of this act is to be construed as not affect-
construc-

tionasto 3; “4 oe ¥s ae
certain ing any special provision of the statutes, remaining unrepealed after
spevial we 3 3 is ;
provisions the former provision takes effect, which is applicable exclusively to
relating to

New-York an action against the mayor, aldermen, and commonalty of the city
city. 5 ? ’

of New-York, including the recovery, entry, and collection of a

judgment in such an action.
[L. 1876, ch. 449, § 10, and see L. 1865, ch. 646, 8§ 4 and 5; L.
1866, ch. 876, § 10; L. 186%, ch. 586, § 6; L. 1868, ch. 853, § 8; L.
55 LL.

1869, ch. 876, § 14; L. 1870, ch. 382, § 2, L. 1871, ch. 583, §
1872, ch. 514, § 1. |

Bilectllae § 3343. In construing this act, the following rules must be ob-
eflaltions served, except where a contrary intent is expressly declared in the
and rules oe :

ofcon- provision to be construed, or plainly apparent from the context
struction.

thereof :

1. The “ superior city courts” are, collectively, the court of com-
mon pleas for the city and county of New-York, the superior court
of the city of New-York, the superior court of Buffalo, and the city
court of Brooklyn,

2. The word, “mandate”, includes a writ, process, or other writ-
ten direction, issued pursuant to law, out of a court, or made
pursuant to law, by a court, or a judge, or a person acting as a
judicial officer, and commanding a court, board, or other body, or
an officer, or other person, named or otherwise designated therein,
to do, or to refrain from doing, an act therein specified.

3. The word, “judge”, includes a justice, surrogate, recorder,
justice of the peace, or other judicial officer, authorized or required
to act, or prohibited from acting, in or with respect to the matter or
thing, referred to in the provision wherein that word is used.

356
CHAP. XXII. | DEFINITIONS.

4. The word, “clerk”, signifies the clerk of the court, wherein
the action or special proceeding is brought, or wherein, or by whose
authority, the act is to be done, which is referred to in the pro-
vision in which it is used. If the action or special proceeding is
brought, or the act is to be done, in or by the authority of the su-
preme court, it signifies the clerk of the county wherein the action
or special proceeding is triable, or the act is to be done.

5. The word, “report”, when used in connection with a trial, or
other inquiry, or a judgment, means a referee’s report ; and the
word, “decision”, when used in the same connection, means the
decision of the court upon a hearing, or the trial of an issue, before
the court, without a jury.

6. The words, “real property”, are co-extensive with lands,
tenements, and hereditaments.

7. The words, ‘“‘personal property ”, include money, chattels,
things in action, and evidences of debt. The word, “chattel”, is
co-extensive with goods and chattels.

8. The word, “property”, includes real and personal prop-
erty.

9. A “personal injury ” includes libel, slander, criminal conver-
sation, seduction, and malicious prosecution ; also an assault, battery,
false imprisonment, or other actionable injury to the person either
of the plaintiff, or of another.

10. An “injury to property” is an actionable act, whereby the
estate of another is lessened, other than a personal injury, or the
breach of a contract.

11. The word, “affidavit”, includes a verified pleading in an ac-
tion, or a verified petition or answer in a special proceeding.

12. A warrant of attachment against property is said to be
s annulled”, when the action, in which it was granted, abates or is
discontinuéd or a final judgment, rendered therein in favor of the
plaintiff, is fully paid; ora final judgment is rendered therein in
favor of the defendant. But, in the case last specified, a stay of
proceedings suspends the effect of the annulment, and the reversal
or vacating of the judgment revives the warrant.

13. The term, “judgment creditor,’, signifies the person who is

entitled to collect, or otherwise enforce, in his own right, a judg-
357

§ 3343.

PART II.
§ 3343,

JUSTICE'S

MANUAL.

DEFINITIONS. [CODE CIV. PROC.

ment for a sum of money, or directing the payment of a sum of
money.

14. A “judgment creditor’s action” is an action brought as pre-
scribed in article first of title fourth of chapter sixteenth of this act,
or any other action, brought by a judgment creditor to aid the col-
lection of a judgment for a sum of money, or directing the payment
of a sum of money.

15. The words, “lunacy”, and “lunatic”, embrace every descrip-
tion of unsoundness of inind, except idiocy.

16. A “distinct parcel” of real property is a part of the property,
which is or may be set off by boundary lines, as distinguished from
an undivided share or interest therein.

17. The word, “territory”, when applied to a portion of the
United States, without the State, includes the District of Columbia.

18. A “domestic corporation” is a corporation created by or
under the laws of the State; or located in the State, and created by
or under the laws of the United States, or by or pursuant to the
laws, in force in the colony of New-York, before the 19th day of
April, in the year 1775. Every other corporation isa “foreign
corporation”.

19. The terms, “trial juror”, and “trial jury”, are respectively
equivalent to the terms, “petit juror”, and “petit jury”, as used in
the constitution and laws of the State. The word, “notify”, as
used, with respect to procuring the attendance of a juror, is equiva-
lent to the word, “summon ”, as used in the like connection, in the
same constitution and laws.

20. The word, “action”, refers to a civil action ; the word, “judg-
ment”, toa judgment in such an action; the term, “special pro-
ceeding” to a civil special proceeding ; the word, “ order”, to an
order made in such an action or special proceeding ; the words, ‘‘an
action of ejectment ”, to an action to recover the immediate posses-
sion of real property.

21. The term, “public holiday”, includes each of the following
days, to wit: the first day of January; the twenty-second day of
February ; the thirtieth day of May; the fourth day of July; the
twenty-fifth day of December ; unless either of those days falls upon
Sunday, and, in that case, the next day thereafter ; also each general

358
CHAP. xx1I.}] APPLICATION OF PROVISIONS. §§ 3344-3346,

election day; and each day, appointed by the President of the
United States or the Governor of the State, as a day of general
thanksgiving, general fasting and prayer, or other general religious
observance.

22. Each of the words, “now”, ‘‘heretofore”, and “ hereafter”,
refers to the time when the provision containing it takes effect.

23. Where an instrument, specified in this act, is described as, or
expressly required to be, written or printed, it may be partly writ-
ten and partly printed.

24. The word, “folio”, signifies one hundred words, counting as
a word each figure necessarily employed.

[L. 1876, ch. 449, § 2.]

TITLE II.
Provisions regulating the effect and application of this act.

§ 3344. This act constitutes a portion of the New Revision of the
Statutes. It may be styled, in any act of the legislature or proceed-
ing in a court of justice, or wherever it is otherwise referred to,
‘“‘The Code of Civil Procedure”.

[L. 1876, ch. 449, § 1.]

§ 3345. The rule of the common law, that a statute in derogation
of the common law is strictly construed, does not apply to this act.

[Co. Proc., § 467. ]

§ 3346. Where it is prescribed, in a provision of this act, that a
person doing or omitting to do any act is guilty of a particular
crime, or, generally, of a misdemeanor, he shall be punished there-
for in the manner and to the extent, prescribed by the statutes re-
maining unrepealed after the provision in question takes effect, for
the punishment of the crime so specified ; or for the punishment of
a misdemeanor, the punishment of which is not specially prescribed
in the statute defining it.

New.]
[ 359

PART II.

Short title
of this
act.

Rule of
strict con-
struction
not appli-
cable
thereto.

Punish-
ment of
crimes

and mis-
demeanors
created
thereby.
§ 3347.

JUSTICE'S

MANUAL.
Applica-
tion of
certain
portions
thereof,
regulated
and quali-
fled.

APPLICATION OF PROVISIONS. [cops crv. proc.

§ 3347. The application and effect of certain portions of this act
are declared and regulated as follows; except that, where a particu-
lar provision, included within a chapter or a portion of a chapter,
specified in a subdivision of this section, expressly designates the
courts, persons, or proceedings, affected thereby, that provision is
deemed excluded from the application and effect, prescribed in the
subdivision :

1. In chapter second, the prisoners referred to are civil prisoners
only, except that section 122, and article third of title second thereof,
apply to all prisoners, civil or criminal.

2. In chapter third, sections 303, 304, 305, and 306 apply to trial
jurors upon the trial of an indictment or other criminal cause; as
prescribed in subdivision seventh of this section, with respect to the
application of titles third and fourth of chapter tenth, and as speci-
fied in the next two sections.

3. In chapter fifth, sections 446, 449, 450, 454, 455, and 458 to
468, both inclusive, apply to an action commenced, in any court of
the State, on or after the first day of September, 1877.

4, The remainder of chapter fifth, and the whole of chapter sixth,
apply only to an action commenced, on or after the first day of Sep-
tember, 1877, in the supreme court, a superior city court, the marine
court of the city of New-York, or a county court.

5. Chapter seventh, excluding section 548, and articles first and
second of title fourth thereof, applies only to an action, in one of
the courts specified in subdivision fourth of this section, in which an
application for an order of arrest, an injunction order, or a warrant
of attachment against property, is made, on or after the first day of
September, 1877. Articles firstand second of title fourth of that
chapter apply only to proceedings taken, in one of those courts, on
or after that date.

6. Chapter eighth applies only to the proceedings taken on or
after the first day of September, 1877, in an action or special pro-
ceeding in one of the courts specified in subdivision fourth of this
section ; except that sections 721, 722, 724 to 727, both inclusive,
and 817 to 819, both inclusive, apply to all courts of record; sec-
tions 728, 729, 730, 749, 787, 788, 810 to 816, both inclusive, and
826, to proceedings, taken, on or after that day, in any court or

360
CHAP. xx11.] APPLICATION OF PROVISIONS.

before any officer or body ; and sections 723, 764, 765, ‘789, 790, and
825, to all courts.

7. In chapter tenth, titles first, second, and sixth, and article
second of title fifth, apply only to proceedings taken, on or after
the first day of September, 1877, in one of the courts specified in
subdivision fourth of this section. Titles third and fourth, and
article first of title fifth, of that chapter apply only to jurors drawn
for, and juries formed at, a term of a court, commencing not less
than twenty days after the first day of May, 1877. Subject to that
qualification, they apply to jurors selected under the statutes,
remaining unrepealed after that day, and the lists and ballots pre-
pared accordingly ; until new jurors are selected, and new lists and
ballots are prepared, as prescribed in those titles. The same por-
tions of chapter tenth, excluding article third of title third, apply
equally to a criminal and a civil action or special proceeding, and to
a court of criminal and a court of civil jurisdiction. But title third
does not affect any special provision of law, remaining unrepealed
after the first day of May, 1877, whereby trial jurors are directed
to be procured, for a particular court of record, from a particular
locality ; or whereby a county is divided into two or more jury dis-
tricts, and the selecting, drawing, summoning, or attendance of

jurors from the particular locality, or the different jury districts, is
regulated. Each of those provisions becomes applicable to and

affects the selecting, drawing, notifying, or attendance of jurors, as
prescribed in that title, in like manner as it applied to and affected

the statutes previously in force, upon the same subject. So much *

of the provisions of title fourth, as relates to the remission or en-
forcement of a fine imposed upon a trial juror, applies to a fine im-
posed upon a grand juror, as prescribed in the statutes remaining
unrepealed, after the first day of May, 1877.

8. In chapter eleventh, articles first and second of title first, and
the whole of title third, apply only to proceedings in one of the
courts specified in subdivision fourth of this section, taken on or
after the first day of September, 1877. But where an action has
been commenced in either of those courts, before that date, a judg-
ment by default must be taken therein, as prescribed by the statutes
in force on the thirty-first day of August, 1877.

[46] 361

§ 3347.

PART II.
§ 3347. APPLICATION OF PROVISIONS. [cops crv. proc.

JUSTICE’S
MANUAL. 9. Chapter twelfth does not affect the statutes remaining unre-

pealed after the first day of September, 1877, touching the review
of proceedings in a criminal cause.

10. Chapter thirteenth applies only to an execution issued, on or
after the first day of September, 1877, out of a court of record,
other than an execution issued out of such a court, and directed, pur-
suant to law, to a constable or marshal; and to sales and other pro-
ceedings, by virtue of an execution directed to a sheriff, and deliv-
ered to him, after that date. Sections 1413 and 1414, and sections
1417 to 1427, both inclusive, apply only to a case where such an
execution is issued out of one of the courts specified in subdivision
fourth of this section; or where a warrant of attachment against
property is granted on or after that date, in an action brought in one
of those courts. Title third of that chapter applies only to an exe-
cution, issued upon a judgment rendered in one of those courts.

11. So much of chapters fourteenth, fifteenth, sixteenth, seven-
teenth, eighteenth, nineteenth, and twentieth, as regulates the pro-
ceedings to be taken in an action or special proceeding, and the
effect thereof, applies only to an action or a special proceeding com-
menced on or after the first day of September, 1880, except that sec-
tions 1670 to 1685, both inclusive, apply also to the proceedings
therein specified taken after that date in an action theretofore com-
menced, or upon a judgment theretofore rendered, and section 1674
applies to a notice of pendency of action theretofore or thereafter
filed ; sections 1880 to 1892, both inclusive, do not apply to an ac-
tion upon any bond therein specified, where an order, allowing any
person to prosecute the bond in the name of the people, has been
duly made before that date and is then in force, in which case future
actions upon the same bond are regulated by the laws in force on
the day before that date, notwithstanding the repeal thereof; sec-
tions 2181 to 2187, both inclusive, 2197 to 2199, both inclusive, and
2213 to 2218, both inclusive, apply also to a case where a discharge
is thereafter granted, and sections 2228 to 2230, both inclusive, ap-
ply also to trustees theretofore or thereafter appointed in proceed-
ings taken under any statute superseded by the title containing
those sections ; sections 2253 to 2265, both inclusive, apply also

where a final determination has been made before the first day of
362
CHAP. xx1I.] APPLICATION OF PROVISIONS. 8§ 3348-3349.

September, 1880, in proceedings taken under any statute superseded oe

by the title containing those sections, and to the process issued
thereupon; sections 2320 to 2344, both inclusive, apply also to pro-
ceedings taken before that date under any statute superseded by the
title containing them, whether a committee has or has not been ap-
pointed; section 2537 applies also to every payment or deposit
therein specified made on or after the first day of September, 1880;
and sections 2798 to 2801, both inclusive, apply also to a case where
a decree for the sale or other disposition of the real property of a
decedent has been duly made before that date in a swrrogate’s
court.

12. So much of chapters nineteenth and twentieth, as relates to
the jurisdiction of the several courts therein specified, applies only
to an action or special proceeding commenced on or after the first
day of September, 1880.

13. In chapter twenty-first, titles first, second, and third apply
only to an action in one of the courts specified in subdivision fourth
of this section.

[Substituted for L. 1876, ch. 449, § 5.]

§ 8348. Where a provision of this act is made applicable by the an

last section, to an action or a special proceeding commenced on or fhence-

after a day therein specified, if, before that date, a summons in an action,
action, or a citation issued from a surrogate’s court, has been served
upon one or more, but not upon all, of the persons to be served; or
an order for the service of a summons as prescribed in article sec-
ond of title first of chapter fifth of this act has been made; or, ina
special proceeding, elsewhere than in a surrogate’s court, the petition
or other paper, upon which the first order, process, or other man-
date may be made or issued, has not been presented, the action or
special proceeding is not deemed to have been commenced within
the meaning of that section.
[ New. ]
§ 3349. Where any provision of this act is made applicable to fu- 14. j when

roceed. =
ture proceedings in an action or special proceeding, the proceedings ! Ings robe

i
therein, until the provision in question becomes applicable, are gov- former

erned by, and must be conducted according to the laws in force on
363
$§ 3352-3355. APPLICATION OF PROVISIONS. [copz crv. proc.

JUSTICE’S

MANUAL,

Effect of
this act
upon
proceed-
ings taken,
or rights
accrued,
etc.,
under for-
mer
statutes.

Id. ; upon
officers

offices.

When this
act

deemed to
have been

the day before the provision takes ‘effect, except as otherwise pre-
scribed in subdivision seventh of the last section but one.
[New.]

§ 3352. Nothing contained in any provision of this act, other than
in chapter fourth, renders ineffectual, or otherwise impairs, any pro-
ceeding in an action or a special proceeding, had or taken, pursuant
to law, or any other lawful act done, or right, defence, or limitation,
lawfully accrued or established, before the provision in question takes
effect ; unless the contrary is expressly declared in the provision in
question. As far as it may be necessary, for the purpose of avoid-
ing such a result, or carrying into effect such a proceeding or other
act, or enforcing or protecting such a right, defence, or limitation,
the statutes in force on the day before the provision takes effect, are
deemed to remain in force, notwithstanding the repeal thereof.

[New.]

§ 3354. This act does not create a vacancy in any office or em-
ployment, designated or referred to therein, by the title or descrip-
tion thereof, contained in the statutes in force on the day before the
provision referring thereto takes effect, or by another title or
description ; nor does it affect any provision of those statutes, relating
to the amount, or the time or the mode of payment, of the compen-
sation of an officer or employee, so designated or referred to, who is
in office or employed on that day: except that where the tenure of
his office or employment is not prescribed in this act, he may be re-
moved at pleasure by the court, officer, or officers, authorized by this
act to appoint a person to discharge the same duties. Until he is
removed, or his office or place becomes otherwise vacant, the pro-
visions of this act apply to him, and to the discharge of his duties.
The court, officer, or officers, authorized by this act to appoint a per-
son to an office or employment, may from time to time fill a vacancy
therein.

[L. 1876, ch. 449, § 14.]

§ 3355. For the purpose of determining the effect of the different
provisions of this act with respect to each other, they are deemed to
364
CHAP. xx11.] APPLICATION OF PROVISIONS. § 3356.

have been enacted simultaneously. For the purpose of determining eae

the effect of this act upon other acts, and the effect of other acts”
upon this act, this entire act is deemed to have been enacted on the
sixth day of January, in the year eighteen hundred and eighty ; and

all acts passed after the last mentioned date are to have the same
effect as if they were passed after this act.

§ 3356. Subject to the qualifications contained in the foregoing When this
sections of this title, this act shall take effect as follows: titles third °°
and fourth, and article first of title fifth of chapter tenth, on the
first day of May, in the year 1877; the remainder of chapters first
to thirteenth, both inclusive, on the first day of September, in the
year 1877 ; chapters fourteenth to twenty-first, both inclusive, on the

first day of September, 1880 ; and this chapter immediately.
365
PART ITIL.

CONSTITUTIONAL PROVISIONS, AND STATUTES
REMAINING UNREPEALED, RELATING
TO JUSTICES OF THE PEACE IN
THEIR CIVIL CAPACITY.

PROVISIONS RELATING TO THE ExEction, ResiwENCcE, QUALIFICATION,

anp OrFiciaL OatH anp Bonp or Justices or THE Prac, AnD

Resie@nation oF, RemovaL FROM, AND VACANCIES IN THEIR OFFICE.

§13. * * * But no person shall hold the office of justice or Restric- |
judge of any court longer than until and including the last day of ee.
December next after he shall be seventy years of age.

§ 18. The electors of the several towns shall, at their annual town gustices of
meeting, and in such manner as the legislature may direct, elect jus- pare
tices of the peace, whose term of office shall be four years. In case
of an election to fill a vacancy occurring before the expiration of a
full term, they shall hold for the residue of the unexpired term.

Their number and classification may be regulated by law. Justices
of the peace and judges or justices of inferior courts not of record,
and their clerks may be removed after due notice and an opportunity
of being heard, by such courts as may be prescribed by law, for
causes to be assigned in the order of removal. Justices of the peace
and district court justices shall be elected in the different cities of
this State, in such manner, and with such powers, and for such terms,
respectively, as shall be prescribed by law; all other judicial officers
in cities whose election or appointment is not otherwise provided
367
JUSTICE’S
MANUAL.

No judi-
cial officer,
except jus-
tice of the
peace, to
receive
fees.

Classifica-
tion of the
civil
officers.

Justices,

Justices in
towns.

Justices
in new
towns.

Id.

OFFICIAL TENURE. [STATUTES

for in this article, shall be chosen by the electors of cities, or ap-
pointed by some local authorities thereof.

§ 21. No judicial officer, except justices of the peace, shall re-
ceive to his own use any fees or perquisites of office; * * *

[From article vi of the constitution of the State.]

Election.

Sxction 1. There shall be elected or appointed, in the manner
hereinafter declared or prescribed, the following civil officers, who
shall be arranged in classes to be denominated legislative, executive,
judicial and administrative; but this classification shall not be con-
strued as defining the legal powers of the officers, that shall be
assigned to either class:

* * * * * * *
3. In the class of judicial officers.
% * * * * * *

Four justices of the peace for each town in the State.

[1 R.8.,95,§1(1 Edm., 86, 88). Special statutes change the number in cer-
tain towns and cities, See L. 1848, ch. 155; L. 1851, ch. 40; L. 185%, chs. 7 and
16; L. 1858, ch. 3; L. 1854, chs. 44, 20, 31 and 94; L. 1856, ch. 12; L. 1857, ch.
180 and 665; and the charters of cities.]

§ 85. There shall be four justices of the peace in each town,
divided into four classes, one of whom shall be annually elected in
the manner prescribed in chapter sixth of thisact. Each justice
hereafter chosen, shall hold his office for four years, except when
elected to fill a vacancy, or on the erection of a new town as herein-
after prescribed ; and may be removed by the judges of the county
courts.

[6 Cow., 645, The statute on p. 379, post, supersedes the last clause. ]

§ 37. Whenever a new town shall be erected, an election for
justices therein shall be held at the next general election thereafter,
unless a special election shall be directed by law.

§ 38. If there be one or more justices then residing in such new
town, they shall be deemed justices thereof, and shall hold their
offices according to their respective classes; and only so many

368
UNREPEALED. | OFFICIAL TENURE.

justices shall be chosen as shall be necessary to complete the num-
ber of four for such town.
[21 Wend., 563.]

§ 39. After the election of justices in such new town, the super-
visor thereof shall, within six days after the completion of the can-
vass by the county canvassers, give notice in writing, to the justices
elected and to the town clerk, of the time and place where he will
meet them, to determine by lot the classes of such justices; which
notices shall be served at least six days, and not more than twelve,
previous to the time appointed therein for such meeting.

§ 40. At the time and place so appointed, the supervisor and town
clerk shall cause to be written on separate pieces of paper, as near
alike as may be, the numbers one, two, three, four, if there shall
have been four justices elected, and shail cause them to be rolled up
as nearly alike as may be, and deposited in a box. The persons
elected justices shall severally draw one of the said pieces of paper,
and shall be classed according to the number written on the paper
so drawn by him, and shall hold his oftice for such number of years,
either one, two, three, or four, as shall correspond with such num-
ber so drawn. .

§ 41. If less than four justices shall have been chosen, then bal-
lots shall be prepared as above directed, with numbers written
thereon, to correspond with the numbers of the classes which shall
be vacant, and each person elected, shall, in like manner, proceed to
draw one of the said ballots, and shall be classed according to the
number so written on the ballot drawn by him, and shall hold his
office according to such number.

§ 42. If any person elected a justice shall neglect to attend to
such drawing, the supervisor shall draw for him. If the supervisor
be absent from his town, or unable to serve, or his office be vacant,
the town clerk shall give the notice herein required, and perform
the duties enjoined on such supervisor.

§ 43. Duplicate certificates of such drawing, and of the result
thereof, shall be made, and certified by the supervisor and town
clerk, or such one of them as shall attend the same, one of which
shall be filed with the town clerk and the other with the county

[47] 369

PART II.

Id. ; notice
of meeting
to deter-
mine
classes.

Id;

classes,
how deter-
mined.

1d; neg-
lect to at-
tend, etc.

Certifi-
cates of
drawing.
MANUAL OFFICIAL TENURE. [STATUTES

clerk, and shall be recorded by the said clerks in the books in which
the canvasses of votes shall have been recorded: and shall be con-
clusive evidence of the respective classes, to which the persons so
elected justices, belong.

When § 44. If by the erection of a new town or the annexing of a part

more than

ple of one town to another, there should at any time be more than four

ppm justices residing in any town, they shall, notwithstanding, hold and

exercise their offices in the town in which they reside, according to
their classes respectively. But on the expiration of the term of
office of two or more justices, being in the same class, ‘only one per-
son shall be elected to fill the vacancy in such class.

Proceed-  § 45. Whenever, by the erection of a new town or the annexing

ings, when z
number of part of one town to another, any town shall be deprived of one

eae! or more justices, by their residence being within the part set off,
the inhabitants of such town shall, at the next general election,
supply the vacancy so produced in the classes to which such justices
may belong: and if two or more justices be elected, the same
proceedings shall be had, as before directed, to determine their
respective classes.

Proceed-  § 46. Whenever there shall be two or more justices chosen at any

ings, when

elected for 1 2
DReiwal election, one or more of whom shall be chosen to supply a vacancy,

terms. and one for the regular term, the class to which each justice shall

belong, and the term for which he shall serve, shall be determined
by lot, in the presence of the supervisor and town clerk, within the
time and in the manner hereinbefore directed; the same notice
shall be given, the same proceedings had, and the result certified
with the like effect as before declared.

sont preceding sections 35-46 are 1 R. 6, 111, 112, §§ 35-46 (1 Edm., 101-

370
UNREPEALED. | OFFICIAL TENURE. PART III.

Cuap. 356.

AN ACT concerning the election of justices of the peace.
PassED May 4, 1829.

The People of the State of New York, represented in Senate and
Assembly, do enact as follows :

Sxzction 1. Justices of the peace shall hereafter be elected by the When to |
people of the several towns of this State, at the times and in the manner
prescribed by the eleventh chapter of the First Part of the Revised
Statutes, for the election of supervisor and other town officers re-
quired to be elected by ballot.

§ 2. The clerk of every town meeting, at which an election for Ruy of
justice of the peace shall have been had, shall, within ten days ne
thereafter, transmit to the clerk of his county, a certificate of the
result of such election, under his hand, which shall be evidence of
the facts therein certified.

§ 8. The persons so elected justices of the peace shall enter upon Justices

when to

the duties of their respective offices on the first day of January next enter on

. : : : : : duties,
succeeding their election; and in case more than one justice shall be

elected in any town at the same election, their term of office shall
be determined by lot, in the manner provided by law, before the
commencement of such term.

[L. 1829, ch. 356 (8 Edm., 39); 17 N. Y. 373; 25 Barb., 422. Section1 refers to
1R. 8., 343 (1 Edm., 316).]

Cuap. 290.

AN ACT to amend an act entitled “An act concerning
the election of justices of the peace,” passed May 4th,

1829,
PassED April 20, 1830.

The People of the State of New York, represented in Senate and
Assembly, do enact as follows:

Sxcrion 1. Whenever one or more justices of the peace shall be Justices
electe 0

elected in any town in this State, to supply a vacancy or vacancies at SUPPIY,
371
JUSTION'S OFFICIAL TENURE. [STATUTES

the time existing, or in any new town, such justice or justices may
take the oath of office, and forthwith enter upon the duties thereof.

When an $2: In case more than one justice of the peace shall be elected in

ore isa. any town at the same election, their terms of office shall be deter-

mined by lot, within twelve days after their election, in the manner
now provided by law.
[L. 1830, ch. 290 (8 Edm., 40); 17 N. Y., 878; 25 B., 424.]

Cuap. 270.

AN ACT relative to the election and classification of jus-
tices of the peace.

PassED April 29, 1833.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Classificas Section 1. When two or more persons shall be elected to the office

a of justice of the peace at any annual town-meeting, the one of whom
shall be an incumbent of the office for a term not then expired, such
incumbent shall be deemed elected for the regular term of four years,
which will commence on the first day of January next following
such election.

Ballots & 2. When at any such town-meeting, except the first election in

written. a new town, two'or more persons are to be elected to the office of
justice of the peace, it shall be lawful for each of the electors not
voting for a person who may then be an incumbent of the office, to
designate on his ballot the person intended for the regular term of
four years, which will commence on the first day of January then
next following, by the words, or words and figures, ‘““Longest term,”
“four years,” or “4 years;” and the persons having the greatest
number of votes, without any reference to such designation, shall be

deemed duly elected.

Who § 3. The person elected and having the greatest number of such

elected for designations, shall be deemed elected for the regular.term of four
years.

Duty of § 4. The presiding officer or officersat any annual town-meeting

372
UNREPEALED.| OFFICIAL TENURE.

at which justices of the peace shall be elected, shall determine Pre

whether any, and what person, in pursuance of the foregoing sec-
tions, has been elected for the regular term of four years; which
determination shall be made at the same time and with the like
force and effect, as he or they may determine what persons are
elected to the office of justice of the peace ; and such determination
shall be entered in the minutes of the proceedings of the meeting,
and shall be publicly read, and shall be deemed notice of the result,
in the same manner as is now provided by law in relation to the
canvass.

§ 5. Where no person shall be elected for the regular term of
four years in pursuance of either of the preceding sections, the
classes of all the persons elected to the office of justice of the peace,
at any such annual town-meeting, shall be determined by lot within
the time and in the manner now prescribed by law.

§ 6. Where one person shall have been elected’ for the regular
term, in pursuance of the foregoing provisions, the other person or
persons elected justices of the peace shall be deemed elected to fill
the existing vacancy or vacancies; and in case of more than one
existing vacancy, the classes of the persons elected to fill the same
shall be determined by lot, within the time and in the manner now
prescribed by law.

§ 7. Whenever there shall have been two or more justices chosen
at, any annual town-meeting during the present year, one or more
of whom shall be chosen to supply a vacancy, and one for the regu-
lar term, and the class to which such justice shall belong shall not
have been determined by lot in the manner and within the time now
prescribed by law, it shall be lawful for the supervisor or town
clerk, as the case may be, at any time on or before the first day of
July next, to give the required notice, and to proceed to such de-
termination in the same manner as if the same had been done within
the time now prescribed by law.

§ 8. This act shall take effect immediately on the passing thereof ;
and it shall be the duty of the secretary of State to cause the same
to be published without delay in the State paper, and in such other
manner as he shall deem expedient.

[L. 1833, ch. 270 (8 Edm., 40).]
373

PART II.

presiding
officers

Determin-
ation by
lot.

Vacancies,

Duty of
supervisor
and town
clerk.
JUSTICE'S
MANUAL,

Justices.

General
disabili-
ties.

District
attorney
not to act
as justice.

Oath of

office.

When to
be taken.

Before
whom.

OATH AND BOND. [STATUTES

Residence.
§ 12. Justices of the peace must reside in the town for which they
were chosen ; and shall not try a civil cause in any other town ex-

cept in cases otherwise provided for by law.
[1 R. 8., 102, § 12 (1 Edm., 92); 9 Wend., 322; 21 Wend., 563.]

Qualification.
§ 1. No person shall be capable of holding a civil office, who, at
the time of his election or appointment, shall not have attained the
age of twenty-one years, and who shall not then be a citizen of this

state.

[1 R. S., 116, §1 (1 Edm., 106); 3 W., 438. A town officer must also be an
elector of the town. 1R.8., 345, § 11 (1 Edm., 318).]

§ 5. No district-attorney shall act as a justice of the peace.
[L. 1852, ch. 304,85 (3 Edm., 336); 23 Wend., 502; 3 Wend., 438.]

Official oaths and bonds.

§ 20. Every person who shall be elected or appointed to any civil
office or public trust embraced in this chapter, before he shall enter
on the duties of such office or trust, shall take the following oath or
affirmation: “I do solemnly swear,” or “affirm,” as the case may
be, “that I will support the constitution of the United States, and
the constitution of the State of New-York, and that I will faithfully
discharge the duties of the office of according to the best
of my ability.”

§ 21. Whenever a different time shall not be prescribed by law,
such oath of office shall be taken and subscribed, and deposited
in the proper office, within fifteen days after the officer shall be noti-
fied of his election or appointment, or within fifteen days after the
commencement of his term of office.

§ 23. The oath of justices of the peace and commissioners of
deeds shall be taken before the clerk of the county for which they
have been elected or appointed.

[2 B., 824.]

374
UNREPEALED.| OATH AND BOND.

§ 24, Every such oath, duly certified by the officer before whom
the same was taken, shall be deposited within the time required by
law, as follows:

6. The oath of all judicial, executive and administrative officers
appointed or elected for any county or city, and of all officers whose

” PARTIIT,

With
whom de-
posited.

duties are local, or whose residence in any particular district or’

county is prescribed by law, in the office of the clerk of the county
in which they reside.

§ 26. Whenever any officer is required by law to execute any
official bond, he shall cause the same to be filed in the proper office,
within the time herein prescribed for filing his oath of office, unless
otherwise provided by law.

§ 27. In case any officer who is required to file the certificate of
his oath of office, or his official bond, with the secretary of State or
with any county elerk, shall neglect to do so within the time required
by law, it shall be the duty of such secretary or clerk immediately
to give notice of such neglect to the governor. And when any
justice of the peace shall neglect to file the certificate of his oath of
office, the county clerk shall also give notice of such neglect, to the
supervisor of the town for which such justice was elected.

§ 29. Every bond executed by any officer pursuant to law for the
faithful discharge of the duties of his office, shall be deemed to be
in force and obligatory upon the principal and sureties therein, so
long as such officer shall continue to discharge the duties of his
office, and until his successor shall be appointed and duly qualified.

§ 30. But the sureties in any such bond shall be exonerated from
all liability by reason thereof, for all acts or omissions, of their
principal, after he shall have duly renewed any official bond, pursu-
ant to law.

§ 31. If any person shall execute any of the duties or functions of
any office, without having taken and subscribed the oath of office
required by law, or without having executed and filed in the proper
office any bond required by law, he shall forfeit the office to which
he may have been elected or appointed, and shall be deemed guilty of a
misdemeanor punishable by fine or imprisonment.

[The preceding sections 20-31 are 1 R. S., 119-121, §§ 20-31 (1 Edm., 109-111).
See 1 R. L., 385, § 11; 2B., 824; 57 N. Y., 401.]

375

Official
bond.

Notice of
neglect.

Effect of
bond.

Id.

Penalty
for acting
without
oath or
bond.
MANUAL OATH AND BOND. [STATUTES

Cuap. 109.
AN ACT relative to the oath of justices of the peace.

PassEep April 11, 1832.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Qath when = Sxcrton 1. The oath of office of justices of the peace shall be taken
taken before the clerk of the county for which they may have been elected
or appointed, at any time after election or appointment, and before
the fifteenth day of January next succeeding.

re § 2. It is hereby made the duty of the clerks of counties to make

attorney. a report to the district-attorney of their respective counties of all
omissions, by any town officers, to make and transmit any returns or
certificates which by law they are required to make to such clerk,
and the said district-attorney shall forthwith proceed to enforce the
penalty by law imposed upon such delinquent officer.

[L. 1882, ch. 109 (8 Edm., 298).]

Cuap. 107.

AN ACT requiring justices of the peace to give bonds.
Passep April 4, 1878 ; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

ee Srorion 1. Every justice of the peace elected or appointed in any

bonds. of the towns or cities of this State shall, before he enters upon the

duties of his office, execute an instrument in writing with two sure-
ties, to be approved by the supervisor of the town, (or the town
clerk thereof where the said justice of the peace is also the super-
visor of said town), or the common council of the city in which
such justice shall reside, conditioned that he will pay over on demand
to the officer, person or persons entitled to the same, all moneys re-
ceived by him in virtue of his office, and previous to entering upon
376
UNREPEALED. | OATH AND BOND. PART IL,

the discharge of his official duties, shall file the said instrument in
the office of the clerk of the city or town in which he shall reside.

§ 2. Every such justice now in office, shall, within sixty days Justices
after written notice by the county clerk, of the passage of this act, °™°*
execute and file the bond or instrument required in the first section
hereof.

§ 8. This act shall not apply to the city and county of New-York, Incities.
or to those cities whose charters require these officers to give such
bonds.

§ 4. Within twenty days after the passage of this act, the secre- Distribu-
tary of State shall send printed copies of this act to each county 4+
clerk in this State who within twenty days from the receipt of such
notice, shall make the service required in section two hereof.

§ 5. This act shall take effect immediately.

[L. 1878, ch. 107, as amended by L. 1878, ch. 367. A justice was required to
give a bond by L. 1845, ch, 180, § 34, (8 Edm., 309), but that act was repealed by

L. 1846, ch. 144,§4. A failure to file a bondis a ground of forfeiture of office
only ; 57, N. Y.. 401-2 ; and see § 381, page 375, ante. ]}

Cuap. 201.

AN ACT authorizing justices of the peace to execute and
file official bonds,

Passep April 19, 1879.

The People of the State of New- York, represented in Senate and
Assembly, do enact as follows :

Sxction 1. Every justice of the peace in this State who is required petese of
ace}

to execute and file a bond by chapter one hundred and seven of the bond of.

laws of eighteen hundred and seventy-eight, shall upon executing
and filing a bond as required by the said act, within sixty days after
the passage of this act, be entitled to hold his said office, and dis-
charge the duties thereof during the remainder of the term for
which he was elected or appointed, and all of his official acts are
hereby declared to be as valid and of the same effect as though he
had executed and filed said bond within the time stated in said act ;
provided that nothing in this act shall affect any suit now pending.
§ 2. This act shall take effect immediately.
[47] 377
MANUALS OATH AND BOND. [STATUTES

Cuap. 360.

AN ACT to legalize the official acts of certain auetiees of
the peace.
PasszeD May 26, 1879.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows ;

Justicesof Sxction 1. The official acts of every justice of the peace hereto-
eace 5

legalizing | fore done and performed, duly elected or appointed to the office, so

ae far as such official acts may be affected, impaired or questioned by

reason of the failure of any such justice to give an official bond as
required by law, are hereby legalized and confirmed.

Pending § 2. Nothing herein contained shall affect any suit or proceeding
now pending.

§ 3. This act shall take effect immediately

Cuap, 221.

AN ACT to legalize the official acts of certain justices of
the peace, and authorizing justices of the peace to execute
and file official bonds.

PassED May 8, 1880; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows:

Sxction 1. The official acts of every justice of the peace hereto-
Id. fore done and performed, duly elected or appointed to the office, so

far as such official acts may be affected, impaired or questioned by
reason of the failure of any such justice to give an ofticial bond as
required by law, are hereby legalized, ratified and confirmed.

§ 2. Nothing herein contained shall affect any suit or proceeding
now pending.

§ 3. This act shall take effect immediately.

378
UNREPEALED.] RESIGNATION AND REMOVAL.

Cuap, 341,

AN ACT to legalize the official acts of certain justices of
the peace.

PassED May 20, 1880.

The people of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Sxcrion 1. The official acts of every justice of the peace hereto-
fore done and performed, duly elected or appointed to the office,
so far as such official acts may be affected, impaired or questioned,
by reason of the failure of any such justice to take and subscribe
to the official oath as required by law are hereby legalized and con-
firmed.

§ 2. Nothing herein contained shall affect any suit or proceeding
now pending.

§ 3. This act shall take effect immediately.

Lesignation and removal from office.

§ 33. Resignations shall be made as follows:

# * * * * * * * * * * *
5. By justices of the peace, to the supervisor of the town.
[1 R. 8., 121, § 38 (1 Edm., 111).]

§ 386. No justice of the peace can be removed until he shall have
notice of the charges made against him, nor until an opportunity be
given him of being heard in his defence. The causes of such remo-
val shall be assigned by the judges in writing, and be filed with the
clerk of the court.

[i B.S., 111, § 86 (1 Edm., 101).]

§ 25. Justices of the peace and judges, and justices of inferior
courts, not of record, and their clerks, may be removed, as provided
by the constitution, by the supreme court at any general term
thereof, and such general term shall have power to order the proofs
upon any proceedings hereunder to be taken before a referee to be
appointed by such general term, and to certify the reasonable ex-

penses of such referee, which amount, so certified, and also the
379

PART I

Resigna-
tion ;to

whom to
be made.

Removal
from
office.

Supreme
court ata
general
term may
remove
justices,
etc.
MANUAL VACANCIES. [STATUTES

reasonable expenses of any reference as heretofore or hereafter
taxed by any general term of said court, under proceedings hereto-
fore taken under the act hereby amended, and remaining unpaid, is
hereby declared to be a charge against the city, town or village
within which such justice of the peace, judge, or justice of inferior
court, not of record, or clerk, exercises the duties of his office.
Such general term may also in its discretion require the person or
persons instituting proceedings for the removal of either of the
officials above named to give security, to be approved by such gen-
eral term, for the expenses incident to the hearing and determination
thereof, in case thecharges against such official are not sustained.

§ 2. This act shall take effect immediately.

[L. 1847, ch. 280, § 25 (4 Edm., 563), as amended by L. 1880, ch. 354.]

Vacancies.
offices ‘1 § 34. Every office shall become vacant on the happening of either
vacant. of the following events before the expiration of the term of such

office.

1. The death of the incumbent.

2. His resignation.

3. His removal from office.

4, His ceasing to be an inhabitant of the State, or if the office be
local, of the district, county, town or city for which he shall have
been chosen or appointed, or within ‘which the duties of his office
are required to be discharged.

5. His conviction of an infamous crime, or of any offence involv.
ing a violation of his oath of office.

6. His refusal or neglect to take the oath of office within the time
required by law, or to give or renew any bond, within the time pre-
scribed by law.

7. The decision of a competent tribunal, declaring void his elec-
tion or appointment.

[1 R. S., 122, § 34 (1 Edm., 112).]

Notice of § 35. Whenever any officer shall be convicted of an infamous
convic-

tion. crime, or of an offence involving a violation of his oath of office,

and whenever any election or appointment of any person shall be de-
380
UNREPEALED. | VACANCIES.

clared void, the court before which such conviction shall be had, or
by which such decision shall be made, shall immediately give notice
thereof, to the governor, stating the cause of such conviction or de-
cision.

[Id., § 85.]

§ 40. The governor may also declare vacant, the office of every
officer required by law to execute an official bond, whenever a judg-
ment shall be obtained against such officer for a breach of the condi-
tion of such bond.

[Ia., § 40]

Cuap, 476.

AN ACT to supply vacancies in the offices of justices of
the peace in the several towns of this State.

Passep April 18, 1859; three-fifths being present.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Section 1. Whenever a vacancy shall occur in the office of jus-
tice of the peace of any town in this State, the supervisor, town
clerk, and remaining justices of the peace, or a majority of such
officers, are hereby authorized by warrant under their hands and
seals to appoint a suitable person to fill said vacancy, and the person
so appointed shall hold said office until the next regular annual
town meeting in said town, unless the said appointment shall have
been made to fill the vacancy of an officer whose term of office
would have expired on the thirty-first day of December next, suc-
ceeding such appointment; in which case the term of office of the
person so appointed shall expire on the thirty-first day of December
next succeeding such appointment. And any person so appointed
may at once qualify and enter upon the discharge of the duties of
his office.

§ 2. Every such appointment shall be filed in the office of the
town clerk, and a copy thereof in the office of the county clerk
before the person so appointed shall be authorized to act.

[L. 1859, ch. 476 (8 Edm., 322), as amended by L. 1875, ch. 166.]

381

PART III.

Breach of
official
bond.

Vacancies
in office of
justice of

the peace,
how filled.

Appoint
bed filed:
JUSTICH'S
MANUAL,

Restrio-
tion.

Jurisdic-
tion of
town jus-
tices.

JURISDICTION. [STATUTES

Jurisdiction.

§ 5. No court shall be opened, or transact any business, in any
city or town, on the day such election shall be held therein, unless it
be for the purpose of receiving a verdict or discharging a jury, and
every adjournment of a court in such city or town, on the day next
preceding the day any such election shall be held therein, shall
always be to some other day than the day of such election, except
such adjournment as may be made after a cause has been committed
to a jury. But this section shall not prevent the exercise of the ju-
risdiction of any single magistrate, when it shall be necessary in
criminal cases to preserve the peace, or to arrest offenders.

[L. 1842, ch. 180, § 5, as amended by L. 1847, ch. 240, § 2 (1 Edm.,116); see §6
of the Code of Civil Procedure, page 160, ante. L.1878, ch. 354, applies the fore-
going provision to all towns. |

§ 8. Any justice of the peace of the town or towns in which such
village shall be located, shall have jurisdiction in all criminal cases
that may arise within the bounds of the village in the county in
which they severally reside, with the same powers and subject to the
*duties and liabilities as a justice of the peace in other cases. He
shall also have jurisdiction in all actions brought to recover fines or
penalties for the violation of any provision of this act, and of the
rules, by-laws and ordinances of the village, or to recover any tax or
assessment levied by the village, and his proceedings and judgments
may be reviewed in the same manner as is or shall be provided by
law in cases of judgments and proceedings of justices of the peace.
Said justice shall receive the same fees and compensation as is pro-
vided by law for similar services. The fees and compensation of
such justice shall be audited and paid and collected in the same
manner as the fees of justices of the peace for similar services. All
fines recovered by him in suits for the violation of the provisions of
this act, or the by-laws, rules and ordinances of the corporation, shall
be paid over to the treasurer of the village upon their receipt by
such justice. In such last-mentioned suits, if judgment is entered,
the said justice shall award costs including witnesses’ fees and other
legal disbursements, to the successful party, to the same amount as a
justice of the peace could in civilactions or proceedings before him.

 

* So in original.

382
UNREPEALED. | JURISDICTION.

[L. 1870, ch, 291, tit. 5, $3 (7 Edm., 694), as amended by L. 1878, ch. 59, § 6,
relating to the incorporation of villages. ]

§ 9. Section seven of title eight of said act is hereby amended so
as to read as follows:

§ 7. The first process in any suit brought by the village for a pen-
alty under this act, or a rule, by-law or ordinance adopted by the
board of trustees in pursuance of said act, shall be a summons or war-
rant. If the defendant in such action has no property, personal or
real, whereof the judgment can be collected, the execution shall re-
quire the defendant to be imprisoned in the county jail of the county
in which the village is situated, or in case such village shall be located
in two or more counties, then in the county jail of either of said coun-
ties, for a term not exceeding ten days.

[Id., § 7 of tit. 8(7 Edm., 702), as amended by § 9 of the act of 1878, ch. 59.
See Co. Civ. Proc., $8 2876, 3026, and 3033, pp. 10, 74, 76, ante, which repeal by
implication so much of the foregoing section, as allows a warrant to issue, and re-

quire a summons in all cases to issue, in an action for a penalty, indorsed as pre-
scribed in § 1897, page 295. See L. 1880, ch. 245, § 8, subd. 5.]

§ 9. In actions brought by or against the village, it shall not be
an objection against the person acting as justice or juror in any such
action, that he is a resident of the village, or subject to taxation
therein.

[Id., $ 9 of tit. 8 (7 Edm., 703), See Co. Civ. Proc., § 1179, page 252, ante.]

Cuap, 646.

AN ACT to suppress intemperance, pauperism and crime.
PassED May 29, 1873; three-fifths being present.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Sxotion 1. Every husband, wife, child, parent, guardian, employer,
or other person who shall be injured in person, or property, or
means of support, by any intoxicated person, or in consequence of
the intoxication, habitual or otherwise, of any person, shall have a
right of action in his or her name, against any person or persons
who shall, by selling or giving away intoxicating liquors, have
caused the intoxication, in whole or in part, of such person or per-

383

PART ITI.

Process by
summons,
or war-
rant.
Imprison-
ment for
non-pay-
ment.

Compe-
tency of
inbabi-
tants as
justices,
jurors, etc.

Persons
injured
may main-
tain action
against
seller, etc.
JUSTICES
MANUAL,

Jurisdic-
tion of
justices of
the peace.

Taking
bonds, etc.

JURISDICTION. [STATUTES

sons, and any person or persons owning or renting or permitting the .
occupation of any building or premises, and having knowledge that
intoxicating liquors are to be sold therein, shall be liable severally,
or jointly with the person or persons selling or giving intoxicating
liquors aforesaid, for all damages sustained and for exemplary dam-
ages; and all damages recovered by a minor under this act shall be
paid either to such minor or to his or her parent, guardian or next
friend, as the court shall direct; and the unlawful sale or giving
away of intoxicating liquors shall work a forfeiture of all rights of
the lessee or tenant under any lease or contract of rent upon the
premises.

§ 2. In any action arising for violations of the provisions of this
act, any justice of the peace in the county where the offence is com-
mitted shall have jurisdiction to try and determine the same, pro-
viding the amount of damages claimed do not exceed two hundred
dollars, in which case and where the damages claimed do not exceed
five hundred dollars, the justice of the peace before whom the action
is commenced, shall associate with himself any other two justices of
the peace in the same county, who shall have jurisdiction to try and
determine the same.

§ 3. This act shall take effect immediately.

[L. 1878, ch. 646 (9 Edm., 698).]

§ 59. No sheriff or other officer shall take any bond, obligation
or security, by color of his office, in any other case or manner than
such as are provided by law; and any such bond, obligation or
security, taken otherwise than as herein directed, shall be void.

[2 R. §., 286, § 59 (2 Edm., 296); 18 N. Y¥.,117; 13 B., 365; 4B., 52; 2H.,
218; 1H., 22, 299; 23 W., 608; 21 W., 57, 90, 607; 19 W., 188; 19 J. R., 235; 7
J. R., 160; 23 N. Y., 821; 88 N. Y., 256; 29 N. ¥., 479; 28 N, Y., 320.]

384
UNREPEALED. | POLICE JUSTICE.

Cuap. 235.

AN ACT in relation to the payment of costs on arrest,
trial and punishment for crimes and misdemeanors in
villages, and in relation to the civil jurisdiction of police
justices therein. ‘

PassED May 8, 1880; three-fifths being present.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Sxction 1. In all cases where parts of two or more towns or parts
of two or more counties, or either or both, are included within the
limits of any incorporated village within this State, the legal ex-
penses for arrest, trial and punishment for crimes and misdemeanors
‘where, on conviction, the fine, penalty or forfeiture goes to such
village, shall be borne and paid by such village ; in all other cases,
the legal costs of arrest, trial and punishment, or either, within the
jurisdiction of, and entertained by, a police court of such village
shall be borne and paid by the town or county in which such offence.
was actually committed.

§ 2. In all cases of imprisonment of persons charged with the
commission of any offence, or under sentence on conviction of any
offence, within the jurisdiction of any police court of such village,
such imprisonment shall be in the county where such offence was
actually committed.

§ 3. The civil jurisdiction of all police justices within any in-
corporated village of this State shall be limited, to cases in which
said village is a party in interest.

§ 4. All acts or parts of acts, whether general or local, inconsist-
ent with the provisions of this act are hereby repealed.

§ 5. This act shall take effect immediately.

[Section 3 of the above act would seem to give to a police justice of a village,
jurisdiction in all cases, in which the village was a party, although the action
might be for other than a fine or penalty ; but how they shall proceed in such
actions, the legislature seems to have left entirely to the ingenuity of the justice.
The only law regulating their election, powers, etc.,is the act of L. 1875, ch.
514, as amended by L. 1876, ch. 308, which is as follows:

“$1. Upon the application in writing of not less than twenty-five
electors, inhabitants of any incorporated village in this State, in
which no provision now exists for the election of a police justice, the

[49] 385

PART III.

Civil juris-
diction of
police jus-
tices in
villages.
JUSTIOER’S
MANUAL.

CIVIL JURISDICTION OF POLICE JUSTICE, ~ [srarutzs

board of trustees of such village may determine by resolution to be
entered in their minutes of proceedings, that a police justice shall be
elected for such village; and if they shall so determine, the electors
of the village may at their then next annual election, or at a special
election to be called for the purpose and to be conducted in the same
manner as the annual election, choose a police justice who shall be a
resident elector of the village, and shall enter upon the discharge of
his duties as soon as he shall be duly notified of his election and shall
take and file in the office of the village clerk the constitutional oath
of office, and a bond with sureties in such sum as the board of trus-
tees shall prescribe and to be approved by such board, conditioned for
the faithful performance of his official duties. Such police justice
shall hold his office until the thirty-first day of December in the third
year succeeding his election. Thereafter the term of such office shall
be three years, commencing with the first day of January, and at the
annual charter election next preceding the expiration of a regular
term, a police justice shall be elected on the same ticket with other
elective village officers. Whenever a vacancy shall occur in the office
of such police justice, it shall be filled by appointment to be made by
the board of trustees; and the person thus appointed shall hold his
office till his successor, who shall be chosen at the next annual elec-
tion, for the unexpired portion of the term, shall have taken and filed
the constitutional oath of office and bond as hereinbefore provided.
“8 2. Such police justice shall have, within the village in which he
shall have been elected or appointed, and in cases where the alleged
crime or misdemeanor has been committed within such village, exclu-
sive jurisdiction, except as hereinafter provided, to issue all warrants,
hear and determine all complaints and to conduct all examinations
and trials in criminal cases that may now by law be had by a justice
of the peace, or before a court of special sessions; and shall have the
same power and jurisdiction in such criminal cases, which justices of
the peace now have by law, or which may hereafter be conferred upon
justices of the peace, by law, and shall have exclusive jurisdiction in
all cases of violations of ordinances of the village of which he is police
justice. He shall also have authority to administer oaths in verifica-
tion of accounts and claims against the village, but shall have no other
civil jurisdiction.(*) He shall receive for his services an annual salary
to be fixed by the board of trustees, which shall not be increased or
decreased during his term of office, but shall not retain to his own use
any costs or fees. Said justice shall be subject to the same liabilities,
and his judgments and proceedings may be reviewed in the same man-
ner and to the same extent as now by law provided in case of justices
of the peace. It shall be the duty of the several justices of the peace
of the town in which such village is wholly or partially situated,
during the sickness, absence from the village, or inability to act, of
the said police justice, or during a vacancy in said office, to render the
same services and perform the same duties, and they shall be entitled
to receive the same fees therefor as though no police justice had been
elected or appointed in such village. But it shall not be lawful for
said justices of the peace, to make any charge against such village, or
the town or county in which the same is situate, for services rendered
in or respecting criminal cases, trials or examinations in such village,
or where the subject-matter thereof arose in such village. except as
hereinbefore stated, during the sickness, absence from the village or

386

 

(a) Seo §3 of the above act. \
UNREPEALED. ] SERVICE OF MANDATES.

inability to act of the said police justice, or during a vacancy in said
office.

§ 3. It shall be the duty of the said police justice to provide a suit-
able book, and therein to enter and keep a record of the several com-
plaints made before him, in which a warrant or other process for the
arrest of any person accused shall be hae and of all cases in
which the offender or person accused shall be brought before him with-
out process ; which record shall contain, under the proper date, a brief
statement of the names of the parties, the nature of the offence
charged, the action of the said police justice thereon; and an accu-
rate account of all fines, penalties and costs imposed and collected by
him or which may be ordered to be paid by any offender. And annu-
ally, at least two weeks before the time appointed for holding the
charter election of said village, and oftener when required by resolution
of the board of trustees, he shall make a report in writing to the clerk
of the village of all fines, penalties and costs imposed and collected
by him ; and the same day on which he shall make such report he
shall pay over to the treasurer of such village all fines, penalties and
costs in his hands belonging to said village. The provisions of this
act shall not apply to any village in the county of Madison.

§ 4. This act shall take effect immediately ”.]

Service of mandates.

§ 69. No writ, process, warrant, order, judgment, decree, or other
proceeding of any court or officer of justice, shall be served or exe-
cuted upon the first day of the week, called Sunday, except in cases
of breach of the peace, or apprehended breach of the peace, or for
the apprehension of persons charged with crimes and misdemeanors,
or the violation of any of the provisions of this and the preceding
article, and except where such service shall be specially authorized
by law. The service of any such process or proceeding, in all other
cases, shall be utterly void, and shall subject the party offending to
damages, at the suit of any person aggrieved.

[1 R. &., 675, § 69 (1 Edm., 628); 4.N. Y¥., 296; 12 W., 59; 8 Cow., 30; 1 Cow.,
75;15 J. B., 177; 125. BR. 179; 3d. R., 257; 20 How. Pr.,81; 8 B., 384; 39 N.
Y., 129.]

387

PART OL

Certain
process
not to be
served on
Sundays.
Service
void, etc.
JUSTIOR’S
MANUAL,

Exem
tions from
DH ie

and jury
duties.

Process
not to be
served.

Id.

Repeal.

Civil pro-
cess.

Privileges.

SERVICE OF [STATUTES

Cuap. 349.

AN ACT in relation to proceedings against persons observ-
ing as the Sabbath the day commonly called Saturday.

PassED November 10, 1847.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Sxcrion 1. No person whose religious faith and practice is to keep
the seventh day of the week, commonly called Saturday, as a day
set apart by divine command as the Sabbath of rest from labor, and
dedicated to the worship of God, shall be subject to perform military
duty or jury duty in a justice’s court, on such day, except that such
persons shall be subject to perform military duty on such day in
case of invasion, insurrection, or in time of war.

§ 2. Any person who shall knowingly and maliciously cause or
procure any process issued from a justice’s court, in acivil suit, to be
served on said day upon any such person, or who shall serve any
such process which shall be made returnable on said day, shall be
deemed guilty of a misdemeanor, and upon conviction thereof, shall
be subject to a fine not exceeding one hundred dollars, or imprison-
ment not exceeding thirty days, or both.

§ 8. Any person who shall in like manner procure any such suit,
pending in such court against any person of such religious faith and
practice, to be adjourned, to be tried on said day, shall be deemed
guilty of a misdemeanor, and subject to like punishment.

§ 4. The act entitled, “ An act in relation to Seventh Day Bap-
tists,” passed May 7, 1839, is hereby repealed.

[4 Edm., 45.]

§ 10. Whenever a town-meeting shall be held in any town, no
civil process shall be served in such town on any elector entitled to
vote therein, on any day during which such town-meeting shall be
held.

[1 R.8., 342, $10 (1 Edm., 315).]

§ 4. Whenever an election shall be held in any city or town, pur-
suant to this chapter, no declaration by which a suit shall be com-
388
UNREPEALED. | MANDATES.

menced, or any civil process, or proceeding in the nature of civil
process, shall be served on any elector entitled to vote in such city
or town, on the day on which such election shall be held.

[L. 1842, ch. 180, § 4 (1 Edm., 116). The following statute, L. 1878, ch. 354,
applies the foregoing provision to all towns. ]

Cuap. 354.

AN ACT to amend chapter one hundred and thirty, laws
of eighteen hundred and forty-two, entitled “An act re-
specting elections other than for militia and town offi-
cers”, and the several acts amendatory thereof.

PassED May 24, 1878 ; three-fifths being present.

The People of the State of New- York, represented in Senate and
Assembly, do enact as follows :

Ssction 1. Title one of chapter one hundred and thirty of the
laws of eighteen hundred and forty-two, entitled “ An act respect-
ing elections other than for militia and town officers”, and the sev-
eral acts amendatory thereof, is hereby amended by adding thereto
the following as an additional section:

§ 6. This title shall apply to all town meetings held, in the several
towns of this State, as well as to the elections named and provided
for in this act.

§ 56. Every notice or other paper which shall be required to be
served on any sheriff, may be served by leaving the same at the
office designated by him in such notice, during the hours for which
it is herein required to be kept open; but if there be any person
belonging to such office therein, such notice or paper shall be de-
livered to such person; and every such service shall be deemed
equivalent to a personal service on such sheriff.

§ 57. If no notice shall be filed by any sheriff with the county
clerk as herein required, the service of all papers on such sheriff

may be made by leaving them at the office of the county clerk,
389

PART IIL.

Title one
to apply to
town
meetings.

Papers
may be
served at
sheriff’s
office. ,

ee on
olarke
See SERVICE OF MANDATES. [STATUTES

with such clerk or his deputy; and the same shall be deemed equiv-
alent to a personal service on such sheriff.
(2 R.S., 285, S$ 56-57 (2 Edm., 296).]

Crap. 102

AN ACT to amend chapter four hundred and eighty-four
of the laws of eighteen hundred and sixty-two, entitled
“ An act in relation to the courts in the city and county
of New-York,” passed April twenty-fourth, eighteen
hundred and sixty-two, as amended by chapter five hun-
dred and sixty-nine of the laws of eighteen hundred and
sixty-four, entitled “An act to amend sections eleven,
fourteen and fifteen of chapter four hundred and eighty-
four of the laws of eighteen hundred and sixty-two, andl

to confer additional powers on the marshals of the city

of New-York.”
PassED March 22, 1879.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Sxction 1. Section fourteen of chapter four hundred and eighty-
four of the laws of eighteen hundred and sixty-two, entitled “ An
act in relation to the courts in the city and county of New-York,”
passed April twenty-fourth, eighteen hundred and sixty-two, as
amended by chapter five hundred and sixty-nine of the laws of
eighteen hundred and sixty-four, entitled “ An act to amend sections
eleven, fourteen and fifteen of chapter four hundred and eighty-four
of the laws of eighteen hundred and sixty-two, and to confer addi-
tional powers on the marshals of the city of New-York,” is hereby
amended so as to read as follows:

Process.by § 14. Every summons, warrant, attachment or other process issued
whom to e

peseryed by or ont of any of said district courts, or by any justice thereof,

ra and every summons issued by the clerk of said district court and
every summons issued by any justice thereof in any proceeding,
whether summary proceedings to dispossess tenants or otherwise,
shall be served and executed by the marshal of said city, except that
the justice of the court wherein the action is commenced, may

390
UNREPEALED. ] EVIDENCE.

depute some competent person to serve the summons and complaint
in any such action; but the person so deputed to serve such sum-
mons and complaint shall not be entitled to any fees or other com-
pensation therefor, except the persons who serve process for the
corporation attorney in the city of New-York.

[See § 2239, p. 381, ante, and note thereto.]

Cuap. 3805.

AN ACT to amend chapter two hundred and seventy-six
of the laws of one thousand eight hundred and forty-six,
entitled “An act extending the powers of a justice of
the peace as to issuing executions after the term of his
office has expired.”

PassED May 17, 1879 ; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Sxction 1. Section one of chapter two hundred and seventy-six
of the laws of one thousand eight hundred and forty-six, entitled
“ An act extending the powers of a justice of the peace as to issuing
executions after the term of his office has expired,” is hereby
amended go as to read as follows:

§ 1. Any justice before whom any judgment shall have been
entered, and whose term of office shall have expired, may issue or
renew executions on any such judgment after the expiration of his
said office, at any time within five years from the time said judg-
ment shall have been rendered, subject, however, in other respects
to the provisions as to issuing executions on justices’ judgments.

§ 2. This act shall take effect immediately.
[See $8027, and note thereto, pages 74-75, ante. }

 

Evidence.

§ 8. The affidavit of the party publishing or posting any notices
required to be posted or published by the provisions of this act, or

by any rule, by-law or ordinance made in pursuance thereof, of such
391

PART III.

Execution
after expt-
ration of
term.

Proof of
notices.
JUSTICE’S
MANUAL,

Foreign
corpora-
tions, evi-
dence of
formation,
ete.

EVIDENCE. [STATUTES

posting or publishing, shall be deemed presumptive evidence thereof
in all courts and places and in all actions and proceedings.

fe 1870, ch. 291, tit. 8, § 8, relating to the incorporation of villages. See L.
1879, ch. 211, below.]

Cuap. 811.

AN ACT in relation to corporations or joint-stock com-
panies of other states, territories, or dominion of Canada.
PasseD May 22, 1877.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Ssorion 1. Whenever, by the laws of any other state or territory,
or the dominion of Canada, a copy of the certificate of organiza-
tion or incorporation or any other certificate, certified or exemplis
fied by any officer or officers in such state or territory or dominion,
is, or shall be prima facie evidence of the due formation, creation.
existence, organization or capacity of any corporation or joint-stock
company, created, organized or located in such state, territory or
dominion, or claiming so to be, such certificate or certiticates, duly
exemplified, or a duly exemplified copy thereof, shall be received
in all actions and proceedings in this State, in or before all courts
and officers, with the same force and effect in all respects as prima
facie evidence as aforesaid, as in such other state, territory or

dominion.

Cuap. 211.

AN ACT to amend chapter two hundred ana nineteen of
the laws of eighteen hundred and seventy-eight, entitled
“An act in relation to evidence in civil and criminal

cases.”
PassED April 25, 1879.

The People of the State of New- ¥: ork, represented in Senate and
Assembly, do enact as follows :
Szorton 1. Section one of chapter two hundred and nineteen of
the laws of eighteen hundred and seventy-eight, entitled “ An act
392
UNREPEALED.] ACTIONS BY EXECUTORS, ETC. PART III.

in relation to evidence in civil and criminal cases,” is hereby
amended so as to read as follows:
$1. Any act, ordinance, resolution, by-law, rule or proceeding of Evidence

: ; . of acts,

the common council of a city, or of the board of trustees of an in- ordinan-
’ Pid

corporated village, or of a board of supervisors of any county (imu.

a4 : : cor
within this State, and any recital of occurrences, taking place at re

the sessions of any thereof, may be read in evidence on any trial,
examination or proceeding, whether civil or criminal, either from a
copy thereof certified by the clerk of the city, village, common
council or board of supervisors, or from a volume printed by
authority of the common council of the city or board of super-
visors of the county, or of the board of trustees of any incorpo-
rated village.

§ 2. This act shall take effect immediately.

[See § 941, page 237, ante, and § 8, page 391, ante.]

CHap. 386.

AN ACT to amend the law of evidence and practice on
civil and criminal trials.

PassEpD February 28, 1880; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Section 1. Comparison of a disputed writing, with any writing compari-
proved to the satisfaction of the court to be genuine, shall be per- hands
mitted to be made by witnesses in all trials and proceedings, and
such writings and the evidence of witnesses respecting the same
may be submitted to the court and jury as evidence of the genuine-
ness, or otherwise, of the writing in dispute.

§ 2. This act shall take effect immediately.

Actions by executors.

§ 2. Actions of account, and all other actions upon contract, may Actions by

be maintained by and against executors, in all cases in which the 2237s.
[50] 393
JUSTICE'S
MANUAL.

Admin-
istrators’
rights and
liabilities.

Trespass
by execu-
tors, esc.

Actions
for
wrongs.

Excep-
tions.

Executors
of execu-
tors,

ACTIONS BY EXECUTORS, ETC. [STATUTES

same might have been maintained, by or against their respective
testators.
[See Laws of 1838, ch, 149 (4 Edm., 505); 6 N. Y., 168.]

§ 3. Administrators shall have actions to demand and recover the
debts due to their intestate, and the personal property and effects of
their intestate; and shall answer and be accountable to others to
whom the intestate was holden or bound, in the same manner as
executors.

§ 4. Executors and administrators shall have actions of trespass
against any person who shall have wasted, destroyed, taken or car-
ried away, or converted to his own use, the goods of their testator
or intestate in his life-time. They may also maintain actions for
trespass committed on the real estate of the deceased, in his life-

time.
[2 R. 8., 118, §§ 1-4 (2 Edm., ae a N. Y., 3384; 28 B., 607; 19 B., 471; 16

How. P. R., 279 ; 25 How. P. R.,

$1. For wrongs done to the property, rights or interests of
another, for which an action might be maintained against the wrong-
doer, such action may be brought by the person injured, or after
his death, by his executors or administrators, against such wrong-
doer, and after his death, against his executors or administrators, in
the same manner and with the like effect in all respects, as actions
founded upon contracts.

[19 N. Y., 474; 28 B., 607 ; B., 3830; 2 B., 378; 1 B., 230; H. & D., 119; 16 How.
386.1" 15, 279, 378 ; 5 W., 318; oD, 477 ; oe 396 ; 38 B., 20; 25 How. P. R.,
§ 2. But the preceding section shall not extend to actions for
slander, for libel, or to actions of assault and battery, or false im-
prisonment, nor to actions on the case for injury to the person of
the plaintiff, or to the person of the testator or intestate of any exe-

cutor or administrator.
[2 R.8., 447, $§ 1 and 2 (2 Edm., 467); 19 N. Y., 474; 25 How. P, R., 286.]

§ 11. An executor of an executor shall have no authority to com-
mence or maintain any action or proceeding relating to the estate,
effects or rights of the testator of the first executor or to take any
charge or control thereof, as such executor.

(Id.,§ 11; 19 B., 653; 18 B., 370; 5 Pai., 36.]
394
UNREPEALED. | TAX SALES: PENALTIES. PART UL

Proceedings to recover surplus on tax sales.

§ 28. Whenever a surplus arising from the sale of any property gurpius of
: tax sales

distrained for taxes, paid overto the supervisor of a town, shall be pald to
claimed by any other than the person for whose tax such property

was sold, and such claim shall be contested by such person, such
claimant shall be entitled to maintain an action against such person ;

and the person for whose tax such property was sold, may also
maintain such action against such claimant, as for money had and
received ; in which the right of the respective parties to such sur-

plus, shall be tried and determined.

§ 29. For the purposes of such action, the defendant shall be Duty of |
deemed to be in possession of the surplus in the hands of the super-
visor. Upon a certified copy of the final judgment that shall have
been rendered in favor of either party, being produced to the super-
visor, in whose hands such surplus shall be, he shall pay over the
same to the party so recovering. And no supervisor shall be liable
to any action in favor of any claimant of such surplus, the right of
which shall be contested as provided in the fourth section of the
third Title of chapter thirteen of the First Part of the Revised
Statutes, until he shall have refused to pay over such surplus upon
the production of a judgment as aforesaid.

§ 30. In any action brought pursuant to the two last preceding Judgment
sections, no other cause of action shall be joined, nor shall any set- tion, etc.
off be allowed; and if an execution issue on a judgment so rendered,
it shall direct the costs only of such judgment to be levied thereon.

[2 R. S., 555, $§ 28-30 (2 Edm., 576). See 1 R. 8, 398, § 4 (1 Edm., 370).]

Penalties.

15. To direct the payment, by justices of the peace, of all fines Fines and .
and penalties imposed by and paid te such justices in their respect- disposi- :
ive towns to the supervisors of such towns, respectively, to be ap-
plied by them toward the support of the poor of such towns, or to
the superintendents of the poor when the support of the poor is a
county charge.

[From L. 1875, ch. 482, § 1, page 559, relating to the powers of boards of super-
visors. |

395
MANUAL PENALTIES. [STATUTES

Cuap. 573.

AN ACT to amend an act entitled “An act to regulate
the size of apple, pear and potato barrels,” passed May
twelfth, one thousand eight hundred and sixty-two.

PassED June 9, 1875 ; three-fifths being present.

The People of the State of New- York, represented in Senate and
Assembly, do enact as follows :

Section 1. Section one of chapter one hundred and seventy-
eight, of the laws of eighteen hundred and sixty-two, entitled, “ An
act to regulate the size of apple, pear ana potato barrels,” is hereby
amended. so as to read as follows:

oo §1. A barrel of apples, quinces, pears or potatoes shall represent
a quantity equal to one hundred quarts of grain or dry measure, and
all persons buying or selling those articles in this State, by the bar-
rel, shall be understood as referring to the quantity specified in this
act. And any person or persons in this State who shall make, or cause
to be made, barrels holding less than the quantity herein specified,
knowing, or having reason to believe, that the same are to be used
for the sale of apples, quinces, pears or potatoes; or who shall use

Barrels barrels hereafter made, for the sale of those articles, of a size less

Sieg i than the size expressed in this act, shall be subject to a fine of five

using, peo- dollars for each and every offence, to be sued for and recovered by

howre’ any person aggrieved thereby for the use of the poor of the town or

covered.
county, as the case may be.

Justicesof § 2. In any action arising for violations of the provisions of this
the peace

have juris- act, any justice of the peace in the county where the violation of
diction. 2

this act shall have been committed shall have jurisdiction to try and
determine the same.

§ 3. This act shall take effect on the first day of January, one
thousand eight hundred and seventy-six.

[See § 2869, subd. 4, ante, page 7. Where the special act does not limit the
action tothe town where the offence is committed, § 2862, ante, page 3, will define
the jurisdiction. See L. 1875, ch. 215; L. 1876, ch. 347; L. 1878, ch. 49, 220
and 237; L. 1880, ch. 489, ete. ]

396
UNREPEALED. | PENALTIES. PART IIL

Cuap. 71.
AN ACT relating to actions brought by the mayor, alder-

men and commonalty of the city of New-York, to recover
penalties for violations of corporation ordinances and the
collection thereof.
PassED March 11, 1879.
The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Sxction 1. All actions which may hereafter be brought or com- aotions
for penal-

menced by or on behalf of the mayor, aldermen and commonalty of ties a N.
the city of New-York, to recover a penalty or fine for a violation
of any corporation ordinance, where the amount of such penalty or
fine shall not exceed the sum of two hundred and fifty dollars, must
be brought in a district court in the city of New-York, held in the
judicial district in which the violation of such corporation ordinance
happened or occurred, and the justice of the same judicial district
may direct any of the city marshals to collect the payment and make
return, in the same manner as now provided by law.

§ 2. All acts and parts of acts inconsistent with the provisions of
this act are hereby repealed.

§ 3. This act shall take effect immediately.

§ 23. Whenever an action shall be brought to recover any penalty 5 44,

imposed by law for taking any rails, boards, planks or staves, from oper

ai sae 8 . : : ys 8 : of canal
the banks or vicinity of a canal, in which a justice is authorized to boats.

direct the detention of any canal boat, he shall not indorse such
direction on any warrant, unless a bond, as prescribed in the next
section, shall be executed and delivered to such justice.

§ 24. Such bond shall be in the penalty of at least one hundred ee
dollars, with one or more sureties, to be approved by such justice, and condi-
conditioned that such action shall be prosecuted to judgment with
all convenient speed, and that if judgment be rendered in favor of
the defendant, the obligors will pay the costs and charges which

shall be adjudged against the plaintiff, and all damages which may
, 397
STICE’S
MANUAL.

This title
extended
to certain
special
courts.

Agents,
etc., to de-
liver up
books, etc,

Proceed-
ings to
compel
delivery.

CANAL BOOKS, ETC. [STATUTES

ensue from the detention of such boat and the cargo thereof, and
the crew navigating the same.

ieee preceding sections 23 and 24 are 2 R.S., 229, $$ 23, 24 (2 Edm., 245). See
1.8. 247 1 Edm., 247).]

§ 231. The several provisions of this title, so far as the same
may be applicable, shall apply to the justices’ courts in the cities of
Albany, Hudson and Troy, respectively, except in those cases where
repugnant provisions exist in the acts organizing those courts, or
relating thereto; but the provisions of this title shall not be con-
sidered as applicable to the courts in the city of New-York.

(2 B, 8, 267, § 281 (2 Edm,, 275). Relates to the last two sections. ]

Proceedings to recover books, ete., of camal employees.

§ 183. It shall be the duty of every agent, toll collector, lock-
keeper or superintendent, employed on any canal, and occupying
any house, office, building, or land, belonging thereto, who shall be
discharged from his employment ; and of the wife and family, of
every such person, who shall die in such employment; to deliver up
the possession of the premises so occupied, and of all books, papers,
matters or things belonging to the canals, acquired by virtue of his
office, within seven days after a notice shall have been served for
that purpose, by the acting canal commissioner.

[1 R.S., 249, § 188 (1 Edm., 250).]

§ 184. In case of a refusal or neglect to make such delivery, in
either of the above cases, it shall be the duty of any justice of the
peace, in the county where such premises shall be situate, upon ap-

plication, to issue his warrant under his hand and seal, ordering any

constable or other peace officer, with such assistance as may be neces-
sary, to enter upon the premises so occupied, in the day-time, and
remove therefrom all persons found in possession thereof, and to
take into his custody all books, papers, matters and things there
found, belonging to the canals, and to deliver the same to the acting
canal commissioner, or his authorized agent; and the officer to whom
such warrant shall be delivered, shall execute the same according to
its purport.

[Id., § 184.

398
UNREPEALED.] ACTIONS, ETC., BY OR AGAINST TOWNS.  PA&sTIr.

Actions, ete., by or against towns.

1 i Proceed-
Section 1, Whenever any controversy or cause of action shall frocee?_,

exist between any towns of this State, or between any town and an ses
individual or corporation, such proceedings shall be had, either at towns, ete.
law, or in equity, for the purpose of trying and finally settling such
controversy, and the same shall be conducted in like manner, and

the judgment or decree therein shall have the like effect, as in other

suits or proceedings of a similar kind, between individuals and cor-
porations.

[8 B., 625;1 D., 510.]

§ 2. In all such suits ana proceedings, the town shall sue or be Town, how

sued by its name, except where town officers shall be authorized by
law to sue in their name of office, for the benefit of the town.

§ 3. In all legal proceedings against towns by name, the first pro- Process to

cess, and all other proceedings requiring to be served, shall be served Yisor

on the supervisor of the town; and whenever any such suit or pro-
ceeding shall be commenced, it shall be the duty of the supervisor
to attend to the defence thereof, and to lay before the electors of
the town, at the first town-meeting, a full statement of such suit or
proceeding, for their direction in regard to the defence thereof.

§ 4. On the trial of every action in which a town shall be a party Inhabit-

ants, when

or be interested, the electors and inhabitants of such town shall be competent

competent witnesses and jurors, except that in suits and proceedings *™¢4¥7™*

by and against towns, no inhabitant of either town shall be a juror.
§ 5. Any action in favor of a town, which, if brought by an in- Actions in

favor of a

1 iustic town may
vidual, could be prosecuted before a justice of the peace, may be Mabank

prosecuted by such town, in like manner, before any such justice ; justice:

but no action to recover a penalty given to a town, shall be brought
before any of the justices of the peace residing in the town, for the
benefit of which the same is prosecuted; but all such actions may
be brought before any one of the justices of the peace residing in
any other town in the same county.
[6 H., 59.]
§ 6. Whenever any action shall be brought to recover a penalty, actions
imposed for any trespass committed on the lands of a town, if it shall tes or

appear, on the trial thereof, that the actual amount of injury to such on town
399
JUSTICE'S
MANDAL.

Costs.
Judg-
ments,
when a
town
charge.

In what
name to
act.

Contro-
versies
with
counties,
like those
between
individu-
als, etc.

Counties
when to
sue and be
sued in
name of
board of
super-
visors.

In pro-
ceedings
against
supervi-

ACTIONS, ETC., BY OR AGAINST COUNTIES. [statuTEs

town lands, in consequence of such trespass, exceeded the sum of
twelve dollars and fifty cents, then the amount of the actual damage,
with costr of suit, shall be recovered iu such action, instead of any
penalty for the same trespass, imposed by the town-meeting; and
such recovery shall be a bar to every other suit for the same trespass.

§ 8. In all suits or proceedings prosecuted by or against towns, or
by or against town officers in their name of office, costs shall be re-
coverable as in the like cases between individuals. Judgments re-
covered against a town, or against town officers in actions prosecuted
by or against them in their name of office, shall be a town charge,
and when levied and collected, shall be paid to the person to whom

the same shall have been adjudged.

ey preceding sections 1-6 and 8 are 1 R.S., 356, 357, §§ 1-6 and 8 (1 Edm.,329);
6 3 463. See §§ 1926-1931, ante, pages 307-309 ; and §§ 2991 and 2992, page 61,
ante,

Actions, etc., by or against counties.

§ 8. All acts and proceedings by or against a county in its cor-
porate capacity shall be in the name of the board of supervisors of

such county.
[Part of 1 R.8., 364, § 3 (1 Edm., 337).]

Sxction 1. Whenever any controversy or cause of action, shall
exist between any of the counties of this State, or between any such
county and an individual or individuals, such proceedings shall be
had, either at law or in equity, for the purpose of trying and finally
settling such controversy, and the same shall be conducted in like
manner, and the judgment or decree therein shall have the like
effect, as in other suits or proceedings of a similar kind between indi-
viduals and corporations.

[12 N. ¥., 63; 28.8. C., 471; 26 W., 69; 14 B., 52.]

§ 2. In all such suits and proceedings, the county shall sue or be
sued in the name of the board of supervisors thereof; except where
county officers shall be authorized by law to sue in their name of
oftice, for the benefit of the county.

[5 N. ¥.,66; 19 How. P. R., 873; 21 How. P. R., 182.]

§ 3. In all legal proceedings against the board of supervisors, the

first process, and all other proceedings requiring to be served, shall
400
UNREPEALED. | TOWN MEETINGS. PART IL

be served on the chairman or clerk of the board of supervisors; and 0's, pro-
0 be

whenever any such suit or proceeding shall be commenced, it shall s?ryedon
be the duty of such chairman or clerk, to lay before the board of “ aoe
supervisors, at their next meeting, a full statement of such suit or
proceeding, for their direction in regard to the defence thereof.

§ 4. On the trial of every action in which a county shall be inter- whee

ested, the electors and inhabitants of such county shall be competent interested,

: . ants com-
witnesses and jurors. petent

witnesses
§ 5. Any action in favor of a county, which if brought by an indi- roe
lounty

vidual, could be prosecuted before a justice of the peace, may be may sue

prosecuted by such county, in like manner before any such justice. hey fhai-

. * 3 3 vidual can,
§ 6. In all suits and proceedings prosecuted by or against counties, Costs re
coverable

or by or against county officers, in their name of office, costs shall be between
? : individ-

recoverable as in the like cases between individuals. Judgments sae

. . : : : mento a
recovered against counties, or against county officers, in actions prose- county

harge.
cuted by or against them in their name of office, shall be county es
charges, and when levied and collected, shall be paid to the person
to whom the same shall have been adjudged.

[The preceding six sections are 1 R. §., 384, $$ 1-6 (1 Edm., 356).]

§ 35. Where any county has been or shall be divided, any judg-
ment that may have been recovered previous to such division, or after
such division upon any proceedings instituted previous thereto,-in
the court of common pleas of such county, or before any justice of
the peace thereof, may be collected by execution to be issued to the
sheriff of the county where such judgment shall have been rendered,
or to a constable thereof, as the case may require, who shall execute
the same, in the same manner as if such division had not been made;
and such judgments may be revived, and the like proceedings may

be had thereon, as if such county had not been divided.
[2 R. S., 556, § 35 (2 Edm., 577).]

Duties of justices of the peace at town meetings.

$11. It shall be the duty of the justices of the peace of each topresiie
town, to attend every town-meeting held therein ; and such of them
[51] 401
JUSTICE’S
MANUAL.

Power to
preserve
order.

Presiding
officer if
justice
absent.

If town
neglect to
choose,
justices to
appoint.

Appoint-
ment

where
filed, etc.

Resigna-
tion of
town
officers.

VACANCIES IN TOWN OFFICES. [STATUTES

as shall be present, shall preside at such meeting, and shall see that
the same is orderly and regularly conducted.

[36 B., 572.]

§ 12. The officers so presiding shall have the like authority to
preserve order, or to enforce obedience, and to commit for disorderly
conduct, as is possessed by the board of inspectors at a general
election.

[17 W., 528.]

§ 18. If there be no justice of the peace present at such meeting,
then such person as shall be chosen for that purpose by the electors
present, shall preside, and shall possess the like powers as the jus-

tices.

[1 R. S., 342, §§ 11-13 (1 Edm., 315). The justice is entitled _to two dollars a
day for each day he serves the town, L. 1870, ch. 242, § 2 (7 Edm., 676).]

Proceedings by justices of the peace relative to vacancies in town
offices, and to the resignation and removal of officers.

§ 81. Ifany town shall omit or neglect at its annual town meet-
ing to choose its proper town officers or any of them, it shall be law-
ful for any three justices of the peace of said town, by a warrant
under their hands and seals, within five days after such town-meet-
ing, to appoint such officer or officers, and the person or persons so
appointed shall hold their respective offices until others are chosen
or appointed in their places, and shall have the same powers and be
subject to the same duties and penalties as if they had been duly
chosen by the electors; but if the justices of the peace fail to so
appoint, it shall be the duty of the town clerk, within thirty days.
thereafter, to call a special town-meeting for the purpose of electing
such officer or officers.

§ 32. The justices making such appointment, shall cause such
warrant to be forthwith filed in the office of the town clerk, who
shall forthwith give notice to the person appointed.

§ 83. Any three justices of the peace of a town may, for sufficient
cause shown to them, accept the resignation of any town oflicer of
their town; and whenever they shall accept any such resignation,

402
UNREPEALED.| VACANCIES IN TOWN OFFICES. PART IIT,

they shall forthwith give notice thereof to the town clerk of the

town.

§ 34. If any person chosen or appointed to the office of super- Special
visor, assessor, commissioner of highways, or overseer of the poor, meeting to
shall refuse to serve, or shall die or resign, or remove out of the Y*"'®
town, or become incapable of serving before the next annual town-
meeting after he shall have been chosen or appointed, the town clerk
shall, within eight days after the happening of such vacancy, call a
special town-meeting for the purpose of supplying the same.

(2 H., 872; 18 W., 515.]

§ 35. If the electors shall not, within fifteen days after the hap- 1a.; when
justices t
pening of such vacancy, supply the same by an election at town- appoint.

meeting, the same shall be supplied by the justices of the town, in
the like manner and with the like effect as above provided.
[18 W., 515.

§ 86. Vacancies in all town offices, except the office of supervisor, Other _
assessor, commissioner of highways, overseer of the poor, collector, Beret
or overseer of highways, shall be supplied by the justices of the
town, in the manner provided in the thirty-first section of this title.
Vacancies in the office of collector shall be supplied in the manner
prescribed in chapter thirteen, and vacancies in the office of over-
seer of highways, in the manner prescribed in chapter sixteen of
this act.

[18 W., 515; 8 How. Pr., 363. A vacancy in the office of collector, occasioned by
death, resignation, removal, or refusal to serve, is filled by the supervisor and
two justices of the town or ward,1R.8., 399, § 11 (1 Edm., 871); a vacancy in
the office of overseer of highways is filled by the commissioners of highways, 1 R.
S., 504, § 14 (1 Edm., 463). If a vacancy in those offices occurs by a failure to
elect, it must be filled as prescribed in $§ 31 and 35, above.]

§ 87. Whenever a vacancy shall occur in any town office, which When

justices of

justices of the peace are authorized to fill, and there shall be less adjoining,

than three justices residing in the town in which such vacancy shall “*

occur, the justice or justices residing in such town may associate
with themselves one or more justices of the peace from any adjoin-
ing town as may be necessary to make the number of three; and
such three justices shall have the like power to fill such vacancy as
if they were respectively justices of the town m which the vacancy

oceurred.

[The preceding sections 31-87 are 1 R. S., 347, 348, $$ 31-37 (1 Edm., 320), as 8§
84 and 37 are amended by L. 1830, ch, 320, and § 31 by L. 1874, ch. 543.]

403
.
JUSTICH'S
MANUAL.

Assessors
to be
classified.

The elect-
ors to
determine
whether
one or
three
highway
commis-
sioners to

be chosen.

Their
powers
and term
of office.

Vacancies
how filled.

VACANCIES IN TOWN OFFICES. [STATUTES

§ 4. There shall be elected at the next annual town-meeting, three
assessors in each town, who shall be classified as commissioners of
highways are by the second section of this act required to be; and
one assessor shall annually thereafter be elected for the term of three
years; and all of the provisions of said second section, relative to the
classification, term of office and filling vacancies of three highway
commissioners shall apply to such assessors.

[L. 1845, ch. 180, § 4 (8 Edm., 304).]

§ 2. The electors of each town shall have power at their annual
town-meeting, to determine by resolution whether there shall be
chosen one or three highway commissioners, and the number so
determined upon shall be balloted for and chosen ; and if only one
shall be determined upon and chosen, he shall possess all the powers
and discharge all the duties of commissioners of highways as pre-
scribed by law, and shall hold his office for one year. And whenever
three commissioners shall be chosen in any town they shall be divided
by lot by the canvassers, upon the result of the canvass, into three
classes, to be numbered one, two and three; the term of office of the
first class shall be one year, of the second, two, and of the third, three;
and one commissioner only shall thereafter annually be elected in
such town, who shall hold his office for three years, and until a suc-
cessor shall be duly elected or appointed: but in case any commis-
sioner shall be elected to fill a vacancy, he shall hold the office only
for the unexpired term which shall have become vacant ; and if two
vacancies shall be required to be filled, the canvassers shall, after the
canvass, determine by lot, as aforesaid, the terms they shall respect-
ively hold. And when any vacancy shall happen by death, removal,
resignation, neglect to qualify, or refusal to serve, it shall be supplied
until the next succeeding annual town-meeting by an appointment
in writing, under the hands of any three justices of the peace, or two
justices and the supervisor of the town; and every commissioner of
highways shall be authorized to administer oaths to any witnesses or
juries, in proceedings which may be had by or before them; and
whenever any town shall have determined upon having three com-
missioners, and shall desire to return two or have but one, such town
shall have the power so to do by a resolution taken at an annual

404
UNREPEALED. | TOWN AUDITORS.

town-meeting, and when such resolution shall have been adopted, no
other commissioner shall be elected or appointed, until the term or
terms of those in office at the time of adopting such resolution shall
expire or become vacant; and they shall have power to act until
their terms shall severally become vacant or expire, as fully as if the
three continued in office.

[Id., § 2, as amended by L. 1847, ch. 455, § 1 (8 Edm., 311); 27 B., 238; 4’D., 260.]

§ 268. If any constable shall have collected any money on execu-
tion, and a recovery therefor shall have been had against his sureties,
upon a complaint thereof being made to any three justices of the
same town, they shall summon such constable to appear before them,
to show cause why he should not be removed from his office.

§ 269. If such complaint be established to the satisfaction of such
justices, or of any two of them, after a hearing of the parties, or after
the refusal or neglect of the constable to appear upon such summons,
they shall, by an instrument under their hands, remove such consta-
ble from his office, assigning therein the reason of such removal, and
shall file the same in the office of the town clerk, who shall forthwith
cause a certified copy thereof to be served on such constable.

§ 270. Upon the service of a copy of such instrument, certified by
the town clerk, on the constable named therein, such constable shall
cease to have any power or authority as such, and his office shall be
deemed vacant.

[The preceding sections 268-270 are 2 R. 8. , 272, 8§ 268-270 (2 Edm., 281).]

§ 47. On the application of the officer accused to the district-
attorney, or to any justice of the peace, he shall be entitled to the
like process of subpoena, which may be enforced in the same man-

ner, by the judge before whom the inquiry shall be conducted.

[1 RB. 8., 124, ot (1 Edm., 118). The issuing of this subpcena is upon the ap-
plication of a sheriff, coroner or county clerk, upon a proceeding to remove him
from office.]

Of the board of auditors of town accounts.

PRELIMINARY Note.—By L. 1875, ch. 180, a new or different board of town
auditors was created; but several counties have been excepted from its provisions
(L. 1877, chs. 99 and 451; L. 1878, ch. 358, and L. 1879, ch. 179); in which coun-
ties the following provisions are still in force; and those regulating the powers
and duties of town auditors, also apply to the board created by the act of 1875.
See also L. 1831, ch. 145.

405

PART ITI,

Constables
to be sum-
moned,
etc.

When and
how to be
removed.

When
office
vacated.

Proceed-
ings upon
removal of
sheriffs,
clerks,
etc.
‘MANUAL TOWN AUDITORS. [STATUTES

Supervi- § 46. In each town, the supervisor and town clerk, together with
justices to the justices of the town, or any two of such justices, shall constitute
e au = . . -
ors of a board of auditors, to examine the accounts of the overseers of tne

certain
accounts. poor, the commissioners of common schools, and the commissioners

of highways ofsuch town, for moneys received and disbursed by

them.
Board of § 47. The board of auditors of town accounts shall meet for the
meevou

the Tues Purpose of examining the same, annually, in each town in this

ceding State, on the Tuesday preceding the annual town-meeting to be
annua

town i
ices held in such town.

Accounts: § 48. The accounts so audited shall be delivered, with the certifi-
be filed cate of the auditors, to the town clerk, to be by him kept on file, for

with town
clerk, and

read at the inspection of any of the inhabitants of the town. They shall
ti
meeting. also be produced by the town clerk, at the next annual town-meet-

ing, and shall be there read by him, if the same shall be required by
the meeting.
Justices § 49. The justices of the town, or a majority of them, and the

and town

clerk to town clerk, shall, on the Tuesday preceding the annual town-meet-

visor's ing, in each year, examine and audit the accounts of the supervisor,
accounts.
for moneys received and disbursed by him. The accounts, so au-
dited, shall be filed in the office of the town clerk, as above pro-
vided.

{1 R. 8, 355,88 46-49 (1 Edm., 328). See the following act of 1840, which
doubtless superseded at least the above §§ 46-48. ]

Cuap, 305.

AN ACT in relation to the accounts of town officers.

PassED May 14, 1840.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Board of Srction 1. The supervisor, town clerk, and justices of the peace,

own

auditors. or any two of the said justices of the peace of the several towns in
this State, shall constitute a board of town auditors for the purpose

406
UNREPEALED. | TOWN AUDITORS.

of auditing and allowing the accounts of all charges and claims pay-
able by their respective towns.
[1 H., 199.]

§ 2. The said board of auditors shall meet for the purpose of
auditing and allowing such accounts annually in each town, at the
place of holding the last town-meeting on the last Thursday preced-
ing the annual meeting of the board of supervisors of the county.

[As amended by Laws of 1844, ch, 228.]

§ 8. The said board shall make a certificate to be signed by a
majority of said board, specifying the name of the person in whose
name the account is drawn, the nature of the demand and the
amount allowed; and shall cause a duplicate of said certificate to be
made, one of which shall be delivered to the town clerk of said
town, to be by him kept on file for the inspection of any of the in-
habitants of the town, and the other shall be delivered to the super-
visor of said town, to be by him laid before the board of supervisors
of his county at their annual meeting.

§ 4. The said board of supervisors are hereby authorized and
directed to cause to be levied and raised upon said town, the amount
specified in said certificate, in the same manner as they are now
directed to levy and raise other town charges.

[L. 1840, ch. 305 (3 Edm., 302), as amended by L. 1844, ch. 228.]

Cuap. 321.

AN ACT to amend section twenty-seven, title seventeen of

chapter eight of part third of the Revised Statutes,
entitled “General miscellaneous provisions concerning
suits and proceedings in civil cases.”

PASSED May 2, 1874; three-fifths being present.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows:

Sscrion 1. Section twenty-seven of the seventeenth title of
chapter eight of the third part of the Revised Statutes is hereby
amended so as to read as follows:

PART III.

To meet
annually.

To make
certifi-
cates.

Duty of
board of
super-
visors,

Majority
may act.

407
JUSTICE’S
MANUAL.

No law
no pay.

Accounts
how and
when tobe
audited.

Saving
clause

Fees of
officers for
criminal
proceed-

TOWN AUDITORS. [STATUTES

§ 27. Whenever any power, authority or duty is confided by law
to three or more persons, and whenever three or more persons or
officers are authorized or required by law to perform any act, such
act may be done and such power, authority or duty may be exer-
cised and performed by a majority of such persons or officers upon
a meeting of all the persons or officers so intrusted or empowered,
unless special provision is otherwise made, and whenever a duty has
been or shall be enjoined by law upon three or more persons or
officers, and one or more of them shall have died, or have become
mentally incapacitated to act, or shall refuse or neglect to attend a
meeting of such persons upon reasonable personal notice thereof,
then the action of a majority of the whole number appointed shall
be binding and effective for all the purposes for which they were
appointed, unless special provision is otherwise made in existing

laws.

[1 B. S., 555, § 27 (2 Edm., 575), as amended by L. 1874, ch. 321; 20 N. Y., 173;
12 id., 156, 190; 2 id., 376; 16 id., 284; 30 Barb., 347; 23 id., 179,310; 4 Denio,
126; 21 Wend., 178, 211; 14 How. Pr.,308; 25 N.Y, 228; 7 Cow., 526; 6 Johns.,
39.]

§ 23. No town officer shall be allowed any per diem compensa-
tion for his services, unless expressly provided by law.

§ 24. No account shall be audited by any board of town auditors
or supervisors, or superintendents of the poor, for any services or
disbursements, unless such account shall be made out in items, and
accompanied with an affidavit attached to, and to be filed with such
account, made by the person presenting or claiming the same, that
the items of such account are correct, and that the disbursements
and services charged therein have been in fact made or rendered, or
necessary to be made or rendered at that session of the board, and
stating that no part thereof has been paid or satisfied. And the
chairman of such board, or either of said superintendents, is hereby
authorized to administer any oath required under this section.

§ 25. Nothing in the preceding section shall be construed to pre-
vent any such board from disallowing any account in whole or in
part, when so rendered and verified, nor from requiring any other
or further evidence of the truth and propriety thereof as such
board may think proper.

§ 26. All fees and accounts of magistrates and other officers for

criminal proceedings, including cases of vagrancy, shall be paid by
408
UNREPEALED. | TOWN AUDITORS.

the several towns or cities wherein the offence shall have been com-
mitted, and all accounts rendered for such proceedings shall state
where such offence was committed, and the board of supervisors
shall assess such fees and accounts upon the several towns or cities
designated by such accounts; but when any person shall be bound
over to the oyer and terminer, or court of sessions, or committed to
jail to await a trial in either of said courts, the costs of the proceed
ings had before the single magistrate, shall be chargeable upon the
towns or cities as aforesaid, and the costs of the proceedings had
after the person shall have been so bound over or committed, shall
be chargeable to the county; but nothing herein contained shall
apply to cases of felonies, nor where the proceedings or trial for the
offence shall be had before any court of oyer and terminer or court
of sessions of the county, and the fines imposed and collected in any
such cases shall be credited to said towns or cities respectively. And
whenever any criminal warrant or process shall be issued by any
magistrate residing out of the town or city wherein the offence shall
have been committed, it shall authorize the officer executing the
same, to carry the person charged with an offence under this act,
before any magistrate resident and being in the town or city wherein
such offence shall have been committed, to be proceeded against
according to the provisions of the fifteenth section of this act; but
the magistrate issuing such warrant or process, shall not lose any
jurisdiction over the trial and proceedings against any such persons
by reason of any thing herein contained, nor shall such magistrate be
allowed any compensation for any further proceedings in any such
case beyond issuing such warrant or process.

§ 27. No travel fees shall be allowed for travelling to subpeena a
witness, beyond the limits of the county in which the subpcena was
issued, or of an adjoining county, unless the board auditing the ac-
count shall be satisfied by proof that such witness could not be sub-
penaed without additional travel ; nor shall any travel fees for sub-
penaing witnesses be allowed, except such as the board auditing
the account shall be satisfied were indispensably necessary.

[L. 1845, ch. 180, $$ 23-27, as amended by L. 1847, chs. 455 and 490 (8 Edm.,
807, 308, 315); 30 How. Pr., 179; 67 N. Y., 382).]

[52] 409

PART III.

ings by
whom to
be paid.

Provision
as to travel
fees.
JUSTIOR’'S
MANUAL,

Town
auditors
to make
abstracts
of ac-
counts for
clerk of
super-
visors.

Counties
excepted.

Auditing
accounts
of justices
and con-
stables in
criminal
cases.

Appeal to
super-
visors of
county.

TOWN AUDITORS. [STATUTES

§ 24. It shall be the duty of boards of town auditors to make
annually brief abstracts of the names of all persons who have pre-
sented to said board accounts to be audited, the amounts claimed by
each of said persons, and the amounts finally audited by them re-
spectively, and shall deliver said abstracts to the clerk of the board
of supervisors, and the said clerk shall cause the same to be printed
with the statements required to be printed by him by the fourteenth
section of this act.

§ 26. Nothing in this act contained shall apply to the counties of
Kings, Queens, Suffolk or New-York.

[L. 1847, ch. 455, §§ 24, 26 (3 Edm., 318).]

CuHap. 832,

AN ACT to amend an act entitled “ An act conferring ad-
ditional powers on boards of town auditors,” passed
March third, eighteen hundred and sixty.

PassEep April 27, 1866 ; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Srcrion 1. Section one of the act entitled “An act conferring
additional powers on boards of town auditors,” passed March third,
eighteen hundred and sixty, is hereby amended so as to read as fol-
lows :

§ 1. The board of town auditors of the several towns of this
State, in addition to the authority now vested in such board, shall
have the power and it shall be their duty at their annual meeting to
audit the accounts of the justices of the peace and constables for
fees in criminal cases, which are by law chargeable to any such
town, and the amount thereof shall be included in their certificate
and assessed by the board of supervisors of the county upon such
town in the same manner as other town charges are now assessed

and collected.

§ 2. In every case where any account of a justice of the peace or
town constable for fees in criminal cases is audited by a board of
410
UNREPEALED. | TOWN AUDITORS.

town auditors of any town, any tax payer of said town may appeal
from such auditing and allowance to the board of supervisors of the
county, and such board of supervisors shall thereupon have power
to audit and allow such bill; and in case any such account shall be
disallowed or the amount thereof reduced, the party presenting the
same shall have the right of appeal as above provided.

§ 8. Such appeal shall be taken within five days after the allow-
ance or disallowance of a bill by such town auditors, in whole or in
part, by the service of a notice of appeal in writing on the town
clerk, and said town clerk shall forthwith thereafter transmit said
bill to the board of supervisors of said county to be audited and
allowed by them, and said board of town auditors shall have no
further jurisdiction over any such bill after the service of said notice
of appeal.

§ 4. If after service of any notice of appeal, the bill is not trans-
mitted to the board of supervisors as herein provided, no part thereof
shall be levied or collected.

§ 5. Such part of the town bills audited by the board of super-
visors after such appeals as shall be allowed shall be assessed, levied
and collected by the said board in the same manner as other town
charges.

[L. 1860, ch. 58 (3 Edm., 323), as amended by L. 1868, ch. 832 (6 Edm., 867). ]

Cuap. 274.

AN ACT to amend chapter four hundred and thirty-two of
the laws of eighteen hundred and seventy, entitled “An
act to amend section six of chapter eight hundred and
fifty-five of the laws of eighteen hundred and sixty-nine,
entitled ‘An act to extend the powers of boards of
supervisors, except in the counties of New-York and
Kings,’” passed April twenty-seventh, eighteen hundred

and seventy.
PassEp April 4, 1871; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Sxction 1. Section one of chapter four hundred and thirty-two
411

PART IT.

Within
what time
to be
taken.

When bill
Dot to be
levied, etc.

Collected
by tax.
JUSTICE'S
MANUAL.

Bills of
justices of
the peace
in criminal
proceed-
ings, what
to contain.

Appeals
from
action of
town
auditors
in ae
ing jus-
tice’s bills.

Decision
of board
of super-
visors to
be final.

Accounts
of over-
seers of
poor and

TOWN AUDITORS. [STATUTES

of the laws of eighteen hundred and seventy, is hereby amended so
as to read as follows:

§ 1. Section six of chapter eight hundred and fifty-five of the
laws of eighteen hundred and sixty-nine is hereby amended so as
to read as follows:

§ 6. The bills rendered by justices of the peace for services in
criminal proceedings shall, in all cases, contain the name and resi-
dence of the complainant, the offenses charged, the action of the
justice on such complainant, the constable or officer to whom any
warrant on such complaint was delivered, and whether the person
charged was or was not arrested, and whether an examination was
waived or had, and witnesses sworn thereon ; and the account shall
also show the final action of the justice in the premises. At any
time within fifteen days after the board of town auditors of any
town shall have filed with the town clerk thereof the certificate of
accounts audited as required by law, any tax payer of said town
may appeal from the action of said board of town auditors, in
auditing the account of any justice of the peace, to the board of
supervisors of the county. Said appeal shall be made by serving
notice thereof, in writing, on the town clerk of the town, and on
the clerk of the board of supervisors within the time above limited.
The said supervisors shall, thereupon, audit the accounts of such
justices of the peace, and their decision in the auditing and allow-
ing of said account shall be final.

§ 2. This act shall take effect immediately.

[L. 1869, ch. 855, § 6, as amended by L. 1871, ch. 274 (9 Edm., 78).]

Cuap. 172.

AN ACT in relation to the accounts of town officers.

Passep April 17, 1863 ; three-fifths being present.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Sxotton 1. The town auditors in the several towns of this State

shall examine the accounts of the overseers of the poor and the
412
UNREPEALED. | TOWN AUDITORS. PART Tr.

commissioners of highways of such town, for all moneys received commis-_
and disbursed by them, and shall meet for the purpose of examin- Mehways.
ing the same, annually, in each town of this State, on the Tuesday
preceding the annual town meeting to be held in each town.

§ 2. The commissioners of highways in each town of this State, 14; to,

. ‘ : : for
and all town officers who receive or disburse any moneys belonging moneys.

to their respective towns, shall, on the last Tuesday preceding the
annual town meeting of their town, account with the board of town
officers* of such town for all moneys received and disbursed by them
by virtue of their offices.

§ 3. The said board of town auditors shall make a statement of Auditors

such accounts, and append thereto a certificate, to be signed by a “°°%™"

majority of the board, showing the state of the accounts of the
said highway commissioners and other officers at the date of the
certificate ; which statement and certificate shall be filed with the
town clerk of the town, and be by him produced at the next anuual
town meeting, and publicly read.

§ 4. This act shall take effect immediately.

[6 Edm., 84.]
§ 4. On the Tuesday next preceding the annual town-meeting, in
Overseers
every year, and also on the Thursday next preceding the annual ¢f poor te
: . F their
meeting of the board of supervisors of such county in every year, books
Oo town

the overseers of the poor shall lay the said book before the board of 2uditors.
town auditors, together with a just and true account of all moneys
received and expended by them for the use of the poor since the
last preceding meeting of the said board of town auditors. The
said board of auditors shall compare said account with the entries
in the poor book aforesaid, and shall examine the vouchers in sup-
port thereof, and audit and settle the same, and state the balance
due from the overseers or to them, as the case may be. The said
account shall be filed with the town clerk; and at every annual
town-meeting, the town clerk shall produce such poor accounts for
the then preceding year, and read the same if required by the
meeting.

§ 5. The accounts of overseers of the poor for their services in Ia.; ac-

counts;

affording the relief and support mentioned in this act, shall be how |

 

*So in originai.

413
MANUAL TOWN AUDITORS. [STATUTES

audited, certified, levied, collected and paid in the manner now pro-
vided by law in respect to other town accounts.
Id.; state.  § 6. At the annual meeting of the board of town auditors on the

ment of

persons, Thursday preceding the annual meeting of the board of supervisors,

oe the said board of town auditors shall make a certificate to be signed

by a majority of the board, specifying the name, age, sex and native
country of every person who shall have been relievel or supported
by the overseers of the poor, during the then preceding year, and
stating the causes, either direct or indirect, which shall have operated
to render such person a pauper, and the amount of money expended
for the use of each and every person so relieved or supported as
allowed by the board of auditors; together with the amount allowed
to each overseer for services rendered in relation to the temporary
relief of the poor as aforesaid; which certificate the said board of
auditors shall cause to be delivered to the superintendents of the
poor of such county, or one of them, on or before the first day of
December then next.

Estimate § 7. The board of town auditors shall also at their annual meeting

b ‘ : F

thade of mentioned in the last preceding section, make an estimate, to be
fornest’ signed by a majority of the board, of the sum which they shall deem
at) necessary for the temporary relief and support of the poor the en-

suing year, and to supply any deficiency in the preceding year, and
shall cause the said estimate to be laid before the board of super-
visors of such county, on the first day of their then next annual
meeting. The board of supervisors shall cause the said sum to be
levied and collected in the town where the same was estimated to be
necessary as aforesaid, in the manner now provided by law in respect
to other town charges, and to be paid to the overseers of the poor of
such town. .

[L. 1845, ch. 384, §§ 4-7 (4 Edm., 8). The act of 1845 is confined to Livingston
county, and to such counties as under L. 1846, ch. 245 (4 Edm ,9), adopt it. Where
the are is not applicable, the following provisions of the R. 8., $$ 52-53, prob-
ably are.

Overseers  § 02- On the Tuesday next preceding the annual town-meeting
Present © ot every town, the overseers of the poor shall lay the said original
eir

books books before the board of town auditors, together with a just and
0 town

auditors. true account of all moneys by them received and expended for the

use of the poor, and in what manner, together with an account of
414
UNREPEALED. | TOWN AUDITORS.

the earnings of the poor persons by them employed; which account
shall be verified by the oaths of the overseers, and shall be filed with
the town clerk. The board of town auditors shall compare the said
account with the entries in the poor books aforesaid; shall examine
the vouchers in support thereof, and shall audit and settle the same,
and state the balance due from such overseers, or to them, as the
case may be. No credit shall be allowed to any overseer for moneys
paid, unless it shall appear that such payment was made pursuant to
a legal order.

§ 53. Every person who, having been an overseer of the poor,
shall refuse or neglect to present such original books, or to exhibit
such accourts, to the board of town auditors, as required in the last
section, shall forfeit the sum of two hundred and fifty dollars, to be
recovered by and in the name of the overseers of the poor of such
town.

[1 R. 8., 627, §§ 52 and 53 (1 Edm., 579). See preceding note.]

Cuap. 197.

AN ACT to amend the several acts relating to taxes upon
dogs, so far as relates to the county of Ontario, and pro-
viding for the extension of the provisions thereof to the
several counties of the State, by resolution of the respect-
ive boards of supervisors.

PassED April 15, 1864; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

§ 1. The taxes hereafter to be levied upon dogs, in the
county of Ontario, shall be levied and collected at the time and in
the manner directed by sections one and two of chapter two hundred
and forty-four, of the laws of eighteen hundred and sixty-two.*

 

eine plone here referred to were amendatory of the Revised Statutes, and read
as follows:

§ 1. Section first, title seventeen, chapter twenty, Part first of the Revised Stat-
utes, is hereby amended so as to read as follows:

In all the counties of the State, except the city and county of New-York, there shall
be annually levied and collected the following tax upon dogs: upon every bitch owned

415

PART IIt.

Id.;

enalty
or neg-

lect.

Dog
tax in
Ontario.
JUSTIOE’S
MANUAL,

Duty of
collector.

Duties and
owers of
ence

viewers.

Duties
of town
auditors.

TOWN AUDITORS. [STATUTES

§ 2. The collector of each town shall pay over the taxes so col-
lected to the supervisor of the town, and the money so collected and
paid over shall in each town constitute a town fund for paying the
damages arising in said town, from dogs killing or injuring sheep ;
and such moneys, or the balance thereof, which shall remain in the
hands of the supervisor of any town for the period of one year, may,
by a vote of the majority of the electors of any such town at any
town-meeting, be appropriated for the purpose of building and
repairing roads and bridges, or for the payment of the contingent
expenses of such town.

§ 8. The owner or owners of any sheep or lambs that may be
killed or injured by dogs, may apply to any two fence viewers of
the town, who shall inquire into the matter and examine witnesses
‘in relation thereto, for which purpose either of them shall have power
to administer oaths, and if they shall be satisfied that the same were
killed by dogs, and in no other way, they shall certify such fact,
the number of such sheep killed and the number injured, the
value of such sheep killed or injured immediately previous to such
killing or injury, together with the value of the sheep after being so
killed or injured, together with the amount of their fees.

§ 4. Such certificate shall be presented to the board of town audit-
ors at their annual meeting for auditing town accounts, who shall
have the same power in auditing or allowing the same as in regard
to town accounts, and if such board shall be satisfied by the oath of
the person claiming such damages that such claimant has not been
able to discover the owner or possessor of the dog or dogs by which
such damage was done or that he has failed to recover his damages
of such owner or possessor, they shall give an order on the super-
visor of the town for the amount which they shall allow, who shall

 

or harbored by any one or more persons or by any family, three dollars; upon every
additional bitch owned or harbored by the. same person or persons or family, five dol-
jars; upon every dog other than a bitch owned or harbored by one or more persons or
by any family, fifty cents, and upon every additional dog other than a bitch owned or
harbored by the same person or persons or families, two dollars.

i Section four of said title, chapter and Part, is hereby amended so as to read as
ollows:

The assessors of every town or city, or ward of acity, except the city of New-York,
shall annex to the assessment roll of real and personal estate therein made by them annu-
ally the name of each and every person or persons liable tothe tax imposed hereby,
together with the number of bitches and dogs for which such person or persons is or are
assessed, and return the same to the supervisor of their respective towns, citiesor wards
of cities, to be laid by said supervisor before the board of supervisors, to be by them col-
lected in the same manner as other State and county and town taxes are collected. Aud
if any person duly assessed shall refuse or neglect to pay the tax so assessed within five
days OL ihe demand thereof, it shall be lawful forany person and it shall be the duty of
the collector to kill the dog so taxed.]

416
UNREPEALED. | TOWN AUDITORS.

pay such order out of the funds arising from the provisions of this
act.

§ 5. If, after receiving the amount of such damages from the
supervisor, the owner of the sheep so killed or hurt shall receive or
recover the value thereof, from the owner or possessor of the dog or
dogs doing said damage, he shall refund and repay to the supervisor
the sum’ so recovered, for which it shall be the duty of the supervisor
of the town to bring an action against such person, in case of his
refusal, in his name of office; which sum when so received and
recovered shall be returned to said dog fund.

§ 6. The supervisor is hereby required to account to the town
auditors for moneys received and disbursed by him in pursuance of
this act.

§ 7. Whenever the board of supervisors of any county of this
State shall, by resolution, declare that the provisions of this act shall
be extended and made applicable to said county, the provisions of
this act shall thereafter be applicable to such county.

§ 8. This act shall take effect immediately.

[6 Edm. 241.]

Cuap. 442.

AN ACT to amend the act entitled “An act to provide for
the speedy construction and repair of roads and bridges
where the same shall have been damaged or destroyed,”
passed April sixth, eighteen hundred and fifty-eight.

PassED April 14, 1865; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Sxction 1. Section one of the act entitled “An act to provide for
the speedy construction and repair of roads and bridges where the
same shall have been damaged or destroyed,” passed April sixth,
eighteen hundred and fifty-eight, is hereby amended so as to read as
follows:

[53] 417

PART III.

In what
cases
owner
shall
refund.

Audit of
accounts.

Act ex-
tended
to other
counties.
MANUALS TOWN AUDITORS. [sTaTUTES

Bebulla- § 1. In case any road or roads, bridge or bridges shall be damaged
bridges. op destroyed by the elements or otherwise after any town-meeting
shall have been held, and since the fifteenth day of February, A. D.
eighteen hundred and sixty-five, then and in that case it shall be law-
ful for the commissioner or commissioners of highways, by and with
the consent of the board of town auditors, or a majority thereof, of
the town or towns in which such road or roads, bridge or bridges
shall be situated, to cause the same to be immediately repaired or
rebuilt, although the expenditure of money required may exceed the
sum now authorized to be raised by law upon the taxable property
Expense of the town or towns for such purposes, and the commissioners of
highways shall present the proper vouchers for the expense thereot
to the town auditors at their next annual meeting, and the said bill
shall be audited by them, and the amount audited thereon shall be
collected in the same manner as amounts voted at town-meetings as
now required. The commissioners acting under this act shall be
entitled to receive for each day’s service actually rendered two
dollars.
§ 2. This act shall take effect immediately.

[6 Edm., 485.]

Cuap. 537.

AN ACT requiring commissioners of towns, cities and vil-
lages, appointed under the several acts to facilitate the
construction of railroads in this State, to present bonds
and coupons paid by them before the boards of auditors
in towns, cities and villages, and providing for the can-
cellation and preservation of the same.

PassED April 17, 1871; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Commis- Szction 1. The commissioners appointed under and by virtue of
stoners to was . S . .
Bnei the several acts to facilitate the construction of railroads in this State,

coupons, and who have been duly authorized under said laws to issue bonds
ae paid,

to town : . ‘ :

auditors. of any town, city or village therein, are hereby required to present

before the board of auditors of their respective towns, cities or vil-
418
UNREPEALED. | TOWN AUDITORS. PART IIL
.

lages, whose duty it is, annually, to examine and audit the receipts

i i i ri - To render
and disbursements of either town, city or village officers at each an- To render |

. . * ais ipts
nual meeting of said boards of town auditors, or the auditing board ete.”

in any city or village, all such bonds and coupons thereof which have
‘been paid by them respectively during the year then ending; also to
render a written statement or report annually to said board showing
in items all their receipts and expenditures, with vouchers. It shall
be the further duty of said commissioners to loan on proper security
or collaterals, or deposit in some solvent bank or banking institution,
at the best rate of interest they may be able to obtain (not exceeding To loan

moneys}
seven per cent), all moneys that shall come into their hands by virtue {terest

thereon,
of their office, and not needed for current liabilities, and all interest credited.
or earning accruing from such loans or deposits shall be credited to
their respective towns, cities or villages, and accounted for in their
annual settlements with the said boards of auditors.
§ 2. It shall be the duty of the several boards of town auditors or cancella-

tion of
any auditing board in the cities or villages of this State, before whom bonds and

pons.
such bonds or coupons thereof may be presented, in pursuance of paar
section one of this act, to cancel the same, by cutting out a portion
of each bond or coupon so presented, in such manner as to effect-
ually prevent the repayment of the same.

§ 38. All bonds and coupons so presented and canceled shall be ta.; fling
deposited for safe-keeping and future reference in the office of the at
clerk of the county in which such towns, cities or villages are re-
spectively situated, and said boards of town auditors or auditing
boards in any city or village, shall prepare and sign a certificate,
showing a full description of all bonds or coupons so canceled and
deposited by them, and shall file said certificate in the office of the
clerk of their respective towns and villages, and in cities in the office
of the clerk of the city.

§ 4. This act shall take effect immediately.
[9 Edm., 96.]

§ 2. The following shall be deemed town charges: eee
1. The compensation of town officers for services rendered for eee

their respective towns ;
419
JUSTICE’S
MANUAL.

audited.

Accounts:
for serv-
ices, how
stated.

Id.

County
charges.

Id.; by

TOWN AND COUNTY CHARGES. [STATUTES

2. The contingent expenses necessarily incurred for the use and
benefit of the town;

3. The moneys authorized to be raised by the vote of a town-
meeting, for any town purpose; and,

4. Every sum directed by law to be raised for any town pur-
pose.

(12 N. ¥., 65; 7 W., 488.]

§ 38. Accounts for the compensation of town officers, and the con.
tingent expenses of towns, (except for moneys received and dis-
bursed which are to be settled by the board of town auditors,) shall
be presented to the board of supervisors of the county.

[1 R. S., 358, §§ 2and 3 (1 Edm., 331). Expenses which are incurred by the

health boards of towns are also town charges. L. 1868, ch. 761 (7 Edm., 334). See
also pages 380, 385, and 438, ante. ]

§ 1. All town and county officers, and all other persons who may
present to the board of supervisors, accounts for their services, to be
audited and allowed, shall, before any such account or claim shall be
passed upon or allowed, exhibit a just and true statement in writing
of the nature of the service performed by them.

§ 2. In all cases in which a specific compensation for any service
is not provided by law, the officer or person presenting an account
therefor, shall also exhibit in writing, a just and true statement of
the time actually and necessarily devoted to the performance of
such services.

§ 8. The following shall be deemed county charges:

9. The moneys necessarily expended by any county officer in exe-
cuting the duties of his office, in cases in which no specific compen-
sation for such service, is provided by law.

11. All charges and accounts for services rendered by any justice
of the peace, under the laws for the relief and settlement of the
poor of such county, and for their services in the examination of

felons, not otherwise provided for by law.
[1 R.S., 385, $8 1, 2,and 3 (1 Edm., 357). For town services justices are entitled

to $2a day; L. 1870, ch. 242, § 2 (7 Edm., 676), which was doubtless intended to
amend L. 1857, ch. 615, § 3 (8 Edm., 540).]

§ 4. Accounts for county charges of every description shall be
420
UNREPEALED. | JUSTICES AS COMMISSIONERS OF DEEDS. PART OI.

presented to the board of supervisors of the county, to be audited whom
: audited.
by them.

[Id., §4; 5 N. Y., 66; 23 B,, 887; 5 B., 609.]

§ 57. The accounts of overseers of the poor, and of justices of Poor
accounts ;

¢ 1 1 in When tobe
the peace, for any personal or official services rendered by them in SPAtd?by

relation tu the poor, shall be audited and settled by the board of eis

supervisors, and the sums thus audited and allowed, shall be paid by oe
the county treasurer; and if such services were rendered in behalf

of any town liable to support its own poor, the same shall be charged

to such town. No allowance for time or services shall be made to
any officer for attending any board with any accounts, for the pur-
pose of having the same audited or paid.

[1 R. S., 628, § 57 (1 Edm., 680). See the following statute. }

§ 1. The superintendents of the poor in the several counties in 1a; by
superin-

this State shall audit and settle all accounts of overseers of the poor, tensor
justices of the peace, and all other persons, for services relating to

the support, relief or transportation of county paupers; and shall,

from time to time, draw on the county treasurer for the amount of

the accounts which they shall so audit and settle.

[L. 1882, ch. 26,§ 1 (4 Edm, 4); 9 B., 267.]

Powers of commsssioners of deeds conferred on justices of the
peace.

Cuap. 238.

AN ACT to abolish the office of commissioner of deeds in
the several towns in this State, and to devolve their pow-
ers and duties on justices of the peace.

PassED May 7, 1840.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows:

Sxcrion 1. The office of commissioner of deeds is hereby abolished Office
abolished 5

in the several towns of this State ; and all the powers and duties of justice to

such commissioners shall hereafter be executed by the justices of “>
421
JUSTICE'S
MANUAL.

Powers of
cominis-
sioners of
deeds.

When
justices
may act
as coro-
ners.

JUSTICES AS CORONERS. [STATUTES

the peace in said towns respectively ; but the several commissioners
now in office may continue to execute the duties of said office till
the expiration of the term for which they were respectively ap-
pointed, and no longer.

[L. 1840, ch, 238, § 1 (3 Edm., 302). See ante, p. 220.]

§ 41. Commissioners of deeds appointed for any county or city,
have power,

1. To take the proof and acknowledgment of conveyances of real
estate, and the discharge of mortgages.

2. To take the acknowledgment of bail in any action in the
supreme court, and in the court of common pleas of the county for
which they are appointed, or in the mayor’s court of the city for
which they are appointed ; and in the city and county of New-York,
in any action in the superior court of law therein :

3. To take the acknowledgment of satisfaction of judgments, in
the court of common pleas of the county for which they are ap-
pointed, or in the mayor’s court of the city for which they are ap-
pointed, or in the supreme court; and to perform such other duties
as are or may be enjoined by law.

[2 R. S., 282, $41 (2 Edm., 293).]

Justices of the peace as coroners.
Cuap. 379.

AN ACT to authorize justices of the peace to perform the
duties of coroners in certain cases.

PasseED April 25, 1864; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows:

Srcrion 1. Any justice of the peace, in each of the several towns
and cities of this State, is hereby authorized and empowered, in case
the attendance of a coroner cannot be procured within twelve hours
after the discovery of a dead body, upon which an inquest is now
by law required to be held, to hold an inquest thereon in the same

manner and with the like force and effect as coroners.
422
UNREPEALED. | STRAYS. PART III.

§ 2. In all cases in which the cause of a death is not apparent, it Post

shall be the duty of the justice to associate with himself a regularly {ine "”

licensed physician, to make a suitable examination for the discovery
of said cause.
§ 3. Each and every justice of the peace who shall hold inquests Fees.
by virtue of this act, shall receive the same fees as are now allowed
by law to coroners.
§ 4. This act shall take effect immediately.
fe 1864, ch. 379 (6 Edm., 260). For laws fixing coroner’s fees, see L. 1878, ch.
838 ; 1874, ch. 5385 (9 Edm., 781, 967); L. 1878, ch. 286 ; as to Hrie Co., L. 1875, ch.

247; Rensselaer Co., L. 1876, ch. 898; Albany Co., L. 1878, ch. 837; Monroe Co.,
L. 1878, ch, 156.]

Proceedings relating to strays.

[See Code of Civil Procedure, chapter 19, title 10, pp. 97-118, ante.j

§ 17. Whenever any person shall at any time have any strayed weaeto

horse upon his inclosed land, or shall, between the first day of ered.
November in any year, and the first day of April thereafter, have

any strayed neat cattle or sheep upon his inclosed lands, such person

shall, within ten days after the coming of any such stray thereon,

deliver to the clerk of the town within which such lands shall be, a

note in writing, containing the name and place of abode of such
person, and the age, color and marks, natural and artificial, of each

stray, as near as may be.

§ 18. If any person upon whose inclosed lands any such neat $oB8%.,

cattle, horses or sheep, shall come, shall neglect to deliver such note sion
in writing, to the town clerk, within the time above required, he

shall be precluded from all the benefits of this article, and from all

claim to compensation for keeping such strays.

§ 19. The town clerk, on the receipt of every such note, shall 2uty %

enter the same at large in a book to be provided by him for that eres
purpose ; for which entry he shall receive six cents each for all
neat cattle and horses, and three cents for each sheep, to be paid by
the person delivering the note.

§ 20. The book in which such entries shall be made shall always
be kept open to inspection; and no fee shall be taken by the clerk

for any search therein.
423
JUSTICE'S
MANUAL.

Charges
of the
person
giving
such note.

Fees of
fence
viewers,

Proceed-
ings if
strays

are not re-
deemed.

Id.; sale
of strays.

Notice
of sale.

Money
arising
from sale ;
yw dis-
posed of.

STRAYS. [STATUTES

§ 21. The person delivering the note shall be entitled to receive
therefor nine cents each, for all neat cattle and horses, and three
cents for each sheep described in the note; and he may detain such
strays until the owner thereof shall appear and pay such fees, to-
gether with the fees paid or due to the clerk, and all reasonable
charges for keeping the strays; such charges being first ascertained
by two of the fence viewers of the town, to be selected by the per-
son claiming the same, in case he and the owner of the stray cannot
otherwise agree.

§ 22. Each fence viewer shall be entitled to receive six cents for
every inile he shall be obliged to travel, from his house to the plage
where such strays are kept, and twenty-five cents for a certificate of
the charges as ascertained by _ ; such fees to be paid by the
owner of the strays.

§ 23. Every person who shall deliver any such note, and keep any
stray described therein, shall, if the same be not sooner claimed
and redeemed, between the first day of May and the twentieth day
thereafter, give notice to one of the fence viewers of the town,
whose duty it shall be to ascertain, according to the best of his
knowledge and judgment, the reasonable charges of keeping such
stray, a certificate whereof shall be given by him to the person
applying for the same. The fence viewer shall be entitled to the
like fees as above provided, to be paid by the person applying for
the certificate.

§ 24. If no owner shall appear to claim such stray, on or before
the first day of May next after the making of such entry, or if the
owner shall refuse or neglect to pay the sums charged on such stray,
then the person who shall have delivered such note, and kept such
stray, may proceed to sell the same by public auction, to the highest
bidder.

§ 25. Such person shall give at least twenty days’ previous notice
of the time and place of such sale, by advertisement, to be posted
up at three of the most public places in the town where the strays
shall have been kept.

§ 26. Out of the moneys arising from such sale he shall retain for
his own use the sums charged on such strays for the aforesaid note

in writing, entry and certificate, together with the sum specified in
424
UNREPEALED. | DIVISION FENCES.

the certificate for keeping such strays, and the like charges for such
sale as are allowed on sales under executions issued out of justices’
courts. Ile shall pay the residue of said moneys, on demand, to the
owner of the strays, if he shall appear to demand the same.

§ 27. If the owner shall not appear and demand the residue of
such moneys, within one year after the sale, he shall be forever pre-
cluded from recovering any part of such moneys; and the aforesaid
residue shall be paid to the supervisor of such town, for the use of
the town; and his receipt shall be a legal discharge to the keeper
of such strays,

§ 28. If the person who shall have sold such strays, shall not,
within thirty days after the expiration of the year, pay such residuary
moneys to the supervisor of the town, he shall forfeit to the town
double the sum so remaining in his hands, together with the
amount of such residuary moneys.

§ 29. Each of the cities of this State shall be considered towns

for the purposes of this article.

{The preceding sections 17-29 are 1 R. 8., 351, 88 17-29 (1 Edm., 324), For
forms under this and the following provisions, see New Clerk’s Assistant, under
the head of ‘ fence viewers.”’]

Proceedings relating to the division of fences.

§ 30. Where two or more persons shall have lands adjoining, each
of them shall make and maintain a just and equal proportion of the
division fence between them in all cases where each of such adjoining
lands shall be cleared or improved. And where such adjoining lands
shall border upon any of the navigable lakes, streams, or rivers within
this State, it shall be and it is hereby made the duty of the owners
thereof, to maintain such division fence down to the line of low-water
mark in such lakes, streams and rivers.

And wherever such adjoining lands, one-half or more of which are
improved, shall be bounded by or upon either bank of a stream of
water not navigable, the fence viewers of the town, in which the same
are situated, shall direct in the manner hereinafter mentioned, upon
which bank of such stream, and where upon such bank, the division
fence shall be located, and the portion thereof to be kept and main-

tained by each of such adjoining owners.
[54] 425

PART III.

Cities as
towns.

Division
fences;
how main-
tained
between
improved
lands.

Id.; when
lands bor-
der upon
navigable
rivers, etc.

Id.; fence
viewers
to locate.
JUSTICE'S
MANUAL.

Id.; how
main-
tained in
other
cases.
When ad-
joining
owner to
refund.

Id.; on
transfer
of title.

Value of
propor-
tion; how
determ-
ined.

Disputes;
how set-
tled.

DIVISION FENCES. [STATUTES

[1 R. S., 853, 8 80 (1 Edm., 326) as supposed to be amended by L. 1860, ch. 267;
L. 1866, ch. 540; L. 1871, ch. 635, and L. 1872, ch. 377 (9 Edm., 106 and 362).
The act of 1872 added the last sentence. See 22 B.,579; 18 B., 400; 11 B., 412;
9 How. Pr., 455; 17 W., 820; 35 B., 16; 41 B., 159; 44 B., 136; 59 N. Y., 28; 67
N. Y.. 427; 2 Sandf., 801. While the foregoing and following sections do not re-
late to justices of the peace, still as justices frequently refer to them, they are
inserted for their convenience. See preceding note. ]

§ 31. Where two or more persons shall have lands adjoining, and
not within the provisions of section thirty, as hereby amended, each
of them shall make and maintain a just and equal proportion of the
division fence between them, except the owner or owners of either of
the adjoining lands shall choose to let such lands lie open. If he shall af-
terwards inclose it, he shall refund to the owner of the adjoining Jand
a just proportion of the value, at that time, of any division fence that
shall have been made and maintained by such adjoining owner, or he
shall build his proportion of such division fence.

§ 32. Where a person shall have cleared or improved lands lying
open, he shall refund to the owner of adjoining land which is also
cleared or improved, a just proportion of the value, at the time this
act shall take effect, of any division fence that shall have been made
and maintained by such adjoining owner between such cleared or
improved lands, or he shall build his proportion of such division
fence. Whenever a subdivision or new apportionment of any di-
vision fence shall become necessary by reason of the transfer of the
title of either of the adjoining owners to the whole or any portion
of the adjoining lands by conveyance, devise, or descent, such sub-
division or new apportionment. shall thereupon be made by the ad-
joining owners affected thereby; and either adjoining owner shall
refund to the other a just proportion of the value, at the time of such
transfer of title, of any division fence that shall theretofore have been
made and maintained by such other adjoining owner, or the person
from whom he derived his title, or he shall build his proportion of

‘such division fence. The value of any fence, and the proportion
thereof to be paid by any person, and the proportion to be built by
him, shall be determined by any two of the fence viewers of the town.

§ 33. If dispute arises between the owners of adjoining lands,
concerning the proportion or particular part of fence to be main-
tained or made by either of them, such dispute shall be settled by
any two of the fence viewers of the town.

[9 J. R., 186, 45. R., 414; 25 N. ¥., 286; 35 B., 16.]
426
UNREPEALED. | DIVISION FENCES.

§ 34. When any of the above mentioned matters shall be sub-
mitted to fence viewers, each party shall choose one; and if either
neglect, after eight days’ notice, to make such choice, the other party
may select both.

§ 35. The fence viewers shall examine the premises, and hear the
allegations of the parties. In case of their disagreement, they shall
select another fence viewer to act with them, and the decision of any
two shall be final upon the parties to such dispute, and upon all
parties holding under them.

§ 36. The decision of the fence viewers shall be reduced to writ-
ing, shall contain a description of the fence, and of the proportion
to be imaintained by each, and shall be forthwith filed in the office
of the town clerk.

§ 37. If any person who is liable to contribute to the erection or
reparation of a division fence, shall neglect or refuse to make and
maintain his proportion of such fence, or shall permit the same to
be out of repair, he shall be liable to pay to the party injured, all
such damages as shall accrue thereby, to be ascertained and appraised
by any two fence viewers of the town, and to be recovered, with
costs of suit. The appraisement shall be reduced to writing, and
signed by the fence viewers making it.

[18 W., 213: 11 W., 46; 3H, 38]

§ 88. If such neglect or refusal shall be continued for the period
of one month, after request in writing to make or repair such fence,
the party injured may make or repair the same, at the expense of
the party so neglecting or refusing, to be recovered from him, with
costs of suit.

[44 B, 16.]

§ 39. If any person who shall have made his proportion of a division
fence shall be disposed to remove his fence and suffer his lands to
lie open, he may do so, provided such lands are not cleared or im-
proved, at any time between the first day of November in any one
year and the first day of April following, but at no other time, giv-
ing ten days’ notice to the owner or occupant of the adjoining land
of his intention to apply to the tence viewers of the town for permis-
sion to remove his fence; and if, at the time specified in such notice,

427

PART IKI.

Id.

Proceed-
ings of
fence
viewers.

Id.; de-
cision
thereon.

Neglect te
make or

repair
fe

ence.

How
fences
may be
removed,
and lands
lie open.
JUSTICE’S
MANUAL.

Id.

Fence de-
stroyed by
accident
to be
repaired.

Id.

Powers
of fence
viewers.

Penalty
for neg-
lecting to
keep a
sufficient
fence.

DIVISION FENCES. [STATUTES

any two of such fence viewers, to be selected as aforesaid, shall
determine that such fence may, with propriety, be removed, he may
remove the same.

[8 W., 142; 11 Wend., 46.]

§ 40. If any such fence shall be removed without such notice and
permission, the party removing the same shall pay to the party in-
jured, all such damages as he may sustain thereby, to be recovered,
with costs of suit.

§ 41. Whenever a division fence shall be injured or destroyed by
floods, or other casualty, the person bound to make and repair such
fence, or any part thereof, shall make or repair the same, or his just
proportion thereof, within ten days after he shall be thereunto
required by any person interested therein. Such requisition shall
be in writing, and signed by the party making it.

§ 42. If such person shall refuse or neglect to make or repair his
proportion of such fence, for the space of ten days after such request,
the party injured may make or repair the same, at the expense of
the party so refusing or neglecting, to be recovered from him, with
costs of suit.

§ 48. Witnesses may be examined by the fence viewers on all
questions submitted to them ; and either of such fence viewers shall
have power to issue subpcenas for, and to administer oaths to said
witnesses; and each fence viewer and witness thus employed shall
be entitled to one dollar and fifty cents per diem; such fence view-
ers, or a majority of them, shall determine what proportion thereof
shall be paid by each of the parties interested in such division fence,
and reduce their determination to writing, and subscribe the same,
and file it in the office of the town clerk where such fence viewers
shall reside; the party refusing or neglecting to pay such fence
viewers, or either of them, shall be liable to be sued for the same,
with costs of suit.

§ 44. Whenever the electors of any town shall have made any
rule or regulation, prescribing what shall be deemed a sufficient
fence in such town, any person who shall thereafter neglect to keep
a fence according to such rule or regulation, shall be precluded from
recovering compensation in any manner, for damages done by any

428
UNREPEALED. ] DIVISION FENCES.

beast lawfully going at large on the highways, that may enter on
any lands of such person, not fenced in conformity to the said rule
or regulation, or for entering through any defective fence.

[7 B., 306 ; 4B.,56; 5 D., 255.]

§ 45. When the sufficiency of a fence shall come in question in
any suit, it shall be presumed to have been suflicient, until the con-
trary be established.

[Id., S$ 81-45, as amended by the acts cited in the previous note, and L. 1850,
ch. 319. Section 44 is doubtless superseded by S$ 3082-3084, pages 99 and 100,
ante, as a fence is not now required along a highway, Jones v. Sheldon, 50 N. Y.,
479. But see 25 Barb., 11. Section 37 of the R. S. was doubtless intended to be
amended by the following act, L. 1838, ch. 261 (8 Edm., 300). The fence view-
ers are the town assessors and commissioners of highways. 1R.S§., 340,§4(1
Edm., 313),]

CuHap, 261.

AN ACT to amend article fourth, chapter eleventh, title
fourth and part first of the Revised Statutes relative to
division fences.

Passep April 18, 1888.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Sxzction 1. If any person, liable to contribute to the erection or
reparation of a division fence, shall neglect or refuse to make and
maintain his proportion of such fence, or shall permit the same to be
out of repair, he shall not be allowed to have and maintain any action
for damages incurred, but shall be liable to pay to the party injured
all such damages as shall accrue to his lands, and the crops, fruit trees
and shrubbery thereon, and fixtures connected with the said land, to
be ascertained and appraised by any two fence viewers of the town,
and to be recovered with costs of suit; which appraisement shall be
reduced to writing, and signed by the fence viewers making the
same, but shall be only prima facie evidence of the amount of such
damages.

[See preceding note; 18 N. Y., 210; 5 D., 260; 4D, 101; 3H, 40.]
429

PART III.

Sufficiency
presumed.

Damages
for omit-
ting to
build.
JUSTICE'S
MANUAL,

Com-
laints,
ow made,

Proceed-
ings.

Id.

Td.

Penalties
to be set
off.

HIGHWAYS. [STATUTES

Proceedings upon the non-paymen of highway tax.

§ 41. It shall be the duty of every overseer of highways, within
six days after any person so assessed and notified, shall be guilty of
any refusal or neglect for which a penalty or fine is prescribed in
this title, unless a satisfactory excuse shall be rendered to him for
such refusal or neglect, to make complaint on oath to one of the jus-
tices of the peace of the town.

[5 D., 102; 15. R., 515; 105. B., 470.]

§ 42. The justice, to whom such complaint shall be made, shall
forthwith issue a summons directed to any constable of the town,
requiring him to summon such delinquent to appear forthwith before
such justice, at some place to be specified in the summons, to show
cause why he should not be fined according to law for such refusal
or neglect ; which summons shall be served personally, or by leaving
a copy at his personal abode.

[3 J. B., 474; 9 J. B., 229.)

§ 48. If, upon the return of such summons, no sufficient cause
shall be shown to the contrary, the justice shall impose such fine as
is provided in this title for the offence complained of, and shall forth-
with issue a warrant under his hand and seal, directed to any con-

stable of the town where such delinquent shall reside, commanding
him to levy such fine, with the costs of the proceedings, of the goods

and chattels of such delinquent.

§ 44. The constable, to whom such warrant shall be directed, shall
forthwith collect the moneys therein mentioned. Te shall pay the
fine when collected, to the justice who issued the warrant, who is
hereby required to pay the same to the overseer who entered the
complaint, to be by him expended in improving the roads and bridges
in the district of which he is overseer.

§ 45. Every penalty collected for a refusal or neglect to appear
and work on the highways shall be set off against the assessment
upon which it was founded, estimating all moneys collected as a
satisfaction at the rate of twelve and a half cents an hour for each
day.

[The preceding sections 4145 are1 R.8., 510, $$ 41-45 (1 Edm., 469), as § 45
is amended by L. 1880, ch. 308.]

430
UNREPEALED. | HIGHWAYS.

Proceedings to recover penalty for obstructing highways.

§ 102. Whoever shall obstruct any highway, or shall fill up or
place any obstruction in any ditch constructed for draining the
water from any highway, shall forfeit for every such offence the
sum of five dollars.

[27 B., 211; 23 W., 451; 9 J. R., 349, 365; 34.N. Y., 452; 37 B., 53.]

§ 103. In every case where a highway shall have been laid out or
ascertained, described and entered of record in the town clerk’s of-
fice, and the same has been or shall be encroached upon by fences
erected by any occupant of the land through or by which such high-
way runs, the commissioners of highways of the town shall, if in
their opinion it be deemed necessary, order such fences to be re-
moved, so that such highway may be of the breadth originally in-
tended. The commissioners making the order shall cause the same
to be reduced to writing and signed. They shall also give notice in
writing to the occupant of the land to remove fences within sixty
days. Every such order and notice shall specify the breadth of the
road originally intended, the extent of the encroachment and the
place or places in which the same shall be.

(27 B., 211; 6 W., 684; 2H., 473; 14 W., 255; 3 W., 871; 2 Cow., 424; 9 J,
R., 359; 7 W., 300; 31 N. Y., 59; 37 B., 303.]

§ 104. If such removal shall not be made, within sixty days after
the service of such notice, the occupant to whom the notice shall be
given, shall forfeit the sum of fifty cents for every day, after the ex-
piration of that time, for which such fences shall continue unre-
moved, and the commissioners of highways may remove or cause to
be removed such encroachment, and the occupant of the premises
shall pay to the commissioners of highways all reasonable charges
therefor to be collected in the manner provided in the forty-fifth
section of said title.

[Laws of 1840, ch. 300.]

§ 105. Ifthe occupant to whom notice is given, shall within five
days deny such encroachment, the commissioners, or some one of
them, shall apply to any justice of the peace of the county, for a
precept directed to any constable of the town, to summon twelve

431

PART TL

Penalty
for ob-
structing.

Removal
of en-
croaching
fences;
order and
notice
therefor.

Penalty.

Proceed-
ings on
denial of
encroach-
ment.
‘ JUSTICE'S
MANUAL,

Jury, etc,
to be
sworn, etc.

Verdict,
how en-
forced.

Id.

HIGHWAYS. [STATUTES

freeholders thereof, to meet at a certain day and place, to be specified
in such precept, and not less than four days after the issuing thereof,
to inquire into the premises. The constable to whom such precept
shall be directed shall give at least three days’ notice to the commis-
sioners of highways of the town, and to the occupant of the land, of
the time and place at which such freeholders are to meet.

[Laws of 1840, ch. 300; 3 W., 468; 13 J. R., 460.]

§ 106. On the day specified in the precept, the jury so summoned,
shall be sworn by such justice, well and truly to inquire whether
any such encroachment has been made, and by whom. Such wit-
nesses as may be produced by either party, shall also be sworn by
such justice; and the jury shall hear the proofs and allegations
which may be produced and submitted.

[3 W., 471.]

§ 107. If the jury find that any encroachment has been made,
they shall make and subscribe a certificate in writing, stating the
particulars of such encroachment, and by whom made; which shall
be filed in the office of the town clerk. The occupant of the land,
whether such encroachment shall have been made by him, or by
any former occupant, shall remove his fences within sixty days after
the filing of such certificate, under the penalty provided in the one
hundred and fourth section of this title. He shall also pay the costs
of such inquiry ; and if the same shall not be paid within ten days,
the justice shall issue a warrant for the collection thereof, in the
manner provided in the forty-third section of this title.

[86 B., 493 ; 26 B., 592; 19 B., 587; 12 B., 510; 22 W., 185; 7 W., 300.]

§ 108. If the jury find that no encroachment has been made, they
shall so certify, and shall also ascertain and certify the damages
which the then occupant shall have sustained by such proceeding ;
which, together with the costs thereof, shall be paid by the commis-
sioners, and shall be a charge in their favor against the town by
which they shall have been elected.

The preceding sections 102-108 are 1 R.S., 521, Sy 102-108 (1 Edm., 481) and L.
1840, ch. 300, as amended, as to § 108, by L. 1870, ch. 125 (7 Edm., 660). See the
following act of 1862.)

432
UNREPEALED. | HIGHWAYS.

Cuap. 2438.

‘AN ACT makmg further provisions relative to encroach-
ments upon highways.

PasseD April 15, 1862 ; three-fifths being present.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Secrion 1. Upon the hearing before a jury, as provided in sec-
tion one hundred and six of article fifth, title first, chapter six-
teenth and part first of the Revised Statutes, the justice who has
issued the precept to such a party shall preside at the trial, in the
same manner as upon the trial of an issue joined in a civil action
commenced before him, six of the jurors summoned shall be drawn
and empanelled in the same manner as upon trial by jury in civil
action before him, and he shall have the power and it shall be
his duty to decide as to the competency of jurors, the competency
and admissibility of evidence, and all other questions which may
arise before him, in the same manner and with the like effect as
upon a jury trial in civil actions before him; and such justice shall
adjust and determine the costs of such inquiry, and in case the jury
shall find an encroachment, he shall render and docket a judgment
to that effect, and for such costs against the person or persons who
shall have denied such encroachment; in case the jury find no en-
croachment, he shall render and docket a judgment to that effect
against. the commissioner or commissioners prosecuting the pro-
ceedings, and also for such costs, together with the damages, if any,
which may have been fixed by the jury, and payment thereof shall
be enforced by such justice, as in other cases of judgments rendered
by him.

§ 2. The person or party against whom such judgment shall be
rendered, may, within sixty days after filing the certificate of the
jury, appeal from the finding and judgment to the county court of
the same county; such appeal shall be made by the service, within
twenty days after the docketing of said judgment, of notice of ap-

peal upon the justice and upon the successful party or parties, or
[55] 433

PART INT.

Proceed-
ings upon
hearing
before
jury.

Judgment.

Appeal.
MANUALS HIGHWAYS. [STATUTES

one of them, stating the grounds of such appeal. It shall be the
duty of such justice, in his return to such appeal, to embrace copies
of all the papers made and served in the proceeding prior to issuing
the precept for such jury, and all the evidence and proceedings
before him, together with the finding of the jury and judgment
entered thereon. All the provisions of title eleven, chapters third
and fifth of the Code of Procedure are hereby extended to such
appeals, so far as the same are applicable thereto.(*)
Tae pr § 3. In case the decision of the jury finding an encroachment
thereon. shall be affirmed by the appellate court, such court, in addition to
the costs now allowed by law, may in its discretion order judgment
against the appellant for the penalties provided by section one hun-
dred and four of article one, title one, chapter sixteen, part first of
the Revised Statutes aforesaid, for such period as shall intervene
between the time fixed for the removal of fences, as provided by
section one hundred and seven of the said article, title and chapter,
and the decision of such appeal ; and in case of the continued neg-
lect or refusal of the occupant, after judgment, to make such re-
Penalties moval, the court rendering judgment may, by order from time to
ment: time, enforce the additional penalties incurred, or may provide for
the removal of such fences at the expense of the occupant, payment
of such expense to be enforced by order. Such applications to be
made according to the usual practice of the court.(’)
Applica: § 4. This act shall apply to all proceedings now pending In re-
lation to encroachments upon highways, where a hearing has not
already taken place, and all acts or parts of acts inconsistent with
this act are hereby repealed, so far as proceedings had or continued

under this act are concerned.
[3 Edm., 546.]

Proceedings to remove gates on highways.

Singing § 113. No swinging or other gates shall be allowed on any public
highway, laid out by virtue of this title, or which has heretofore
been laid out, other than such public highways as run through lands

434

 

(a) The appeal to the vounty court will not be regulated by © 3044-30738, ante, pages 80-
93; but the appeal to the supreme court will bo alee by §§ 1340-1845 and 1357, of the
Code of Civil Procedure. See§ 3, subd. 13 of L. 1880, ch. 245, post, page 514,

an

(b) Sections 104 and 107 of the R. 8., referred to are on pages 431 432, ante.
UNREPEALED. | HIGHWAYS.

liable to be overflowed by the waters of the adjacent rivers or
streams, in such manner as to remove the fences thereon.

§ 114. Such gates shall be erected and kept in good repair, by the
overseers of highways of the town, at the proper costs and charges
of the occupant of the land, for whose benefit the same shall be
erected.

§ 115. If more than one gate shall be erected, and the intermediate
land between the gates, at the extremities of such lands, shall be in
the occupation of more than one person benefited by such gates,
the whole charge of erecting and keeping the same in repair, shall
be borne by all the occupants benefited thereby, in proportion to
the extent of land each occupies adjoining the highway, between the
gates at the extremities aforesaid.

§ 116. The overseer of every road district in which such gates
shall be, shall, on or before the first day of November in every year,
make out and file with the town clerk, a statement of the charges
incurred in the erection or repairing of such gates, with the name of
the person bound to defray the same; which account shall be veri-
fied by the oath of such overseer. If more than one person is liable
to defray such charges, the statement shall also contain an apportion-
ment thereof between such persons, stating the amount to be paid
by each.

§ 117. The overseer shall, within ten days after filing the state-
ment, demand of every person bound to pay such charges, or to con-
tribute thereto, the sum due from him, according to such statement ;
and if any person shall refuse or neglect to pay such moneys within
six days after demand, it shall be the duty of the overseer to make
complaint to a justice of the peace of the town, and the like pro-
ceedings shall be had for the recovery of such moneys, as in the
recovery of fines, for refusing or neglecting to work on the highways.

[Preceding sections 113-117 are 1 R. S8., 523, $$ 118-117 (1 Edm., 483). |

Proceedings to assess highway damages.
§ 5. Whenever any damages are now allowed to be assessed by
law, when any road or highway shall be laid out, altered or discon-

tinued, in whole or in part, such damages shall be assessed by not
435

PART III.

How
erected
and pre-
served.

Expense.

Proceed-
ings to
collect.

Td.

Damages
upon lay-
ing out
roads ;
how as-
sessed.
‘ JUSTICE'S
MANUAL.

Assegs-
ment to be
filed.

Agerieved

persons ;
roceed-
ngs by.

HIGHWAYS. [STATUTES

less than three commissioners, to be appointed by the county court
of the county in which such road shall be, on the application of the
commissioner or commissioners of highways of the town ; or in case
the said commissioners of highways should neglect or refuse to make
such application for the space of thirty days after having been re-
quested so to do, it shall be lawful for the said county court to ap-
point such commissioners on the application of any of the owners of
the land through which such road shall have been laid out; and the
commissioners so appointed shall take the oath of office prescribed
by the constitution, and shall proceed, on receiving at least six days’
notice of the time and place, to meet the commissioners of highways,

and to take a view of the premises, hear the parties and such wit-

nesses as may be offered before them; and they shall all meet and
act, and shall assess all damages which may be required to be assessed
for the said highway, and shall be authorized to administer oaths
to witnesses who may be produced before them under this section ;
and when they shall all have met and acted, the assessment agreed
to by a majority of them shall be valid; and when such assessment
shall be so made, it shall be delivered to one of the commissioners
of highways of the town, who, within ten days after receiving the
same, shall file it in the town clerk’s office in the said town.

[L. 1845, ch. 180, § 5, as amended by L. 1847, ch. 455, § 2, further amended by
ae) 315 (9 Edm., 850). See the following sections, and 46 Barb., 317; 42

§ 8. Any person conceiving himself aggrieved, ur the commis-
sioner or commissioners on the part of the town feeling dissatisfied
by any such assessment, may, within twenty days after the filing
thereof as aforesaid, signify the same by notice in writing, and serv-
ing the same on the town clerk and on the opposite party, that is,
the persons for whom the assessments were made or the commis-
sioner or commissioners of highways as the case may be, «sking for
a jury to re-assess the damages and specifying a time not less than
ten nor more than twenty days from the time of filing said assess-
ment, when such jury will be drawn at the clerk’s oftice of in adjoin-
ing town of the same county by the town clerk thereof; which notice
shall be served upon said opposite party within three days after ser-
vice upon the town clerk as aforesaid, and may be served personally

or by being left at the dwelling house of the party with some person
436
UNREPEALED. | HIGHWAYS.

in charge thereof, or if there be no such person, or the house be
closed, then by fixing the same upon the outer door of said dwelling
house. .

§ 4. At the time and place mentioned in the preceding section,
the town clerk of such adjoining town, having received three days’
previous notice that such jury is to be drawn, from the person or
party asking a re-assessment, shall deposit in a box the names of all
such persons then residents of his town, whose names are on the
last list filed in said town clerk’s office of those selected and returned
as jurors, pursuant to article second, title four, chapter seventh,
part third of the Revised Statutes,* who are not interested in the
lands through which such road shall be located, nor of kin to either
or any of the parties, and shall draw therefrom the names of twelve
persons, and shall make a certificate of such names and the purposes
for which they were drawn, and shall deliver the same to the party
first asking for the re-assessment.

§ 5. The party receiving such certificate shall, within twenty-four
hours thereafter, deliver the same to a justice of the peace of the
town wherein the damages are to be assessed; and it shall be the
duty of such justice forthwith to issuea summons to one of the con-
stables of his town, directing him to summon the persons named in
said certificate, and shall specify a time and place in said summons
at which the persons to"be summoned shall meet, but no meeting of
such persons shall be had within twenty days from the. time of filing
the assessment of damages in the town clerk’s office by the commis-
sioner or commissioners of highways.

[42 B., 263.]

§ 6. Upon such persons appearing at the time and place mentioned
in the summons, the justice who issued the summons shall draw by
lot six of the persons attending to serve as a jury, and the first six
persons drawn who shall be free from all legal exceptions, shall be
the jury to re-assess all the damages required to be re-assessed upon
the same highway ; and the said jury shall be sworn by the said jus-
tice well and truly to determine and re-assess such damages as shall

 

* The list, now, will be the one filled pursuant to § 1087 of the Code of Civil Procedure.
See L. 1880, ch. 245, § 3, subd. 13, post, page 614.
437

PART III.

Id.; jury
how

drawn.

Id ; jury
how sum.
moned.

Id.; jury
to assess
damages.
JUSTICE'S
MANUAL

Costs by
whom to
be paid.

Private
road;
damages
and costs,
by whom
to be paid

HIGHWAYS. [STATUTES

be submitted to their consideration, and shall take a view of the
premises, hear the parties and such witnesses as may be offered by
the parties, and sworn by said justice before them and shall render
their verdict in writing under their hands, which shall be certified
by said jystice and be delivered to the commissioners of highways
of the town, and the same shall be final.

[42 B., 263.]

§ 7. In all cases of assessments of damages under the provisions
of this act by commissioners appointed by a county court, the costs
thereof shall be paid by the town in which the damages shall be
assessed, and in cases of re-assessments of damages by a jury on the
application of the commissioners of highways of any town, and the
first assessment shall be reduced thereby, the costs of such assess-
ment shall be paid by the party claiming the damages, otherwise by
the town; and in case a re-assessment of damages shall be had on
the application of the party for whom the damages were assessed,
and such party shall fail to increase the same, he shall pay the costs
thereof, but when such damages shall be increased by the jury the
costs shall be paid by the town; and when applications shall be made
by two or more persons for the re-assessment of damages by a jury,
such jury shall be obtained in conformity with the terms of the
notice first served upon the clerk of the town in which the damages
are to be assessed; and all persons who may be liable for costs under
this section shall be liable in proportion to the amount of damages
respectively assessed to them by the first assessment, and may be
recovered in an action of assumpsit at the suit of any person or per-
sons entitled to the same before a justice of the peace.

'§ 11. All damages which may be assessed for laying out or alter-
ing any private road, together with the costs of such assessment,
shall be paid by the person or persons applying for such road.

{L. 1847, ch. 455, §§ 3-7 and 11(3 Edm., 312, 315). Sections 3 and 4 above
doubtless superseded §§ 6 and 7 of the act of 1845, ch. 180 (8 Edm., 305).]

438
UNREPEALED. |! HIGHWAYS.

Cuap. 491.

AN CT to provide for the assessment of damages upon
the laying out of public highways through uninclosed,
unimproved and uncultivated lands.

PassED April 15, 1857.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Section 1. When a highway shall hereafter be laid out through
uninclosed, unimproved and uncultivated lands, the damages shall
be assessed in the same manner as if the same were laid out through
inclosed, improved and cultivated lands.

§ 2. All acts or parts of acts inconsistent with this act are hereby
repealed. .

[L. 1857, ch. 491, as amended by L. 1858, ch. 51 (8 Edm., 539).]

Cuap. 465.

AN ACT to amend the Revised Statutes in relation to the
laying out of public roads and the alteration thereof.

PassED June 16, 1877; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Sxction 1. Section sixty of article four of title one of chapter six-
teen of the first part of the Revised Statutes is further amended so
that said section shall read as follows :

§ 60. In all cases of the alteration of any road, or the laying out
of any new road, except where the same is altered, opened or laid
out with the consent in writing of the owner or owners of the land

to be taken for such alteration or opening, the person or persons i

applying for the same shall serve a notice on the town clerk of the
town, and on a justice of the peace and the commissioner or commis-
sioners of highways thereof, asking for a jury to certify to the neces-
sity of the same, and specifying a time not less than ten nor more

than twenty days from the time of serving such notice when such
439

PART III.

Assess-
ment of
damages.

Proceed-
ings to
alter or
lay out
road,
owner not
consent-
ng.
JUSTICE’S
MANUAL,

Jury how
drawn.

Non-resi-
dent
owner.

HIGHWAYS. [STATUTES

jury will be drawn at the clerk’s office of the town by the town clerk
thereof, and shall notify in writing each of the owners or occupants
through which such alteration or new road is proposed to be laid, of
the time and place of drawing such jury, by personally serving such
notice on such owner or occupant at least five days before the drawing
of such jury, or by mailing a copy thereof at least eight days before
such drawing to such owner or owners, in the manner prescribed by
law for the service of legal notices. At the time and place men-
tioned the town clerk of such town, having received such notice that
such jury is to be drawn, shall, in the presence of a justice of the
peace or one of the commissioners of highways of the town, deposit
in a box the names of all persons then residents of his town whose
names are on the lists filed in said town clerk’s office, of those selected
and returned as jurors, pursuant to article second, title four, chapter
seven, part third of the Revised Statutes,* who are not interested in
the lands through which such road is to pass or be located, nor of kin
to the owner thereof, and shall publicly, in the presence of such
justice of the peace or commissioner, draw therefrom the names of
twelve persons, and shall make a certificate of such names and the
purposes for which they were drawn, and shall deliver the same to
the person asking for the jury, and the applicant for such jury shall
pay to the said town clerk one dollar for drawing such jury. The
applicant for such road or alteration of a road, on receiving such
certificate, shall deliver the same to a justice of the peace of the town
wherein the road is to be laid, and it shall be the duty of such justice
forthwith to issue a summons to one of the constables of said town
directing him to summon the persons named in said certificate, speci-
fying a time and place in said summons at which the persons to be
summoned shall meet, which shall not be less than ten nor more than
twenty days from the issuing thereof; and in case the owner or
owners of any lands through which said road or alteration is proposed
to be located shall be a non-resident it shall be the duty of such jus-
tice to notify such owner or owners by mail, at least eight days before
the meeting of such jury, of the time and place of such meeting, and
if any person so summoned to attend as a juror shall neglect or refuse
to attend at the time and place designated in such summons, the

 

* See foot note, page 437, ante.

440
UNREPEALED. | HIGHWAYS. PART IIL

person or persons so neglecting or refusing to attend shall be liable, » Neglect of
unless a sufficient excuse be established, to pay a fine of five dollars, attend.
which shall be sued for and recovered by the overseers of the poor

of said town, and such fine shall be applied by them to the support

of the poor thereof. If nine or more of the persons, who shall have

been so drawn, not interested in the lands through which the road is

to be laid, nor of kin to the owners thereof, shall appear at the time

and place specified in the summons, they shall then be sworn by the Oath to
justice of the peace who issued such summons well and truly to cer-

tify as to the necessity of the highway applied for, and if such justice

of the peace shall refuse or neglect to attend at the time and place
mentioned in said summons, such oath may be administered to such

juror, by any other justice of the peace of said county ; and the justice

of the peace swearing such jury shall receive therefor from such duisteste
applicant the sum of two dollars. Such jury shall then personally
examine the ronte of such highway, and shall hear any reasons that pa
may be offered for or against such proposed route or alteration. If °°"
nine or more of the number thereof shall be of opinion that such
highway or alteration of a highway is necessary and proper, they

shall make and subscribe a certificate in writing to that effect, which

shall be delivered to the commissioners of highways of the town.

But if such number thereof shall not certify that such road or altera-

tion is necessary then no application for such road or alteration shall

be made again in three months. Every juror shall be entitled to waren
receive for his services as such juror the sum of one dollar and fifty

cents, to be paid by such applicant, and the constable who may sum-

mon such jury shall.receive therefor, from such applicant therefor,

ten cents for summoning each juror summoned, and ten cents a mile

for each mile actually and necessarily traveled in summoning such

jury, in going from and returning to his place of residence therefor.

If nine or more of such jurors shall make a certificate that such high-

way or alteration is necessary and proper, then the cost of such pro-
ceeding as hereinbefore provided shall be a charge against such town

in favor of such applicant. The commissioners of highways shall Commis-
decide upon such application for such road or alteration within thirty gpgide ia
days after the decision of the jury, by an order in writing, which

shall be filed in the office of the town clerk of such town.
[56] 441
JUSTICE’S
MANUAL.

Limita-
tion.

Repeal.

Tenancy
at will,
etc.,
termi-
nated by
notice.

How
served.

Rights of
landlord.

Penalty on
tenant for
not yield-
ing posses-
sion after
giving
notice.

LANDLORD AND TENANT. [STATUTES

§ 2. This act shall not affect any proceedings in relation to the
laying out of any highway instituted under chapter two hundred and
seventy-one of the laws of eighteen hundred and seventy-six, nor any
proceedings of appeal therein.

§ 8. Chapter two hundred and seventy-one of the laws of eighteen
hundred and seventy-six is hereby repealed.

§ 4. This act shall take effect immediately.

[1 BR. 8., 514, § 60(1 Edm., 473), as amended by L. 1877, ch. 465.]

Proceedings retating to landlord and tenant.

§ 7. Wherever there is a tenancy at will, or by sufferance created,
by the tenant’s holding over his term, or otherwise, the same may
be terminated by the landlord’s giving one month’s notice in writing
to the tenant, requiring him to remove therefrom.

[14 N. Y., 64; 14 B., 255; 12 B. 484; 3 B., 579; 7 Cow., 747; 4 D., 187; 19
How. P. R., 31; 11 W., 616; 5 Du., 559; 31 N. Y., 454.]

§ 8. Such notice shall be served by delivering the same to such
tenant, or to some person of proper age residing on the premises ;
or if the tenant cannot be found, and there be no such person resid-
ing on the premises, such notice may be served by affixing the same
on a conspicuous part of the premises, where it may be conven-
jently read.

{11 W., 620; 4D, 187.]

§ 9. At the expiration of one month from the service of such
notice, the landlord may re-enter, or maintain ejectment, or proceed
in the manner prescribed by law, to remove such tenant, without
any further or other notice to quit.

(14 B., 253; 12 B., 484; 4 D., 187.]

§ 10. If any tenant shall give notice of his intention to quit the
premises by him holden, and shall not accordingly deliver up the
possession thereof, at the time in such notice specified, such tenant,
his executors or administrators, shall, from thenceforward, pay to
the landlord, his heirs or assigns, double the rent which he should
otherwise have paid, to be levied, sued for and recovered, at the

saine time and in the same manner, as the single rent; and such
442
UNREPEALED,]| LANDLORD AND TENANT. Pant os

double rent shall be continued to be paid during all the time such
tenant shall continue in possession as aforesaid.
§ 11. If any tenant, for life or years, or if any other person who Penalty on

may have come into the possession of any lands or tenements, under £43 for
over after

or by collusion with such tenant, shall wilfully hold over any lands notice to
or tenements after the termination of such term, and after demand =e
made and one month’s notice, in writing, given in the manner here-
inbefore prescribed, requiring the possession thereof by the person
entitled thereto, such person so holding over shall pay to the person so

kept out of possession, or his representatives, at the rate of double

the yearly value of the lands or tenements so detained, for so long a

time as he shall so hold over or keep the person entitled, out of
possession ; and shall also pay and remunerate all special damages
whatever, to which the person so kept out of possession may be sub-

jected by reason of such holding over; and there shall be no relief No relief

in equity.
in equity against any recovery had at law under this section.
[81 N. Y., 454.] Remedy
on leases

§ 19. Any person having any rent due upon any lease for life or £°""*e-

lives, may have the same remedy to recover such arrears, by action
of debt, as if such lease were for years.

§ 20. Every person entitled to any rents dependent upon the life of Rents de

any other, may, notwithstanding the death of such other person, ancthon

have the same remedy by action or by distress,* for the recovery of
all arrears of such rent, that shall be behind and unpaid at the
death of such other person, as he might have had if such person was
in full life.

§ 21. The executors or administrators of every person to whom Remeay of
executors,

any rent shall have been due and unpaid at the time of his death, etc. for

may have the same remedy by action or by distress,* for the recovery ™"™

of all such arrears, that their testator or intestate might have had, if
living.
(20 B., 274; 5 Cow., 502.]

§ 22. When a tenant for life, who shall have demised any lands, Executors,
shall die on or after the day when any rent became due and payable, tenant for

his executors or administrators may recover from the under tenant,
the whole rent due; if he die before the day when any rent is to

 

* Distress for rent abolished, L. 1846, ch. 274, $1, p. 445, post.
443
JUSTICE’S
MANUAL.

Rights of
grantees,
assignees,
etc., of
lessor of
demised
lands,

Rights of
lessees
and their
assignees,
etc.

Applica-
tion of
two last
sections.

When
landlord
may re-
cover for
use and
occupa-
tion,

LANDLORD AND TENANT. [STATUTES

oecome due, they may recover the proportion of rent which accrued
vefore his death.
[35 Barb., 295 ; 21 N. Y., 280]

§ 23. The grantees of any demised lands, tenements, rents or
other hereditaments, or of the reversion thereof, the assignees of the
lessor of any demise, and the heirs and personal representatives of
the lessor, grantee or assignee, shall have the same remedies by
entry, action, distress or otherwise, for the non-performance of any
agreement contained in the lease so assigned, or for the recovery of
any rent, or for the doing of any waste or other cause of forfeiture,
as their grantor or lessor had, or might have had, if such reversion
had remained in such lessor or grantor. j

{19 N. Y.,82; 12 N. Y., 296; 14 N. Y., 22; 6 N. Y., 491; 32 B., 458; 27B.,
178; 12 B., 462; 2 H., 276, 475; 5 D., 127; 18 W., 609; 2 Hilt.,6; 46 B., 440; 41
N.Y., 219.]

§ 24. The lessees of any lands, their assigns or personal represen-
tatives, shall have the same remedy by action or otherwise against
the lessor, his grantees, assignees, or his or their representatives, for

he breach of any covenant or agreement in such lease contained, as

such lessee might have had against his immediate lessor, except cov-
enants against incumbrances, or relating to the title or possession of
the premises demised.

(12 N. Y., 301; 27 B.,173; 12 B., 462; 48. 8.C., 516; 46 B., 440.]

§ 25. The provisions of the two last sections shall extend as well
to grants or leases in fee, reserving rents, as to leases for life and for

years.

[Does not apply to deeds of conveyance in fee, made before April 9, 1805, or
after April 14, 1860; L. 1860, ch. 396 (4 Edm., 432). 19 N. Y., 100; 32 B., 458;
27 B., 173; 12 B., 462; 46 B., 440.]

§ 26. Any landlord may recover in an action on the case, a rea-
sonable satisfaction for the use and occupation of any lands or tene-
ments, by any person under any agreement not made by deed ; and
if any parol demise or other agreement, not being by deed, by which
a certain rent is reserved, shall appear in evidence on the trial of
any such action, the plaintiff shall not on that account be debarred
from a recovery but may make use thereof as evidence of the
amount of the damages to be recovered.

(15 N. Y., 328; 25 B., 249; 7 B., 194; 7 H., 88; 1 Hilt. 56, 155; 63. R., 46; 1
D., 37; 1 W., 1384; 7 W., 109; 1387. R., 240, 297, 489.]

444
UNREPEALED.|. LANDLORD AND TENANT.

§ 27. Every tenant to whom a declaration in ejectment, or any
other process, proceeding or notice of any proceeding, to recover the
land occupied by him, or the possession thereof, shall be served, shall
forthwith give noticé thereof to his landlord, under the penalty of
forfeiting the value of three years’ rent of the premises so occupied
by him, which may be sued for and recovered by the landlord or
person of whom such tenant holds.

[The preceding sections, 7-27, are 1 R. S.,'745-748 (1 Edm., 696-699). Section

27 is poe superseded by § 2241 of the Code of Civil Procedure. See p. 882,
ante.

Cuap. 274.
AN ACT to abolish distress for rent, and for other pur-

poses.”
PassED May 13, 1846.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Sxction 1. Distress for rent is hereby abolished.
[14 N. Y., 28.]

§ 2. The twelfth, thirteenth, fourteenth, fifteenth, sixteenth and
seventeenth sections of the fourth title of the first chapter of the

second part of the Revised Statutes are hereby repealed.
[26 B., 440.]

§ 8. Whenever the right of re-entry is reserved and given to a
grantor or lessor in any grant or lease in default of a sufficiency of
goods and chattels whereon to distrain for the satisfaction of any
rent due, such re-entry may be made at any time after default in the
payment of such rent, provided fifteen days’ previous notice of such
intention to re-enter, in writing, be given by such grantor or lessor,
or his heirs or assigns, to the grantee or lessee, his heirs, executors,
administrators or assigns, notwithstanding there may be a sufficiency
of goods and chattels on the lands granted or demised for the satisfac-
tion thereof. The said notice may be served personally on such
grantee or lessee, or by leaving it at his dwelling house on the
premises.

[18 N. Y., 303; 2N. Y., 183; 32 B., 451; 27 B.,110; 21 B., 648; 18 B., 158; 9
B., 302; 8 B., 502; 2.B., 319; 1B., 377; 4 D., 874; 8D. 274; 65 N. Y., 411.)

 

* This act is repealed by L. 1880, ch 245, post; but distress for rent is not revived thereby.

See id., § 3, subd. 10, p, 514.
445

PART III.

Penalty on
tenant for
not deliv-
ering, etc.,
notice
served on
him.

Abolished.

Repeal of
Revised
Statutes.

Re-entry,
when and
how to be
made.
apercee LANDLORD AND TENANT. [sraTurEs

Cuap. 345.

AN ACT in relation to the rights and liabilities of owners
and lessors, and of lessees and occupants of buildings.

PassED April 13, 1860.

The an of the State y New-York, represented in Senate
and Assembly, do enact as follows :

Tenants Srotion 1. The lessees or occupants of any building which shall,

Prvertain Without any fault or neglect on their part, be destroyed, or be so in-

oie jured by the elements, or any other cause, as to be untenantable
and unfit for occupancy, shall not be liable or bound to pay rent to
the lessors or owners thereof, after such destruction or injury, unless
otherwise expressly provided by written agreement or covenant, and
the lessees or occupants may thereupon quit and surrender posses-
sion of the leasehold premises, and of the land so leased or occupied.

[4 Edm., 483; 26.N. Y., 498; 4 id., 217; 34 id., 527; 45 id., 119; 54 id. 450; 56
id., 129; 29 How. Pr., 262; 42 id., 64; 45 id., 136.]

Cuap. 583.

AN ACT to define some of the rights and responsibilities
of landlords and tenants.

PassED May 22, 1873.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

When Sxcrton 1. Whenever the lessee or occupant, other than the owner
lease to

become of any building or premises, shall use or occupy the same, or any
part thereof, for any illegal trade, manufacture or other business,
the lease or agreement for the letting or occupancy of such building
or premises shall thereupon become void, and the landlord of such
lessee or occupant may enter upon the premises so let or occupied,
and shall have the same remedies to recover possession thereof as
are given by law in the case of a tenant holding over after the expi-
ration of his lease.

Liability § 2. The owner or owners of any building or premises knowingly

of owner ¥ sh . : .
leasing for leasing or giving possession of the same, to be used or occupied, in

446
UNREPEALED. ] MECHANICS’ LIENS.

PART III.

whole or in part, for any illegal trade, manufacture or business, or inegal

knowingly permitting the same to be used for any illegal trade,
manufacture or business, shall be jointly and severally liable with
the tenant or tenants, occupant or occupants, for any damage that
may result by reason of such illegal use, occupancy, trade, manufac-
ture or business.

§ 3. This act shall take effect immediately.

[See Code Civ. Pro., § 2231, p. 325, ante.]

Proceedings to create and enforce a mechanics or laborers ten.

Cuap. 489.

AN ACT to amend an act entitled “An act for the better
security of mechanics and others erecting buildings in
the counties of Westchester, Oneida, Cortland, Broome,
Putnam, Rockland, Orleans, Niagara, Livingston, Otsego,
Lewis, Orange and Dutchess, passed April seventeenth,
eighteen hundred and fifty-four,” and as amended by
chapter five hundred and fifty-eight of the laws of eigh-
teen hundred and sixty-nine, entitled “An act for the
better security of mechanics and others erecting build-
ings in either of the counties of this State, except the
counties of Erie, Kings, Queens, New York and Onon-
daga.”

PASSED May 12, 1873 ; three-fifths being present.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Secrion 1. Section one of the act entitled “ An act for the better
security of mechanics and others erecting buildings in the counties
of Westchester, Oneida, Cortland, Broome, Putnam, Rockland,
Orleans, Niagara, Livingston, Otsego, Lewis, Orange and Dutchess,
passed April seventeenth, eighteen hundred and fifty-four,” and as
amended by chapter five hundred and fifty-eight of the laws of
eighteen hundred and sixty-nine, entitled “An act for the better
security of mechanics and others erecting buildings in either of the

counties of this State, except the counties of Erie, Kings, Queens,
447

business.
JUSTICEH’S
MANUAL.

Mechan-
ic’s lien.

Amount
limited.

MECHANICS’ LIENS. [STATUTES

New-York and Onondaga,” is hereby amended so as to read as
follows:

§ 1. Any person who shall hereafter perform any labor in erect-
ing, altering or repairing any house, building or appurtenances to
any house, building or building lot, including fences, sidewalks,
paving wells, fountains, fish-ponds, fruit and ornamental trees and
every improvement whatever to any such house, building or build-
ing lot in either of the counties of this State, except Kings, Queens,
New-York, Onondaga and Rensselaer, and except the city of Buffalo,
or who shall furnish any materials therefor, with the consent of the
owner, being such owner as is in this section hereinafter described,
shall, on filing with the county clerk of the county in which the
property is situated, the notice prescribed by the fourth section of
this act, have alien for the value of such labor and materials upon
such house, building or appurtenances and upon the lot, premises,
parcel or farm of land upon which the same shall stand to the ex-
tent of the right, title and interest of the owner of the property,
whether owner in fee or of a less estate, or whether a lessee for a
term of years thereafter, or vendee in possession under a contract
existing at the time of the filing of said notice, or any right, title
and interest in real estate against which an execution at law may
now be issued under the general provisions of the statutes in force
in this State relating to liens of judgment and enforcement thereof.

§ 2. Section two of said act is hereby amended so as to read as
follows :

§ 2. Whenever the labor performed or materials furnished shall
be upon the credit of any contractor who shall have made a contract
therefor with the owner of the property, or such person interested
as aforesaid, whether such contract be oral or in writing, express or
implied, or for any specified sum or otherwise, or upon the credit of
any subcontract, or the assignee of any contractor, the provisions of
this act shall not oblige the owner of the property or other person
in interest as aforesaid to pay for or on account of any labor per-
formed or materials furnished for such house, building or appurte-
nances any greater sum or amount than the price so stipulated and
agreed to be paid therefor by said contract, or the value of such

labor and materials, except as in the next section provided.
448
UNREPEALED. | MECHANICS’ LIENS.

§ 3. Section three of said act is hereby amended to read as follows:

§ 3. If the owner, or such person in interest as aforesaid, of any
building for or towards the construction, altering or repairing of
which, or its appurtenances, labor or materials shall have been fur-
nished by contract, whether oral or written, shall pay to any person
any money or other valuable thing on such contract, by collusion,
for the purpose of avoiding or with intent to avoid the provisions of
this act, when the amount still due or to grow due to the contractor,
subcontractor or assignee, after such payment has been made, shall
be insufficient to satisfy the demands made, in conformity with the
provisions of this act, the owner or other party in interest, as afore-
said, shall be liable to the amount that would have been due and
owing to said contractor, subcontractor or assignee, at the time of
the filing of the notice in the first section of this act mentioned, in
the same manner as if no such payment had been made.

§ 4. Section four of said act is hereby amended to read as follows:

§ 4. Within sixty days after the performance and completion of
such labor, or the final furnishing of such materials, the contractor,
subcontractor, laborer or person furnishing the same, shall file a
notice in writing in the clerk’s office in the county where the prop-
erty is located, specifying the amount of the claim and the person
against whom the claim is made, the name of the owner, or of the
party in interest, as aforesaid, of the premises, and if in a city or
village, the situation of the building by street and number, if the
street or number be known. ‘The county clerk shall enter the par-
ticulars of such notice in a book to be kept in his office, to be called
the “lien docket,” which shall be suitably ruled in columns headed
“claimants,” “against whom claimed,” “ owners and parties in in-
terest,’ “buildings,” ‘amount claimed,” and the date of the filing
of the notice, hour and minute, what proceedings have been had.
The names of the owners and parties in interest and other persons
against whom the claims are made shall be entered in said book in
alphabetical order. A fee of ten cents shall be paid to said clerk on
filing such lien, and no lien shall attach to said land, buildings or
appurtenances unless such notice shall be filed by said clerk; and
such notice when so filed shall thereafter operate as an incumbrance
upon said property.

[57] 449

PART Nit.

Payments
made on
contract
by collu-
sion.

Within
what time
notice to
be filed.

Lien
docket.

Clerk’s
fees.
JUSTICE'S
MANUAL.

Evidence
to estab-
lish lien.

Action to ~
enforce
lien.

MECHANICS’ LIENS. [STATUTES

§ 5. Section five of said act is hereby amended to read as follows:

§ 5. Any person performing labor, or furnishing materials, in
availing himself of the provisions of this act, shall, upon the trial,
or at the assessment of damages, produce evidence to establish the
value of such labor or materials; and that the same was performed
for or used by the said owner or party in interest as aforesaid, or his
agent, original contractor, subcontractor or assignee of such con-
tractor, in or towards the construction, altering or repairing of such
house, building or appurtenances.

§ 6. Section six of said act is hereby amended to read as follows:

§ 6. Any contractor, subcontractor, mechanic, laborer or other
person performing any work or furnishing any materials as above
provided, or the assignee of any such person or persons, may, after
such labor has been performed or materials furnished, and filing of
the notice required by the fourth section of this act, bring an action
in the supreme court in the county in which the property is situate,
or in the county court of said county when the amount exceeds fifty
dollars, to enforce such lien, which action shall be commenced by
serving a notice containing a statement of the facts constituting the
claim and the amount thereof, and any other facts material to the
case, on the owner of the property, or such party in interest as afore-
said, or his agent, as well as upon each and every claimant by whom
notice of lien shall have been previously filed, as well as upon any
contractor, subcontractor or other person having an interest in the
subject-matter of said claim, requiring such person or persons to ap-
pear in person or by attorney within twenty days after such service
and answer the same, and serve a copy of such answer, together with
a notice of any set-off or claim that he or they may have, upon the
claimant or his attorney, or in default thereof, that the claimant will
take judgment against said owner or other person in interest as
aforesaid, for the amount claimed to be due for the labor performed
or materials furnished, with interest thereon and costs, and the en-
forcement of said lien; said supreme court and county court shall
have full power to adjust and enforce all the rights and equities
between all or any of said parties, and enforce or protect the same

by any of the remedies usual in said courts.
450
UNREPEALED. | MECHANICS’ LIENS.

§ 7. Section seven of said act is hereby amended so as to read as
follows :

§ 7. Within twenty days after the service of said notice and a
bill of particulars, as hereinafter provided, the defendant or de-
fendants named therein shall personally serve the claimant, or his
attorney, with a copy of his or their answer or answers, and notice
of set-off, or counterclaim, if any, duly verified by oath, to the
effect that the same is in all respects true, or his or their default may
be entered and judgment taken and enforced as hereinafter pro-
vided.

§ 8. Section eight of said act is hereby amended s0 as to read as
follows :

§ 8. When the amount of the lien claimed is two hundred dollars
or under, the claimant may commence his action in a justice’s court

of the town or city in which the premises are located, by serving a’

notice upon the owner or party in interest as aforesaid, or his or
their agent anywhere within this State, requiring him or them to
appear before a justice of the town or city in which such premises
are located, which notice shall contain a statement of the facts con-
stituting the claim and the amount thereof, and shall require him or
them to appear before said justice in person, or by attorney, at a
time certain, not less than twenty days after such service, and
answer the same, or in default thereof, that the claimant will take
judgment against such person or party in interest, for the amount
so claimed to be due, with interest thereon and costs.

See § 2876, p. 10, ante, and L. 1880, ch. 245, § 3, subd. 5, p. 518, post. As to
clone the vrosending jis an ‘‘action”, within § 3383, p. 355, ante, see 57 N. Y.,
414]

89. Section nine of said act is hereby amended to read as fol-
lows:
§ 9. In any case where a notice hereinbefore mentioned cannot

be served personally on such owner or party in interest, or his or
their agent, by reason of absence from the State, or being concealed
therein, then such service may be made by leaving a copy of such
notice at the last place of residence of such owner or party in
interest, and publishing a copy thereof for three weeks in succession,
in a newspaper published in the city or county where the property
is located; and in case of the service of such notice by publication,
451

PART IIT.

Answer,
within
what time
to be
served.

Action in
justice’s
court.

Notice,
service of.
JUSTICE’S
MANUAL.

Bill of
articu-
ars.

When
clerk may
assess
amount of
lien.

Execution.

MECHANICS’ LIENS. [STATUTES

then the said twenty days shall commence to run from the date of
first publication of said notice.

[See § 787, p. 210, ante.]

§ 10. Section ten of said act is hereby amended to read as follows:

§ 10. At the time of the service of said notice, as hereinbefore
directed, a bill of particulars of the amount claimed to bedue from
such owners or party in interest, his or their contractor or subcon-
tractor, verified by the oath of the claimant, or his attorney, to the
effect that the same is true, shall be served as aforesaid upon such
owner or party in interest, or his or their agent, and all other per-
sons made parties, if any, except that such bill of particulars need
not be published with such notice.

§ 11. Section eleven of said act is hereby amended to read as
follows:

§ 11. In case said owner or other party in interest, or the person
or persons upon whom such notice shall have been served, as men-
tioned in section six of this act, shall not appear as required in and
by the notice given in pursuance of the sixth and eighth sections of
this act, then, on filing with the county clerk, when such action is
brought in the supreme court or county court, or with the justice,
when the action is before said justice, an affidavit of the service of
such notice and bill of particulars, and the failure of the owner or
other party in interest, and such person or persons as aforesaid, to
appear as therein required, the amount of such claim may be assessed
by said county clerk, or by the court or justice, as the case may be;
and upon the assessment of damages as aforesaid, judgment shall be
entered upon the said assessment, establishing the amount of said
lien, with the costs; execution shall thereupon issue for the enforce-
ment and collection of said claim so adjudicated and established, in
the same manner as executions upon other judgments in said courts,
in actions arising on contract for the recovery of money only, ex-
cept that the execution shall direct the officer to sell the right, title
and interest which the owner, or other person in interest, had in the
premises at the time of filing the notice prescribed by the first sec-

tion of this act.

[eee §§ 1240 and 1241 of the Code of Civil Procedure ; L. 1880, ch. 245, § 3,
subd. 5, post: the last clause of the next section ; and note on p. 451, ante.]

452
UNREPEALED. | MECHANICS’ LIENS. PART IIL.

§ 12. Section twelve of said act is hereby amended to read as
follows :
§ 12. On the appearance of both parties before the justice, where Issue in

justice’s

an action is brought before a justice of the peace, the owner or Sout

acd : ‘ ' .,. formed.
other party in interest as aforesaid shall put in an answer in writing °""”

duly verified with a bill of particulars, or counterclaim or set-off

(if any) annexed, and the issue formed by the service of the notice

and bill of particulars on the part of the claimant, and the answer

and bill of particulars on the part of the owner or other party in

interest, shall be tried and governed by the same rules as other issues

in justices’ courts; and the judgment thereon shall be enforced, if Judement,
enforced.

for the claimant, as hereby provided, and if for the owner or other
party in interest, asin other actions arising on contract.

[See note to last section.]

§ 13. Section thirteen of said act is hereby amended to read as
follows: Id., in

. . supreme
§ 18. When the action is brought in the supreme court or in the oT county

ourt.
county court, the issue shall be formed by the service of the notice ;
and the bill of particulars, on the part of the claimant as before di-
rected ; and the answer with a bill of particulars, set-off or counter-
claim of the owner or other party in interest,or of any other person who
has been made defendant as hereinbefore provided, duly verified.

$14. Section fourteen of said act is hereby amended to read as
follows:

§ 14. At any time after the issue shall beso joined in the supreme Notice of
court or county court, and at least fourteen days before the com-
mencement of the court, the same may be noticed for trial and put
upon the calendar of said courts by either party furnishing the
clerk of the court with a note of issue as now required in other ac-
tions; and the action thereafter shall be governed and tried in all
respects as upon issues joined and judgment rendered in other
actions for relief arising on money demands upon contracts in said
courts; and judgment thereupon shall be enforced if for the claim-
ant, as provided by this act, and if for the owner or person or per
sons in interest, as in other actions arising on contract.

§ 15. When such action is brought in the supreme court or in the When -

county court, such court shall have power to ascertain and declare cece ine

453
JUSTICE’S
MANUAL.

of the
several
claimants.

Justice’s
transcript;
contents
thereof ;,
filing.

Reference
to take
proof.

MECHANICS’ LIENS. [STATUTES

the interest of the several claimants, if more than one, in the mon-
eys due or to grow due, from the owner or other person or persons
interested in said premises, as aforesaid, and the priority and
amounts of the respective liens, as well as to adjudge or decree the
particular person or persons entitled thereto, and to declare the in-
terest of all parties who have been made parties to the proceedings,
and to conclude the whole controversy in one final decision, and for
that purpose to render judgment or make such order or decree in
favor of or against any one or more of the parties severally or
jointly as may be just, leaving the action to proceed against the
other party or parties, and may order separate trials between any of
the parties in its discretion.

§16. When a judgment has been rendered by any justice in favor
of a claimant, such justice shall give a transcript thereof, which may
be filed and docketed in the office of the clerk of the county where
the judgment wasrendered. Such transcript shall contain the full
name or names of the party or parties, in whose favor or against
whom such judgment shall be rendered, and their relation as claim-
ant or owner, debtor or creditor, a specific description of the prem-
ises affected thereby, the amount for which such judgment is ren-
dered, together with the costs incident thereto. The time of receipt
of such transcript by the county clerk shall be noted thereon, and
entered on a docket, and thereupon such judgment shall become
a judgment of the county court and enforceable in all respects as
provided by section eleven of this act.

§ 17. All or any of the issues in such action (if brought in the
supreme court or a county court) or for the purpose of taking proofs
therein, may be referred by the written consent of the parties, or
where the parties do not consent, the court may, upon the applica-
tion of any party to such action, direct a reference thereof, in the
same manner and to the same effect, in all respects, as specified in
section two hundred and seventy-one of the Code of Procedure,
and such referee or referees shall have all the powers conferred
upon referees by sections two hundred and seventy-two and two
hundred and seventy-three of said Code.

[See L. 1880, ch. 245, § 8, subd. 18, page 514, post. Co. Proc., § 271, is revised in $§

1018 and 1015, Code Civ. Proc. ; § 272 in id., $§ 994, 997, 1014, 1018, 1022, 1226,
1228, 1337 and 1388 ; and § 273 in id., $§ 1011, 1012, 1019, 1024 and 1025. ]

454
UNREPEALED. | MECHANICS’ LIENS.

§ 18. Section sixteen of said act is hereby amended to read as
follows :

§ 16. Costs and disbursements shall be allowed to either party
upon the principles and by the same rules in such actions as are
now allowed by law in actions for relief arising on contract, and
shall be included in the judgment recovered therein, and the ex-
penses incurred in serving said notice by publication may be allowed
in justices’ courts, and added to the amount of costs now allowed in
said courts. When the action is brought in the supreme court or in
a county court, such direction shall be made in the discretion of the
court, as to the payment of costs, as shall be just and equitable, and
the judgment entered shall specify as to whom and by whom the
costs are to be paid.

§ 19. Section seventeen of said act is hereby amended s0 as to
read as follows:

$17. A transcript of every judgment rendered under this act,
headed ‘lien docket,” shall be furnished by the clerk of the county
where rendered and docketed to the successful party, who may file
the same with the county clerk of any other county, and the same
shall thereafter be a lien on the real property, in the county where
the same is filed and docketed, of every person against whom the
same is rendered, if, for twenty-five dollars or upward, exclusive of
costs, in like manner and to the same extent as in other actions for
the recovery of money arising on contracts, and where the judgment
is against the claims, the county clerk shall enter the word “ dis-
charged ” under the last head in his lien docket, on receiving a
transcript from the county clerk or justice that judgment has been
rendered against the claimant.

§ 20. Section eighteen of said act is hereby amended so as to read
as follows:

§ 18. In case the owner or his agent, or other parties in interest,
shall desire to secure proofs of and from persons having claims
under the provisions of this act, he may at any time give personal
notice to such person or persons, or if, by reason of absence from
the State, or being concealed therein, such personal service cannot
be made, then such owner or party interested in such property as
aforesaid, or his or their agent, may, at any time, give public notice

 

455

PART IIL

Costs, etc.

Tran-
script,
filing of,
etc.

Proofs of
claims of
other
claimants.
JUSTICE’S
MANUAL.

Owner to
give notice
to claim-
ants to
present
claims.

Stay of
proceed-
ings,

Limita-
tion.

MECHANICS’ LIENS. [STATUTES

in the same manner as notice is required to be given for sale of real
estate by virtue of an execution, to all persons having claims under
any of the provisions of this act against such buildings, lands, prem-
ises or appurtenances, at the time of the date of publishing such
notice, to present the same, with vouchers in support thereof, to
any justice of the peace in the city, town or village where such
premises are situated, on or before a certain hour or day to be speci-
fied in said notice, and to be at least six weeks from the service or
the first publication of said notice; and in case of the failure of such
person or persons to present his or their claims as required by said
notice, each and every person so failing shall forever lose the bene-
fit and be precluded of the said lien.

§ 21. Section nineteen of said act is hereby amended to read as
follows : .

§ 19. Whenever such owner or party in interest as aforesaid, or
his or their agent, shall be proceeded against by a mechanic, con-
tractor or sub-contractor, or any other person claiming under the pro-*
visions of this act, it shall be lawful for such owner or person in
interest, or his or their agent, to give the notice prescribed by the
preceding section for the presentation of claims to the court or jus-
tice before whom the proceedings all* commenced, and present as a
set-off, all claims and liens thereupon presented or established, and
the justice before whom, or a judge of the court in which, the pro-
ceedings shall be commenced, may, upon the request of the owner
or his agent, or such person interested in the premises as aforesaid,
grant a stay of proceedings, sufficient to enable such notice to be
given, and call in all such claims, which said claims, if established
and allowed by the justice or the court, shall be adjusted and may
be a set-off to such contractor’s claim to the amount so allowed, or
otherwise, as shall be just, according to priority, and the court may
determine and enforce any of the claims so presented, and render
judgment thereupon.

§ 22. Section twenty of said act is hereby amended to read as
follows :

§ 20. Every lien created under the provisions of this act shall
continue until the expiration of one year, unless sooner discharged

 

*So in original.

456
UNREPEALED. | MECHANICS’ LIENS.

by the court, or some legal act of the claimant in the proceedings,
*but if, within such year, proceedings are commenced under this act
to enforce or foreclose such lien, then such lien shall continue until
judgment is rendered thereon, and for one year thereafter; such
len shall also continue during the pendency of an appeal, and for
one year after the determination thereof. When a judgment is
rendered as aforesaid, it may be docketed in any county of this
State and enforced as if obtained in an action in a court of record.
[See 77 N. Y., 489.]

§ 23. Section twenty-one of said act is hereby amended s0 as to
read as follows:

§ 21. After a judgment shall have been rendered in pursuance of
the provisions of this act, either party may appeal therefrom in the
same manner, and within the time appeals may now be taken in
actions for the recovery of money arising on contract, and said ap-
peal shall be thereafter heard, governed and determined upon the
sane principles and by the rules that appeals in said actions are now
heard, governed and determined, with like costs and disbursements,
and the judgment thereon enforced in the same manner as judg-
ments on appeal are now enforced and collected. Such appeals shall
be had and taken only in the proceeding or action wherein judg-
ment shall be given or rendered, but such appeal shall not be oper-
ative as a stay of proceedings, or in any manner to affect the
foreclosure or action of any other claimant or claimants then pend-
ing.

§ 24. When any action is brought in the supreme court or county
court, under the provisions of this act, the court shall have power
to direct that judgment be entered for any deficiency remaining
after the enforcement of the judgment originally rendered in such
action against the owner or other party interested in said premises
affected thereby, and may issue execution against other property,
real or personal, of such owner or party interested as aforesaid.

§ 25. Section twenty-two of said act is hereby amended so as to
read as follows:

§ 22. The liens created and established by virtue of the provisions
of this act shall be paid and settled according to priority of notice
filed with the county clerk, as directed by the fourth section hereof.

[58] 457

PART III.

Appeal.

Judgment
for defi-
ciency,

Priority of
payment.
MANUAL. MECHANICS’ LIENS. [STATUTES

§ 26. Section twenty-three of said act is hereby amended s0 as to
read as follows:
Lienshow § 23. All liens created by this act may be discharged as follows:

dis-

charged. First. By filing with the county clerk a. certificate of the claimant

or his successor in interest, acknowledged or proved in the same
manner as a conveyance of real estate, stating that the lien has been
paid or discharged. Second. By depositing with the jnstice or
clerk of the court a sum of money equal to double the amount
claimed, which money shall thereupon be held subject to the deter-
mination of the lien; or, Third. By an entry of the county clerk,
made in the book of liens, that the proceedings on the part of the
claimant have been dismissed by the court in which it is brought,
or a judgment rendered against the said claimant; or, Fourth. By
an affidavit of the service of a notice from the owner or party in
interest, as aforesaid, or his or their agent, attorney, contractor or
subcontractor, to the claimant, requiring such claimant to commence
an action for the enforcement of his lien, and the failure of said?
claimant to commence an action as provided by section twenty of
this act.

§ 27. Section twenty-four is hereby amended so as to read as fol-
lows:

Acts re- § 24. Allacts heretofore passed for the better security of mechanics
and others erecting buildings and furnishing materials, in either of
the counties of this State, except the counties of Kings, Queens,
Erie, New-York, Onondaga and Rensselaer, are hereby repealed;
but this act shall not be so construed as to affect, enlarge, invalidate
or defeat any lien or right to a lien now existing, or any proceeding
to enforce such liens now pending by virtue of the provisions of the
acts hereby repealed.

§ 28. This act to take effect immediately.

[The foregoing is the act L. 1873, ch. 489 (9 Edm., 620-629), as amended by L.
1875, ch. 233. The act of 1873 amends each section of L. 1854, ch. 402 (4 Edm.,
673),as amended by L. 1869, ch. 558 (7 Edm., 456), excepting § 15 of the act of
1854. It is nevertheless considered that § 24 of the act of 1873 repealed § 15 of
the act of 1854, as well as L, 1858, ch. 204 (4 Edm., 678); L. 1870, ch. 529 (7 Edm.,
456); L. 1872, ch. 669 (9 Edm., 419), which are as follows:

L. 1854, ch. 402, § 15.

Sxction 15. Whenever a judgment shall be rendered against the owner, and in
favor of any laborer or person furnishing materials, and the owner has funds in his
possession due to the contractor, the costs of the proceeding shall be deducted
from such funds, unless otherwise directed by the court in which the action is
brought.

458
UNREPEALED. | MECHANICS’ LIENS.

3 E. D. S., 648; 2 E. D.S8., 644; 4 Abb., 262; 2 Abb., 364.

L. 1858, ch. 204.

Srction 1, All the provisions of the act entitled “ An act for the better secur-
ity of mechanics and others erecting buildings in the counties of Westchester,
Oneida, Cortland, Broome, Putnam, Rockland, Orleans, Niagara, Livingston,
Otsego, Lewis, Orange and Dutchess,” passed April seventeenth, eighteen hun-
dred and fifty-four, are hereby extended and declared to be applicable to all the
teas of this State except the city and county of New-York and the county of

rie.

§ 2. All acts and parts of acts inconsistent with this act are hereby repealed.

L. 1870, ch. 529.

SEcTION 1. The provisions of the laws relating to mechanics’ liens heretofore
passed shall apply to bridges and trestle work erected for railroads and materials
furnished therefor, and labor performed in constructing said bridges, trestle work
and other structures connected therewith, and the time within which said liens
may be filed shall be extended to ninety days from the time when the last work
shall have been performed on said bridges, trestle work and structures connected
therewith, or the time from which said materials shall have been delivered. This
shall apply to all uncompleted work commenced previous to the passage of
this act.

§ 2. This act shall take effect immediately.

L. 1872, ch. 669.

Section 1. All the provisions of the laws relating to mechanics’ liens hereto-
fore passed shall apply to wharves, piers, bulkheads and bridges and materials
furnished therefor, and labor performed in constructing said wharves, piers, bulk-
heads and bridges and other structures connected therewith, and the time within
which said liens may be filed shall be thirty days from the time when the last
work shall have been performed on said wharves, piers, bulkheads and bridges
and structures connected therewith, or the time from which said materials shall
have been delivered. This act shall apply to all incomplete work commenced
previous to the passage of this act.

67 N. Y., 149.

§ 2. This act shall take effect immediately.

The act of 1873 was made applicable to Erie county, excepting Buffalo, by L.
1874, ch. 551. If the owner is a married woman, she is treated as a feme sole.
Husted v. Mathes, 77 N. Y., 388. For special mechanics’ lien laws, relating to par-
ticular localities, see (New-York) L. 1879, ch. 509; L. 1875, ch. 379 ; L. 1868, ch.
79, L. 1866, ch. 752; L. 1863, ch. 500; 6 Abb. N. C., 871; (Kings and Queens)
L. 1862, ch. 478; (Rensselaer) L. 1865, ch. 788; 66 N. Y., 1; (Buffalo) L, 1871, ch.
872; L. 1844, ch. 805 ; (Onondaga) L, 1866, ch, 788; L. 1864, ch, 366.]

Guap. 440.

AN ACT to provide for the protection of mechanics and
others.

PassED May 27, 1880; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Sxcrion 1. Any person who shall hereafter perform any labor in
or about the sinking, drilling or completing of any oil well, or any
well sunk or drilled for oil, or gas, or other volatile or mineral sub-

stances, within the State of New-York, or in sinking or drilling any
459

PART IIL

Lien for
labor on
oil well;
when

allowed.
JUSTICE’S
MANUAL.

Filing
notice.

County
clerk to
enter.

MECHANICS’ LIENS. [STATUTES

water well, sunk or drilled for the purpose of drilling or operating
any such oil well or other well as aforesaid, or who shall erect, build,
or furnish any tank or other receptacle for oil, gas or water which
shall be built, erected or furnished for any of the purposes aforesaid,
or who shall perform any labor, or furnish any materials in or for
the building or erecting of such tank or other such receptacle as
aforesaid, or who shall furnish any materials for any of the purposes
aforesaid, including tubing, casing, sucker-rods, packers or other ap-
purtenances or appliances to any such well as aforesaid, with the
consent of the owner, being such owner as in this section hereinafter
described, shall, on filing with the county clerk of the county in
which the property is situated, the notice prescribed by the next
section of this act, have a lien for the value of such labor and mate-
rials upon such tank or other receptacle as aforesaid, and upon such
well as aforesaid, and appurtenances, and upon the lot, premises, par-
cel or farm of land upon which the same shall be situated, to the
extent of the right, title and interest of the owner of the property,
whether owner in fee or of a less estate, or whether lessee for a
term of years thereafter, or vendee in possession under a contract
existing at the time of the filing of said notice, or any right, title
or interest in real estate against which an execution at law may now
be issued under the provisions of the statutes in force in this State,
relating to liens of judgment and the enforcement thereof.

§ 2. Within sixty days after the performance and completion of
such labor or the final furnishing of such materials, the contractor,
sub-contractor, laborer or person furyishing the same, shall file a
notice in writing in the office of the clerk of the county where the
property is located, specifying the amount of the claim and the per-
son against whom the claim is made, the name of the owner or of
the party in interest as aforesaid of the premises, lot, parcel or farm
of land, together with a description of said lot, parcel or farm of
land. The county clerk shall enter the particulars of such notice in a
book to be kept in his office to be called the “lien docket,” which
shall be suitably ruled in columns headed “ claimants,” “against
“whom claimed,” owners and parties in interest, “amount claimed,”
and the date of filing of the notice, hour and minute, what pro-
ceedings have been had, the names of the owners and parties in

460
UNREPEALED. ] MECHANIOS’ LIENS.

interest and the persons against whom the claim is made shall be
entered in said book in alphabetical order. A fee of ten cents shall
be paid to said clerk on filing such notice, and no lien shall attach to
said land, well, tank or other receptacle or appurtenances or appli-
ances, unless said notice shall be filed by said clerk, and when so filed
said notice shall thereafter operate as an incumbrance upon said
property.

§ 8. Whenever the labor performed or materials furnished shall be
upon the credit of any contractor who shall have made a contract
therefor with the owner of the property, or such party in interest as
aforesaid, whether such contract shall be oral or in writing, or express
or implied, or for any specified sum or otherwise, or on the credit of
any sub-contractor or the assignee of any contractor or sub-contractor,
the provisions of this act shall not oblige the owner or party in in-
terest as aforesaid, to pay for or on account of any such labor or
materials, any greater sum or amount than the price stipulated and
agreed tobe paid therefor by said contract, or the value of such labor
and materials except as in the next section provided.

§ 4. At the time of the filing of said notice prescribed by the sec-
ond section of this act, the person filing said notice may serve upon
the said owner, or party in interest as aforesaid, a written notice
specifying the amount of the claim, the name of the person against
whom the claim is made, and for what labor or materials the claim
is made, which said notice shall be served, by delivering the same to
such owner or party in interest as aforesaid personally, or if there
shall be two or more of such owners or parties in interest, to either
or any one of them, or by leaving the same at the place of residence
of such owner or party in interest, or if there be two or more, of
either or any one of them, or in case said owner or party in interest
shall have no place of residence within the county where such prop-
erty as aforesaid shall be situated, then by mailing said notice to said
owner or party in interest, securely inclosed in a sealed envelope
directed to said owner or party in interest at his post-office address,
with the postage prepaid thereon, and from the time of the service
of such notice as aforesaid, such owner or party in interest shall be
liable to said claimant to the amount then due or owing to the con-
tractor, sub-contractor or assignee of such contractor, sub-contractor,

461

PART III.

Clerk’s
fee.

Amount
limited.

Notice

to be
served on
owner.

Effect
thereof.
JUSTICE’S
MANUAL.

Payments
made on
contract
by collu-
sion.

Action in
supreme
or county
court.

Id. ;in
justice’s
court.

MECHANICS’ LIENS. [STATUTES

upon whose credit such labor shall be performed or materials fur-
nished as hereinbefore provided. And in any case whether the
notice above prescribed shall or shall not be served as above provided
upon such owner or party in interest as aforesaid, if such owner or
party in interest as aforesaid shall pay or cause to be paid, to any
contractor, sub-contractor or assignee, or any other person, any money
or other valuable thing for the purpose of avoiding or with intent
to avoid any of the provisions of this act, when the amount still due
or to grow due to said contractor, sub-contractor or assignee, shall be
insufficient to satisfy the demands made in conformity with the pro-
visions of this act, the owner or other party in interest as aforesaid,
shall be liable to the amount that would have been due or owing to
said contractor, sub-contractor or assignee, at the time of the filing of
the notice in the second section of this act, in the same manner as if
no such payment had been made.

§ 5. Any contractor, sub-contractor, mechanic, laborer, or other
person performing any work or furnishing any materials as above
provided, or the assignee of any such person or persons, may, after
such labor has been performed or materials furnished, and the filing
of the notice provided by the second section of this act, when the
amount of the claim exceeds fifty dollars, bring an action in the
supreme court in the county in which the property is situated, or in
the county court of said county, to enforce such lien, which action
shall be commenced, and the proceedings therein conducted, and
judgment entered in the same manner and to the same effect as in
actions brought in said courts to enforce liens, provided by chapter
four hundred and two of the laws of eighteen hundred and fifty-four,
and the several acts amending the same, and the said courts shall
have full power to adjust and enforce all the rights and equities be-
tween any or all of the parties to such actions, and enforce or pro-
tect the same by any of the remedies usual in said courts. :

§ 6. When the amount of the lien claimed is two hundred dollars
or under, the claimant may commence his action in a justice’s court
of the town or city in which the premises are located, which action
shall be commenced, and the proceedings therein conducted and the
judgment entered, and transcript filed in the same manner and with
the effect as in actions commenced in justices’ courts to enforce liens

462
UNREPEALED. | MECHANICS’ LIENS.

pursuant to said chapter four hundred and two of the laws of eigh-
teen hundred and fifty-four, and the several acts amending the same.

§ 7. Costs and disbursements, in actions to enforce liens provided
for by this act, shall be allowed to either party upon the principles
and by the same rules as are now allowed by law in actions for relief
arising on contract, and shall be included in the judgment recovered
therein, and the expenses incurred in serving the notice by which
such actions shall be commenced by publication, may be allowed in
justices’ courts and added to the amount of costs now allowed in said
courts. When the action is brought in the supreme court or ina
county court, such direction shall be made in the discretion of the
court as to the payment of costs as shall be just and equitable, and
the judgment entered shall specify to whom and by whom the costs
are to be paid.

§ 8. A transcript of every judgment rendered under this act shall
be furnished by the clerk of the county where rendered and dock-
eted to the successful party who may file the same with the county
clerk of any other county and the same shall thereafter be a lien on
the real property in the county where the same is filed and docketed,
of every person against whom the same is rendered, if for twenty-
five dollars or upwards, exclusive of costs, in like manner and to the
same extent and enforceable by execution in the same manner as in
other actions for the recovery of money arising on contract.

§ 9. Whenever any judgment shall be entered in any such action
as aforesaid, execution shall thereupon issue for the enforcement and
collection of such judgment in the same manner as executions are
issued upon other judgments in actions on contract for the payment
of money only, except that when the judgment is in favor of the
claimant the execution shall direct the officer to sell the right, title
and interest which the owner or other party in interest had in the
premises at the time of filing the notice prescribed by the second
section of this act, and if the same shall be insufficient to satisfy
said judgment, then to collect such deficiency as shall remain out of
the personal property of such owner or party in interest, or if there
be two or more, of either of them, or if sufficient personal property
cannot be found, then out of the real property of such owner or
party in interest, or if there be two or more, of either of them, in

 

463

PART III.

Costs, etc.

Tran-
script.

Execu-
tion.
JUSTICE'S
MANUAL.

Duration
of lien.

Judgment.
how en-
forced.

Appeals.

Priority of
payment.

Liens, how
dis-

charged,

MECHANIC’ LIENS. [STATUTES

the county to which said execution is issued, on the day such judg-
ment was docketed in said county, or on any day thereafter. But
no such deficiency shall be collected out of any real property, unless
such deiency* shall amount to or exceed the sum of twenty-five
dollars.

[See 8§ 1240, 1241, Code Civ. Proc. and note, p. 451, ante. ]

§ 10. Every lien created under the provisions of this act shall con-
tinue until the expiration of six months from the time of filing the
notice prescribed in the second section of this act, unless sooner dis-
charged by the court or some legal act of the claimant in the pro-
ceedings; but if within such period of six months proceedings are
commenced to enforce or foreclose such lien, then such lien shall
continue until judgment shall be rendered thereon, and for one year
thereafter such lien shall also continue during the pendency of an
appeal and for one year after the determination thereof. When a
judgment is rendered as aforesaid it may be docketed in any county
of this State and enforced as if obtained in an action in a court of
record.

§ 11. Appeals from judgments rendered pursuant to this act may
be taken by either party in the same manner, within the same time,
and subject to the same rules and course of procedure as in appeals
taken in civil actions arising on contract, and with like costs and
disbursements, and the judgment thereon shall be enforced as judg-
ments on appeal are now enforced and collected. Such appeal shall
be had and taken only in the proceeding or action wherein judg-
ment shall be given or rendered, but such appeal shall not operate as
a stay of proceedings or in any manner to affect the foreclosure or
action of any other claimant or claimants then pending.

§ 12. The liens created by virtue of the provisions of this act
shall be paid and settled according to priority of notice filed with
the county clerk as directed by the second section of this act.

§ 18. All liens created by this act may be discharged as follows:
First, by filing with the county clerk a certificate of the claimant
or his successor in interest, acknowledged or proved in the same
manner as a conveyance of real estate, stating that the lien has been

 

*So in original.
464
UNREPEALED.] MECHANICS’ AND LABORERS’ LIENS.

paid or discharged; second, by depositing with the justice before
whom, or the clerk of the court in which proceedings shall be com-
menced to enforce or foreclose said lien, a sum of money equal to
double the amount claimed, which money shall thereupon be held
subject to the determination of such proceedings; or third, by an
entry of the county clerk made in the book of liens that the pro-
ceedings on the part of the claimant have been dismissed by the
court ora judgment rendered against the said claimant.

Cuap. 892.

AN ACT for the better security of railroad employees for
labor performed.

PasseD May 18, 1875 ; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Szcrion 1. Any person who shall hereafter perform any labor for
a railroad corporation shall, on filing with the county clerk of any
county iu which such railroad corporation is situated, or through
which the road of such corporation passes, the notice prescribed by
the second section of this act, have a lien for the value of such labor
upon such railroad track, rolling stock and appurtenances, and upon
the land upon which such railroad track and appurtenances are situ-
ated, to the extent of the right, title and interest of such railroad
corporation in the property existing at the time of filing the said
notice.

§ 2. Within thirty days after the performance and completion of
such labor, such person shall file a notice, in writing, with the county
clerk of the county where the property is located, specifying the
amount of claim, and the corporation against whom the claim is
made. The county clerk shall enter the particulars of such notice in
a book to be kept in his office, to be called the “lien docket,” with
the name of claimant, amount claimed, the name of such corpora-
tion against which such claim is made, and the date of the filing of
the notice, hour and minute. A fee of ten cents shall be paid to
said clerk on filing such lien, and said notice, when so filed, shall
thereafter operate as an incumbrance upon said property.

[59] 465

PART III.

Lien for
labor on
railroads

Notice to
be filed.

County
clerk to
enter; his
fee.
JUSTICH'S
MANUAL.

Evidence
of claim.

Action to
enforce
lien.

Duration
of lien.

Priority of
lien.

Discharge
of lien.

MECHANICS’ AND LABORERS’ LIENS. [sTaTuTESs

§ 38. Any person performing labor, in availing himself of the pro-
visions of this act, shall, upon the trial, or at the assessment of dam-
ages, produce evidence to establish the value of such labor, and that
the same was performed for such railroad corporation.

§ 4. Any laborer performing any work, or assignee thereof, may,
after such labor is performed, and the service of the notice required
by the first section of this act, bring an action in any of the courts
of the county in which said property is situated to enforce said lien,
requiring such railroad corporation to appear, by attorney, within
thirty days after such service and answer the same, or, in default
thereof, the claimant may take judgment for the amount of claim

-and costs.

§ 5. Every lien created under the provisions of this act shall con-
tinue until the expiration of one year, unless sooner discharged by
the court or some legal act of the claimant in the proceedings ; but
when a judgment is entered therein, and docketed with the county
clerk within said year, it shall be a lien upon the real property of
the railroad corporation against whom it is obtained, to the extent
that other judgments are now made a lien thereon.

§ 6. The liens created and established by virtue of the provisions
of this act shall be paid and settled according to the priority of the
notice filed with the county clerk, as directed by the second section
hereof.

Ԥ 7. All liens created by this act may be discharged as follows:

1. By filing with the county clerk a certificate of the claimant, or
his successors in interest, acknowledged or proved in the same man-
ner as a conveyance of real estate, stating that the lien has been
paid or discharged ; or

2. By depositing with the court or clerk of the court a sum of
money equal to double the amount claimed, which money shall be
thereupon held subject to the determination of the lien; or

3. By an entry of the county clerk, made in the book of liens, that
the proceedings on the part of the claimant have been dismissed by
the court in which it is brought, or a judgment rendered against the
said claimant; or

4. By an affidavit of the service of a notice from such railroad
corporation, or its attorney, to the claimant, requiring such claimant

466
UNREPEALED.] MECHANICS’ AND LABORERS’ LIENS. PART IIL,

to commence an action for the enforcement of said lien within twenty
days after service of said notice, and the failure of said claimant to
commence an action as aforesaid.

§ 8. Each and all the stockholders of such corporation shall be Stock. |
jointly and severally liable for the debts due or owing to any of its Hable.
laborers or servants, other than contractors for personal service for
ninety days’ service, or less than ninety days’ service, performed for
such corporation, but shall not be liable to an action therefor, before
an execution shall be returned unsatisfied in whole or in part against
the corporation, and the amount due on such execution shall be the
amount recoverable with costs against such stockholders, before such
laborer or servant shall charge such stockholders for such ninety
days’ service, or less than ninety days’ service, he shall give notice in
writing, within twenty days after the performance of such service,
that he intends to so hold him liable, and shall commence such action
therefor within thirty days after the return of such execution unsatis-
tied, as above mentioned; and every such stockholder against whom
any such recovery by such laborer or servant shall have been had,
shall have a right to recover the same of the other stockholders in
such corporation in ratable proportion to the amount of the stock
they shall respectively hold with himself.

[For other special lien laws, see (Canal boats) L. 1858, ch. 247 (4 Edm., 680);
L. 1864, ch. 412 (6 Edm., 287) ; (Boarding-house keepers) L. 1860, ch. 446 (4 Edm.,

. 681); L. 1876, ch. 319; (Por public work in cities) L. 1878, ch. 315; (For other
work in cities) L. 1880, ch. 486. The acts of 1878 and 1880 are given next.

Cuap. 315.

AN ACT to secure the payment of laborers, mechanics,
merchants, traders and persons furnishing materials to-
wards the performing of any public work in the cities of
the State of New-York.

PassED May 22, 1878; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Srcrion 1. Any person or persons who shall hereafter as laborer, 510.5 sor

mechanic, merchant or trader, in pursuance of, or in conformity with Toren,
467
JUSTION'S
MANUAL.

under
municipal
contracts.

Notice of
claim.

State-
ment.

Liens to
be en-
tered.

MECHANICS’ AND LABORERS’ LIENS. | [sraTuTES

the terms of any contract made between any person or persons, and’
any incorporated city in the State of New-York, perform any labor or
furnish any material towards the performance or completion of any
contract made with said city, on complying with the second section of
this act, shall have a lien for the value of such labor or materials or
either, upon the moneys in the control of the said city, due or to grow
due under said contract with said city to the full value of such claim
or demand, and these liens may be filed and become an absolute lien
to the full and par value of all such work and materials, to the extent
of the amount due or to grow due on said contract, in favor of every
person or persons who shall be employed or furnish materials to the
person or persons with whom the said contract with said city is made,
or the sub-contractors of said person or persons, their assigns or legal
representatives, provided that no city shall be required to pay a
greater amount than the contract price or value of the work and the
materials furnished, when no specific contract is made in the per-
formance of said work by the contractor.

§ 2. At any time before the whole work to be performed by the
contractor for the city is completed or accepted by the city, and
within thirty days after the same is so completed or accepted, any
claimant may file with the head of the department or bureau having
charge of said work, and with the financial officer of said city, notices
stating the residence of the claimant, verified by his oath or affirma-
tion, stating the amount claimed, from whom due, and if not due,
when it will be due, giving the amount of the demand after deduct-
ing all just credits and offsets, with the name of the person by whom
employed, or to whom materials were furnished ; also a statement
of the terms, time given, conditions of his contract, and also that
the work was done or materials were furnished to the said contractor,
and were actually performed or used in the execution and comple-
tion of the said contract with said city, but no variance as to the
name of the contractor shall affect the validity of the said claim or
lien.

§ 3. The financial officers of said city shall enter the claims in a
book kept for that purpose by him, called the “lien book.” Such
entry shall contain the name and residence of claimant, the name of

468
UNREPEALED.]| MECHANICS’ AND LABORERS’ LIENS. PARP Tit

the contractor, the amount and date of the filing and a brief desig-
nation of the contract upon which the claim is made.

§ 4. No lien provided for in this act shall be binding upon the action to
property therein described, unless an action be commenced within ie
ninety days from the filing of the same, and a notice of pendency of
said action be filed with the financial officer of the city.

§ 5. The lien shall attach from the time of filing thereof to the When
extent of the liability of the contractor for the claim preferred upon ttaches.
any funds which may be due or to grow due to the said contractor
from said city, under the contract against which the lien is filed.

§ 6. Any claimant who has filed the notice mentioned in the sec- Enforcing
ond section of this act, may enforce his claim against the said fund jis
therein designated and against the person or persons liable for the
debt by a civil action. Actions to determine or terminate said liens
may be commenced by the contractor or said city in any court of
competent jurisdiction.

§ 7. The plaintiff must make all parties who have filed claims, the Parties.
contractor, and the said city, parties defendant, and as to all parties “#/™*
against whom no personal claim is made, the plaintiff may, with the
summons, serve a notice stating briefly the object of action, and that
no personal claim is made. But all parties who have filed claims
under this act may, by answer in such action, set forth the same, and
the court in which the action is brought, may decide as to the extent,
justice and priority of the claims of all parties to the action.

§ 8. The court in which the action is brought shall determine the Judgment
validity of the lien, the amount due from the debtor to the con-
tractor under his contract, and from the contractor to the respective
claimants, and shall render judgment, directing that the said city
shall pay over to the claimants, for work done and materials furnished
in the execution of the said contract or contracts, whose claims or
liens it shall hold to be valid and just, in the order of their priority
as determined by said court to the extent of the sum found due to
said claimants from their contractor, so much of said funds or money
which may be due from the said city to the contractor, under his
contract, against which the lien is filed, as will satisfy their liens or
claims, with interest and costs, to the extent of the amount due from

said city to said contractor. The judgments rendered under this
469
J USTICH’S
MANUAL.

Execu--
tion.
Appeal,

Successive
liens.

Consoli-
dating
actions.

Costs.

Personal
actions.

Discharg—
ing liens.

“Contrac-
tor”’ de-
fined,

When act
to take
effect.

MECHANICS’ AND LABORERS’ LIENS. [sraruTes

act may be enforced by execution, and an appeal may be taken
therefrom in the same time and manner as in civil actions.

§ 9. In ease of successive liens, or a number of liens, in favor of
different persons, their rights and priorities shall be determined as
follows: Persons standing in equal degrees as co-laborers, or vari-
ous persons furnishing materials shall have priority according to the
date of the filing of their liens. When several lien notices are filed
for the same demand, the judgment shall provide for the proper pay-
ments according to priority, so that, under liens filed, double pay.
ments shall not be required. :

§ 10. When separate actions are commenced, the court in which
the first action was brought may, upon the application of the said
city, consolidate them.

§ 11. Costs in all actions shall rest in the discretion of the court,
and shall be awarded to or against the plaintiff or defendants, or any
or either of them, as may be just.

§ 12. Nothing contained in this act shall be construed to impair
or affect the right of any person to whom any debt may be due for
work done or materials furnished to maintain a personal action to
recover such debt against the person liable therefor.

§ 13. The lien may be discharged as follows: First. By filing a
certificate of the claimant, or his successor in interest, duly ac-
knowledged and proved, stating that the lien is discharged. Second.
By lapse of time when ninety days have elapsed since the filing of
the claim, and no action shall have been commenced to enforce the
claim. Third. By satisfaction of any judgment that may be
rendered in actions to foreclose said liens or claims.

§ 14. The term “contractor”, as used in this act, shall be con-
strued as meaning the person with whom the contract with the said
city is made, his assigns or legal representatives.

§ 15. This act shall take effect immediately ; but nothing herein
contained shall affect the validity of any claims or liens upon moneys
due or to grow due, under contracts made by cities prior to its pass-
age. All acts and parts of acts, inconsistent with the terms of this
act, are hereby repealed.

[See Leonard v. Reynolds, Hun, 73; Brinckerhoff v. Board of Education, 6
Abb. (N. 8.), 428; 8S. C., 37 How., 499; affd. sub. nom., Poillon v. Mayor, 47 N.Y.,
666 ; Van Denburgh v. Village of Greenbush, 4 Hun, 795 ; aff’d., 66 N. Y., 1.]

470
UNREPEALED.]| MECHANICS’ AND LABORERS’ LIENS.

Cuap. 486.

AN ACT to secure the payment of mechanics, laborers and
workmen who perform work, also persons furnishing
materials towards the erection, altering or repairing build-
ings, wharves, vaults or any other structure in the cities

of the State of New-York.

PassED May 28, 1880; three-fifths being present.

The People of the State of New- York, represented in Senate and
Assembly, do enact as follows :

Sxction 1. Any person or persons who shall hereafter, either as
contractor, sub-contractor or in any capacity, under or in pursuance
of, or in conformity with any contract, agreement or employment
by the owner, lessee or person in possession of any land in any of
the cities of the State of New-York, perform any work, labor or
services, or furnish any materials towards the erection, altering or
repairing of any house, vault, wharf, fence or any other structure, or
in grading, filling in, excavating or laying walks on any lots of land
in the cities of the State of New-York, shall, upon filing the notice
prescribed in the second section of this act, have a lien for the price
or value of such work, labor, services and materials upon such house,
vault, wharf, fence, or other structure, and appurtenances,. and
the lot upon which said grading or excavating is done or walk laid to
the extent of the right, title and interest of the said owner, lessee or
person in possession of said house, vault, wharf, fence or other struc-
ture and appurtenances, and the land upon which the same stand, at
the time of the filing of the notice of claim in the second section of
this act specified, or the successors in interest of such owner, lessee or
person so in possession taking* with notice of said lien.

§ 2. At any time before or within thirty days after the comple-
tion of the erection, altering or repairing, of any house, vault, wharf,
fence or structure, or grading, filling in, excavating, or laying walks
on any lot of land in the said cities of the State of New-York, the
persons so performing such work, labor or services, or furnishing
such materials, may file with the clerk of the county where the land
or premises are situated, a notice in writing stating his or their resi-

 

*So in original.

471

PART III.

Notice of
lien to
be filed.

Id; con-
tents
thereof.
JUSTICE'S
MANUAL.

Successive
ens

under one

contract.

Priority of
ifen.

County
clerk to

MECHANICS’ AND LABORERS’ LIENS. § [srarurszs

dences, the amount of the claim, from whom due, and if not due,
when it will be due, the person or persons against whom the claim is
made, the name of the owner, lessee, or person in possession of the
building (against whose interest a lien is claimed), but the failure to
state the name of the true owner, lessee or person in possession shall
not impair the validity of the lien; also a brief description of the
buildings or premises sufficient to identify the lands or premises
against which the lien is claimed. The said notice of lien shall be
verified by the person or persons making the claim, or his or their
agent, or any other person, to the effect that the statements therein
contained are true, to the best of his or their knowledge, information
and belief. Successive liens may be filed for work, labor, services and
materials done and furnished, under one contract or employment, but
the filing of any such lien or liens shall not entitle the person so filing
the same to recover judgment for the amount of such lien or liens
unless he shall be entitled to receive payment by the terms of the
contract, or agreement, or employment, and in case of sub-contractors
or persons doing work or furnishing materials to contractors, no
judgment shall be rendered for any greater amount than the amount
which shall be due from the owner to the contractor at the time of
the filing of the lien, or which may become due afterwards, or which
by the terms of the contract or agreement shall be due at the time
of the rendering of such judgment.

§ 8. Where an owner of lands contracts with a builder for the
sale of lots and the erection of buildings thereon, and agrees to ad-
vance moneys towards the erection of such buildings, the lien herein-
before authorized shall have priority to all advances made after the
filing of said notices of lien. And the lien shall attach to the right,
title and interest of the owner in said building and land to the ex-
tent of all advances which shall have become due after the filing of
such lien, and shall also attach to and bea lien on the right, title
and interest of the person so agreeing to purchase said land at the
time of the filing of said notices of lien.

§ 4. The county clerk shall enter in a lien docket the name and
residence of the claimant, the person against whom claimed, the
amount claimed, the date of filing, and a brief description of the

ARQ
UNREPEALED.] MECHANICS’ AND LABORERS’ LIENS.

premises affected. He shall be entitled to receive a fee of ten cents
for each lien filed.

§ 5. Liens shall in all cases cease after one year from date of filing
unless an action shall be commenced, and a notice of lis pendens filed
with the clerk of the county wherein the premises are situated, or
an order made continuing the lien for another year; in the latter
case the county clerk shall, upon filing such order, make a new
docket of such lien. Successive orders and new dockets may be
made in the discretion of the court.

§ 6. The lien may be discharged as follows:

1. By filing a certificate of the claimant or his successor in interest
acknowledged or proved in the same manner as the satisfaction of a
mortgage, stating that the lien is discharged.

2. By depositing with the county clerk, if before suit is com-
menced, a sum of money equal to the amount claimed; and if suit
shall have been commenced, a sum equal to the amount claimed;
and such sum in addition as shall be ordered by a judge of the court
in which the action shall have been commenced, as security for the
costs of the action; such deposit, after suit brought, to be made on
notice or on an order to show cause directed to the plaintiff in the
action or his attorney.

3. By the expiration of one year after the filing of said lien with-
out any order being made continuing the same or notice of lis
pendens filed as aforesaid.

§ 7. The liens provided under this act shall be enforced by civil
action commenced in any court of record in said city, having equitable
jurisdiction, by any person, claimant, the original or sub-contractor,
or an assignee thereof, or contractor against any property affected
thereby, at any time within one year from the filing of such lien.
Such action shall be commenced, carried on and judgment entered
and enforced as provided in an action to foreclose a mortgage in the
Code of Civil Procedure, and the plaintiff shall make all other
parties who have filed subsequent liens under this act, or have any
prior record, claims or liens upon said premises and their appurten-
ances, defendants in such action. And the court shall determine the
priority of the liens, the amounts due thereon, and the rights of the
respective parties, and render judgment accordingly. The court

[60] 473

PART III.

Duration
of lien.

Lien, how
is-
charged.

Lien, how
enforced.
JUSTICH’S
MANUAL.

Consoli-
dating
actions.

Appeals.

Public
buildings
excepted.

Buffalo
excepted.

When act

takes
effect.

Deer.

Traps for
deer.

GAME LAWS. [STATUTES

may also render personal judgment against or in favor of any party
to the action. Costs for or against the parties litigant shall be in
the discretion of the court.

§ 8. When separate actions are brought to foreclose liens against
the same property, the court may, on motion, consolidate them.

§ 9. Appeals in actions to enforce liens, provided for in this act,
may be taken in the same manner and within the time, and shall be
governed by the same rules and practice as prevail in actions for the
foreclosure of mortgages.

§ 10. Buildings and property used for public purposes are especially
excepted from the operation or effect of this act.

§ 11. This act shall not apply to the city of Buffalo.

§ 12. This act shall take effect immediately.

Proceeding to enforce penalties for violation of game laws.
Cuap. 534.

AN ACT for the preservation of moose, wild deer, birds,
fish and other game.

PassEp June 20, 1879 ; three-fifths being present.

The People of the State of New- York, represented in Senate and
Assembly, do enact as follows :

Sxction 1. No person shall kill or chase any wild deer in any part
of the State, save only during the months of August, September,
October and November in any year. No person, corporation, asso-
ciation or company shall sell, expose for sale, transport, or have in
his or her possession, in this State, after the same has been killed,
any wild deer or fresh venison, save only during the months of
August, September, October and November. No person shall, at
any time, in this State, kill any fawn during the time when it is in
its spotted coat, or have in his or her possession the carcass or skin
of any such fawn after the same shall have been killed. No person
shall, in any part of this State, set any trap, spring gun or other
device, at any artificial salt lick or other place for the purpose of
trapping and killing wild deer. It shall not be lawful to pursue
deer with dogs in any county of this State, except from the fifteenth
day of August to the first day of November. It shall not be lawful

474
UNREPEALED. | GAME LAWS. PART III.

to pursue deer with dogs in the county of St. Lawrence at any time. Ss.
Tt shall be lawful for any person to shoot or kill any dog while in

actual pursuit of any deer in violation of the provisions of this act.

It shall not be lawful for any person to kill, or cause to be killed, Buffolk
any wild deer in the counties of Suffolk and Queens, at any time Queens,
within five years from the passage of this act. Any person offend- Penalty.
ing against any of the preceding provisions of this section shall be
deemed guilty of a misdemeanor, and in addition thereto shall be

liable to a penalty of fifty dollars for each wild deer or fawn so

killed, or pursued or trapped, and for every spring gun so set, or

wild deer or fawn skin or fresh venison had in his or her possession,

and may be proceeded against therefor in any county of the State in

which the offender or prosecutor may reside.

§ 2. No person shall at any time or place within this State, take, moose.
chase with dogs, or kill any moose, nor shall any person sell or ex-
pose for sale or have in his or her possession, any moose after the
same has been so taken or killed. Any person violating this section
shall be deemed guilty of a misdemeanor, and in addition thereto
shall be liable to a penalty of fifty dollars for each offence.

§ 3. No person shall kill wild deer by crusting, or enter any place crusting
where wild deer are yarded with the intent to kill or destroy the or
same at any time. Any person offending against any of the pro-
visions of this section shall be deemed guilty of a misdemeanor, and
in addition thereto shall be liable to a penalty of one hundred dol-
lars for each wild deer so killed or destroyed.

§ 4. No person shall kill, or expose for sale, or have in his or her wiaauck,
possession, after the same has been killed, any wild duck, goose or brant.
brant, in any of the waters of this State, between the first day of May
and the first day of September, except that in the waters of Long
Island none of said birds shall be killed between the first day of May
and the first day of October. Any person violating any of the pro-
visions of this section shall be deemed guilty of a misdemeanor, and
in addition thereto shall be liable to a penalty of twenty-five dollars
for each and every wild duck, goose or brant Killed, or had in his
possession; and any person who shall, at any time, kill any of
said birds between sunset and day-light, or pursue or fire at any of

said birds with the aid of any light or lantern, shall be deemed
475
JUSTICE'S
MANUAL.

Id., kill-
ing by
swivel
gun, net
or device.

Floating
batteries,
decoys,
bow-
houses,
etc.

Penalty.

Excepted
waters.

Killing
from sail
or steam
vessels.

pet ‘
are.
Rabbit.

GAME LAWS. [STATUTES

guilty of a misdemeanor, and in addition thereto shall be liable to a
penalty of fifty dollars for each offence against this provision. And
any person found between sunset and sunrise on the water with a
gun and lantern in the act of attempting to pursue, fire at, or kill
any such birds, shall be deemed guilty of a violation of this section.

§ 5. No person shall, at any time, kill any wild duck, goose or
brant, with any device or instrument known as a swivel or punt
gun, or with any gun other than such guns as are habitually raised
at arm’s length and fired from the shoulder, or use any net, device
or instrument, or gun other than aforesaid, with the intent to cap-
ture or kill any such birds. Any person violating any of the pro-
visions of this section shall be deemed guilty of a misdemeanor,
and in addition thereto shall be liable to a penalty of fifty dollars.

§ 6. No person shall use any floating battery, machine or other
device, whereby the gunner is concealed, for the purpose of killing
any wild fowl, or shoot out of any such floating battery, machine or
device, at any wild'goose, brant or duck, in any of the waters of this
State, or use any decoy or construct any bow-house, at a greater
distance than twenty rods from the shore, for the purpose of shoot-
ing at or killing any such birds. Any person violating any of the
provisions of this section shall be deemed guilty of a misdemeanor,
and in addition thereto shall be liable to a penalty of fifty dollars
for each offence. But notliing in this section shall apply to the
waters of the Great South bay, west of Smith’s point, or the waters
of Peconic bay, or Shinnecock bay, or Lake Ontario, or the River
St. Lawrence, or the Hudson river below Albany.

§ 7. No person shall sail for any wild fowl, or shoot at any wild
goose, brant or duck from any vessel propelled by steam or sails, or
from any other structure attached to the same, in any of the waters
of this State, except Long Island Sound, Lake Ontario, and the
Hudson river below Nyack. Any person violating any of the pro-
visions of this section shall be deemed guilty of a misdemeanor, and
in addition shall be liable to a penalty of ten dollars.

§ 8. No person shall kill, expose for sale, or have in possession
after the same has been killed, any quail, between the first day of
January and the first day of November, except as hereinafter pro-
vided ; no person shall kill or expose for sale, or have in possession

476
UNREPEALED. | GAME LAWS.

after the same has been killed, any hare or rabbit, between the first
day of February and the first day of November, nor at any time
kill or hunt any hare or rabbit with ferrets. This shall not prevent
the owners or occupants of nurseries or orchards, in any of the counties
of this State, from trapping or hunting hares or rabbits, with ferrets
or otherwise, within the limits of said nurseries or orchards, or any
forest or field adjoining such nurseries or orchards, and the possession
of any hare or rabbit may be excused by any person proving the same
to have been caught or killed within the limits aforesaid. No person
shall kill any quail in the counties of Montgomery, Schenectady, Sara-
toga or Albany, within two years from the passage of this act. Any
person violating either of the provisions of this section shall be
deemed guilty of a misdemeanor, and, in addition thereto, shall be
liable for any violation of the first provision to a penalty of twenty-
five dollars for each quail, hare or rabbit so killed, exposed for sale, or
had in possession.

[As amended by L. 1880, ch. 584.]
§ 9. No person shall kill or expose for sale, or have in his or her pos-

session, after the same has been killed, any woodcock, between the
first day of January and the first day of September, in the counties
of Oneida and Herkimer, and in other parts of the State between
the first day of January and the first day of August in each year,
except as hereinafter provided. It shall not be lawful for any per-
son to kill or expose for sale, or have in his or her possession, after
the same has been killed, any black or gray squirrel, between the
first day of February and the first day of August in each year. Any
person violating either of the provisions of this section shall be
deemed guilty of a misdemeanor, and in addition thereto shaJl be
liable to a penalty of twenty-five dollars for each bird or animal
so killed or-had in possession.

§ 10. No person shall kill or expose for sale, or have in his or her
possession, after the same has been killed, any ruffed grouse, com-
monly called partridge ; or pinnated grouse commonly called prairie
chicken between the first day of January and the first day of Sep-
tember, except as hereinafter provided. Any person violating any
of the provisions of this section shall be deemed guilty of a misde-

4v7

PART II.

Wood-
cock.

Squirrel.

Grouse.
JUSTICES GAME LAWS. [STATUTES

meanor, and in addition thereto shall be liable to a penalty of twenty-
five dollars for each bird so killed or had in possession.
Taking § 11. No person shall, at any time or place within this State, take

grouse or

quail with or kill any ruffed grouse, commonly called partridge, or any pin-

tc. a :
ce nated grouse, commonly called prairie chicken, or any spruce grouse,

commonly called Canada partridge, or any quail, with any net, trap
or snare, or set any such net, trap or snare for the purpose of taking
or killing any of such birds; nor shall any person willfully sell, or
expose for sale, or have in his or her possession any of the said birds
after the same shall have been so taken or killed. Any person
violating any of the provisions of this section shall be deemed guilty
of a misdemeanor and in addition thereto shall be liable to a penalty

of ten dollars for each bird so taken and killed or had in his pos-
session. And it shall be lawful for any person to take and destroy
any such nets, traps or snares whenever found set.

Eagle, § 12. No person shall at any time, in this State, kill or expose for

wood-

pecker, sale, or have in possession after the same is killed, any eagle, wood-
song birds,

au pecker, nighthawk, yellow-bird, wren, martin, oriole, or any song

bird, under a penalty of five dollars for each bird so killed, exposed
for sale, or had in possession.
[As amended by L. 1880, ch. 584.]
Robin, § 13. No person shall kill, or expose for sale, or have in posses-

meadow-
lark, star- gion after the same has been killed, any robin, meadow-lark or star-

~~ ling, save only during the months of October, November, Decem-
ber, under a penalty of five dollars for each bird so killed, exposed
for sale, or had in possession.

[As amended by L, 1880, ch. 584.]

§ 14. The last two sections shall not spply to any person who shall
kill any bird for the purpose of studying its habits or history, or
having the same stuffed and set up as a specimen ; or to any person

who shall kill on his own premises any robins In the act of destroy-

Id ; excep-
tions.

ing fruit or grapes.
Desteay § 15. No person shall willfully destroy or rob the nest of any
robbing wild bird, whatever, except crows, blackbirds, hawks, and owls, save
net only where it may be necessary to protect dwelling-houses or prevent
their defacement, Any person violating this section shall be deemed

478
UNBEPEALED. | GAME LAWS.

guilty of a misdemeanor, and in addition thereto shall be liable to a
penalty of five dollars for each offence.

§ 16. Any person who shall knowingly trespass upon cultivated
or inclosed lands for the purpose of shooting or hunting any game
protected by this act, or shall take any fish from private ponds ox
private streams not stocked in whole or in part by the State, or aicex
public notice has been given by the owner thereof as provided in the
following section, shall be liable to such owner or occupant in addi-
tion to the actual damages sustained, exemplary damages, to an
amount not exceeding twenty-five dollars.

§ 17. The notice referred to in the preceding section shall be
given by erecting and maintaining sign-boards, at least one foot
square, upon every fifty acres of land upon the lot lines thereof, or
upon the shores or bank of any lake, stream or pond, in at least two
conspicuous places on the premises ; such notices to have appended
thereto the name of the owner or occupant, and any person who
shall tear down, or in any way deface or injure any such sign-board,
shall be guilty of a misdemeanor, and in addition thereto shall be
liable to a penalty of twenty-five dollars.

§ 18. No person shall at any time catch any speckled trout with
any device save that of angling, except in waters which are wholly
private, and only then by permission of the owner thereof; nor shall
any person set or draw any net, or seine of any description, or use
any set-line in any lake, pond or stream inhabited by brook trout,
or have on the shores thereon, any net, seine, set-line or other un-
lawful device for the taking of fish, except as above provided.
And no person shall at any time, or in any way, catch any speckled
trout or salmon trout through the ice, except in waters wholly pri-
vate, prior to the first day of April. Any person who shall offend
against any of the provisions of this section shall be deemed guilty
of a misdemeanor, and in addition thereto shall be liable to a penalty
of twenty-five dollars for each offence ; and all nets, seines and other
devices forbidden to be used by this section, are hereby declared
contraband, and any person finding the same in any place where
they are forbidden to be used is authorized to destroy such contra-
band articles, and no action for damages shall lie against him for

such destruction.
479

t

PARTIII.

Trespass-
ing.

Notice not
to tres-
pass,

Catching
trout.
JUSTICE’S
MANUAL.

Speckled
trout.

Salmon
trout.

Bass.

GAME LAWS. [STATUTES

§ 19. No person shall kill, or expose for sale, or have in his or her
possession after the same has been killed, any speckled trout, save
only from the first day of April to the first day of September.
Any person violating any of the provisions of this section shall be
deemed guilty of a misdemeanor, and in addition thereto shall be
liable to a penalty of twenty-five dollars, for each trout so killed,
exposed for sale or had in possession.

§ 20. No person shall kill or expose for sale, or have in his or her
possession after the same has been killed, any salmon trout or lake
trout, caught in the inland lakes of this State, in the months of Oc-
tober, November, December, January, February, and March, and in.
Lake George the additional month of April. Any person violating
any of the provisions of this section shall be deemed guilty of a
misdemeanor, and in addition thereto shall be liable to a penalty of
ten dollars for each fish so killed, exposed for sale or had in posses-
sion.

§ 21. No person shall catch or kill any black bass in the waters
of Lake Mahopac or Dutchess county between the first day of Jan-
uary and the first day of July, or Lake George between the first
day of January and the twentieth day of July, or catch, kill, or ex-
pose for sale, or have in his or her possession after the same has
been killed, any black bass or striped bass weighing less than one-
half pound at any time, or any black bass, Oswego bass, or musca-
longe in any other waters of the State, between the first day of
January and the first day of June, unless alive for artificial propa-
gation, or the stocking of other waters, except that bass and musca-
longe may be caught in the St. Lawrence, Clyde, Seneca and Oswego
rivers, Lake Erie, Lake Ontario, Lake Conesus and Niagara river
above Niagara Falls, on the American side, between the twentieth
day of May and the first day of January ; nor shall any person catch
or kill any black bass in the waters of Schroon lake or river, or
Paradox lake, in the counties of Essex or Warren between the first
day of January and the first day of July. Any person violating
any of the provisions of this section shall be deemed guilty of a
misdemeanor, and in addition thereto shall be liable to a penalty
of ten dollars for each fish.

480
UNREPEALED. ] GAME LAWS.

§ 22. No person shall catch any bass, trout or other fish, in any
of the waters of this State by shutting or drawing off any portion of
said waters nor shall any person take any fish in the waters of the
Tonawanda creek between Moulton’s dam, in the county of Genesee,
and Cotton’s dam, in the county of Wyoming, fora period of five
years after the passage of this act. Any person violating . this sec-
tion shall be deemed guilty of a misdemeanor, and in addition
thereto shall be liable to a penalty of twenty-five dollars for each
offence.

§ 23. No person shall kill or catch, or attempt to kill or catch,
any fish, except minnows, in the waters of Lake Ontario, on the
American side thereof, for the distance of three miles from the
mouth of the Niagara river, or in Onondaga, Oneida, Seneca or
Cross lakes, or in any of their outlets or tributaries, or in the Amer-
ican waters of the Niagara river, aboye Niagara Falls, in any way or
manner, or by any device whatever, except with that of hook and
line, and any person catching or killing any fish, except minnows, in
any of the above-named waters, shall be liable to a penalty of one
hundred dollars for each and every offence. No person shall kill or
catch, or attempt to kill or catch, any fish except minnows, bull-
heads, eels, suckers and catfish, in any other of the fresh waters or in
any of the canals in this State, or in the American waters of the St.
Lawrence river, in any way or manner, or by any device whatever,
except that of angling by hook and line, save only in the following
waters, namely: The Hudson river below the dam at Troy; Black
lake, in the county of St. Lawrence; St. Regis river, Grass river
and Racket river, below the line of the Ogdensburgh and Lake
Champlain railroad, and in Lake Ontario, except Great Sodus bay,
Port bay, East bay, in the county of Wayne, Henderson harbor, or
Henderson bay, in the county of Jefferson; and also except in Lake
Champlain, during the month of October and the first fifteen days
in November ; and also except in the waters of the Walkill river,
within the county of Ulster, wherein it shall be lawful for any per-
son or persons of one and the same family or household to possess
and fish for suckers and eels in the waters of said river, during the
months of March and April, and October and November, with a
single fyke, the meshes of which shall not be less than one inch

[61] 481

PART III.

Fish not
to be
taken by

drawing
off water.

Tona-
wanda
creek.

Cotton’s
dam.

Taking
fish by
other
means
than ang-
ling;
where
not al-
lowed.
JUSTICE’S
MANUAL.

Penalty.

. Possession
of nets,
etc., on
shore of
trout, etc.,
waters,

Deposits
in streams
or waters.

GAME LAWS. [STATUTES

And, also, except all that part of the waters of Lake Ontario,
together with its bays and inlets, lying and being in the county of
Jefferson, and in that part of Oswego county, lying between its
Jefferson county line and the westerly line of the town of Mexico,
and within one-half mile of the outlet or mouth of Salmon river,
saving and excepting the shoals adjacent to Henderson bay, on the
lake side from the main shore, to and including Smoke island, except
during the months of November and December, which waters are
hereby released from the operation of the provisions of sections
twenty-three and twenty-six of the act hereby amended. No person
shall knowingly sell or purchase, or have in his or her possession, any
fish killed, caught or taken from any such waters contrary to the pro-
visions of this section. Any person violating the provisions of this
section shall be deemed guilty of a misdemeanor, and in addition
thereto shall be liable to a penglty of twenty-five dollars for each
and every such offence. And all nets, seines, traps, weir, or other
devices, forbidden by this section, are hereby declared contraband,
and any person finding the same in any place where they are forbid-
den, is hereby authorized to destroy such, contraband articles, and no
action for damages shall lie against him for such destruction.

[As amended by L. 1880, ch. 531.]

§ 24. Any person having in his or her possession on the shores of
any lake, or on the banks of or wpon any waters inhabited by salmon,
salmon trout, lake trout, black or Oswego bass, or muscalonge, dur-
ing the closed season, without the permission of the commissioners
of fisheries, any snares, nets, stake polls,* or other devices used in
unlawfully taking such fish, shall be deemed guilty of a misdemeanor,
and in addition thereto shall be liable to a penalty of twenty-five
dollars; but nothing herein contained shall apply to that portion of
the Hudson river south of the dam at Troy, or to Lake Ontario, or
to the waters of the Walkill river in Ulster county.

[As amended by L. 1880, ch. 531.]

§ 25. No person, association, company or corporation shall throw
or deposit, or permit to be thrown or deposited, any dye-stuff, coal
tar, refuse from gas-houses, sawdust, lime or other deleterious sub-
stance, or cause the same to run or flow into or upon any of the
rivers, lakes, ponds, streams or any of the bays or inlets adjoining

 

* So in original.

482
UNREPEALED. | GAME LAWS.

the Atlantic ocean, within the limits of this State. Any person who
shall violate this section, or any member of any such company, asso-
ciation or corporation who shall authorize and direct any such viola-
tion, shall be guilty of a misdemeanor, and in addition thereto shall
be liable to a penalty of fifty dollars for each offence. But this sec-
tion shall not apply to streams of lowing or tide-water which con-
stitute the motive power of the machinery of manufacturing
establishments where it is absolutely necessary for the manufactur-
ing purposes carried on in such establishments to run the refuse
matter and material thereof into such stream.

§ 26. No person shall fish in any of the waters or canals of this
State with seines, gill nets or fykes, the meshes of which shall be
less than two and one-half inches, except in the waters excepted
in the first section of this act and except in the following waters:
In the waters over which Richmond county has civil jurisdiction,
the meshes shall not be less than two inches; in the bays and salt
waters, estuaries and rivers of Long Island, not less than two and
one-half inches, but this prohibition shall not apply to nets used in
taking “menhaden”, nor to ponds where they are permitted by law;
in Lake Erie and Lake Ontario, the meshes shall not be less than
four and one-half inches; in the Hudson river below the dam at
Troy, the meshes shall not be less than two and one-half inches,
except seines, fykes or other nets used in catchng bait fish;
in Coney Island creek to the mouth therof, extending out into
Gravesend bay, one-halt mile each way, the meshes of which shall
be four inches square, except that for eel and flounder fishing, hoop
nets with suitable meshes may be used within said bay between the
fifteenth day of October and the first day of April. No person shall
set or take any fish by any device known as pound or trap net, in the
waters of Great South bay, except so much thereof as is within the
jurisdiction of the town of Islip, and not included in the Brook-
haven and Smith patents, and the waters of Lake Erie, or bring
any fish so taken in such waters to the shore along the same, or be
engaged in procuring or preparing for market any such fish, or any
part thereof, or exposing fish taken in such nets, for sale in the
counties bordering on such waters. Nothing in this section shall be

construed as permitting the drawing of seines in the waters of the
483

PART III.

Excep-
tions,

Size of
meshes of
nets and
fykes.
JUSTICE’S
MANUAL.

Private
parks.

GAME LAWS. [STATUTES

Hudson river, between the upper dock at the village of Sing Sing
and Croton Landing, in the town of Cortland, nor in any of the
waters between the above-named points, nor in any portion of the
Croton river, between the first day of June and the first day of
October of any year, which drawing is hereby expressly forbidden.
No* shall any thing in this section be construed to prevent the set-
ting of fykes in the Walkill river, in Ulster county, during the
months of March and April and October and November. Any
person violating the provisions of this section shall be deemed
guilty of a misdemeanor, and in addition thereto shall be liable to a
penalty of fifty dollars.
_ [As amended by L. 1880, ch. 581.]

§ 27. Any owner or owners or lessee or lessees of lands or lands
and water, whether such owner or owners, lessee or lessees, be an
individual or individuals, association or associations, society or socie-
ties, corporation or corporations, desiring to lay out, devote or dedi-
cate such lands or lands and water for the purpose of a private park
or territory for propagating or protecting fish, birds or game, shall
publish at least once a week for three months, in a paper of general
circulation printed in the county or counties within which such lands
or lands and water are situated, a notice describing the same. And
there shall be inserted in said notice so published, a clause declaring
that such lands or lands and water will be used as a private park for
the purpose of propagating and protecting fish, birds and game;
and it shall be the duty of such owner or owners, lessee or lessees,
at any time during the publication of said notice, or within six
months after the final publication thereof, to post or put up notices
or sign-boards warning all persons against trespassing upon such pri-
vate territory, which notices or sign-boards shall not be less than one
foot square and placed not more than forty rods apart along the
entire boundary of said private park or territory, when the same
shall consist entirely of land, and when said private park or terri-
tory shall consist of both land and water, the notices aforesaid sallh*
be placed in conspicuous places upon said territory, so there shall be at
least one notice or sign-board so placed or erected for every one hun-
dred acres of said territory. And when the property to be protected

 

* So in original.

484
UNREPEALED. | GAME LAWS.

shall consist of a lake or pond only, said notices shall be placed in
at least four conspicuous places upon the shore of such lake or pond.
But when said territory shall be inclosed by a fence or fences of
reasonable capacity for protection of said premises, then notices or
sign-boards of the dimensions aforesaid shall be placed on said fence
or fences not more than one-half mile apart. After any such terri-
tory shall be dedicated and designated as aforesaid, all fish, birds and
game, of, in or upon said territory shall be the property of the
owner or owners, lessee or lessees thereof.

[As amended by L. 1880, ch. 531.]

§ 28. After such grounds are inclosed in such manner as to render
such fish or game private property, no person shall catch or take
from or kill, any fish, birds or game, in or upon said grounds, or the
waters thereon, or put on such grounds, or in any such waters, any
poisonous or other deleterious substance, or piscivorous fish, or let
off the waters from said grounds, with intent to take fish, or to
destroy the fish or eggs placed in such waters, or deface or destroy
any sign or notice posted or put up as aforesaid ; or place any object
against or near such fence or inclosure, with intent to aid dogs or
other animals to get into said grounds, or to enable animals kept
therein to escape therefrom, or enter upon any such ground with
the implements or weapons for catching, taking or killing fish, birds or
game, with the intention of catching, taking or killing any fish, birds
or game thereon. Any person found guilty of any offence against
this section shall be deemed guilty of a misdemeanor, and in addi-
tion thereto shall be liable to the owner or lessee in addition to the
actual damages incurred, in exemplary damages to the amount of
twenty-five dollars.

§ 29. The commissioners of fisheries of this State are hereby re-
quired and directed to erect and maintain, at a distance of eighty
rods from any fishway established or constructed by the State, in any
stream or water-course within its boundaries, sign-boards, on which
shall be plainly painted or inscribed the words following, to wit,
“eighty rods to the fishway; all persons are by law prohibited from
fishing in this stream between this point and the fishway”; said
sign-board to be erected on both sides of the stream above and below

the fishway.
485

PART III.

Id.; tak-

ing fish or
ame
rom,

Slene at]
fishways.
JUSTICE’S
MANUAL.

State
fisheries.

State
bounty for
wolves
and pan-
thers,

Duty of
justice of
the peace.

Hunting
on Sun-
day.

GAME LAWS. [STATUTES

§ 30. No person shall catch, take or kill, or attempt to catch, take
or kill, with any implements or device whatever, any fish within a
distance of eighty rods from any fishery established by the State,
within any stream or water-course within its boundaries, or tear
down or deface or destroy any sign-board put up by the commis-
sioners of fisheries of this State. Any person violating any of the
provisions of this section, provided the sign-boards mentioned in the
preceding section shall have been erected and maintained as directed
by this act, shall be deemed guilty of a misdemeanor, and in addition
thereto shall be liable to a penalty of twenty-five dollars.

§ 81. A State bounty of thirty dollars for a grown wolf, fifteen
dollars for a pup wolf, and twenty dollars for a panther, shall be paid
to any person or persons who shall kill any of said animals within
the boundaries of this State. The person or persons obtaining said
bounty shall prove the death of the animal so killed by him or them,
by producing satisfactory affidavits, and the skull and skin of said
animal, before the supervisor and one of the justices of the peace of
the town within the boundaries of which the said animal was killed.
Whereupon said supervisor and justice of the peace, in the presence
of each ‘other, shall burn and destroy the said skull, and brand the
said skin so that it may be thereafter identified, and issue to the
person or persons claiming and entitled to the same, an order on the
treasurer of the county to which said town belongs, stating the kind
of animal killed, the date of killing of the same, and the amount of
the bounty to be paid by virtue of the within section of this act, and
the county treasurers of the State are hereby authorized and directed
to pay all orders issued as aforesaid; and all orders issued in the
manner aforesaid, and paid by the treasurer of any county in this
State, shall be a charge of said county against the State, the amount
of which charge, on delivery of proper vouchers, the comptroller is
hereby authorized and directed to allow in the settlement of taxes
due from said county to the State.

§ 32. There shall be no shooting, hunting, trapping or caging of
birds or wild beasts, or having in possession in the open air for such
purpose the implements for the shooting, hunting, trapping or caging
of the same, on the first day of the week, called Sunday; and any

person violating either of the provisions of this section shall be.
486
UNREPEALED. | GAME LAWS.

deemed guilty of a misdemeanor, and in addition thereto shall be
liable to a penalty of twenty-five dollars for every such offence.

§ 33. All penalties imposed by this act may be recovered, with
costs of suit, by any person in his own name, or by any society in
its name, upon such society giving security for costs, before any
justice of the peace in the county where the offence was committed,
or in an adjoining county, when the amount does not exceed the
jurisdiction of such justice, or when such suit shall be brought in the
city of New-York, before any justice of the district court, or of the
marine court of said city; and such penalties may be recovered in
the like manner in any court of record in the State, but on recovery
by the plaintiff in such case for a less sum than fifty dollars, the
plaintiff shall only be entitled to costs to an amount equal to
the amount of such recovery ; and it shall be the duty of any district
attorney in this State, and he is hereby required to prosecute or to
commence actions, in the name of the people of this State, for the
recovery of the penalties allowed hereby, upon receiving proper
information ; and in all actions brought by such district attorney,
one-half of the penalty recovered shall belong to the persons giving
information on which the action is brought, and the other half shall
be paid to the treasurer of the county in which such action is
brought. All judgments recovered in pursuance of the provisions

of this act, with the interest thereon, may be collected and the pay- f

ment thereof enforced by execution against the person; and any
person imprisoned upon any such execution shall be so imprisoned
for a period of not less than five days, and at the rate of one day for
every dollar or fractional part thereof of such judgment and interest
when the same exceeds five dollars; and such imprisonment shall
not be satisfaction of such judgment, but no person shall be more
than once imprisoned upon any such judgment or execution, and
two or more penalties may be included in the same action.

§ 84. Any person who shall be found guilty of a misdemeanor
under any of the provisions of this act shall, upon conviction, be
punished by fine of not less than five dollars, nor more than at the
rate of one dollar for every dollar of the penalty provided by the
section so violated, when the same exceeds five dollars, or by im-
prisonment in the county jail or penitentiary for a period of not

487

PART III.

Penalties,
how re-
covered.

Judg-
ments,

ow
enforced.

Punish-
ments for
misde-
meanors.
JUSTICE'S
MANUAL.

Jnrisdic-
tion.

Fines,
how dis-
Posed of.

Tax to
enforce
law.

Duty of
sheriff,
etc.

Penalty
for failing
to enforce
law,

Selling
and hay-
ing game.

GAME LAWS. [STATUTES

less than five days nor more than at the rate of one day for every
dollar of any such penalty, or by such fine and imprisonment, in the
discretion of the court.

§ 35. Courts of special sessions in towns and villages, and the sev-
eral courts in cities having jurisdiction to try other misdemeanors
shall have jurisdiction to try offenders in all cases occurring under
this act in the same manner as in other cases where they now have
jurisdiction, and to render and enforce judgment accordingly. All
fines recovered by the provisions of this act shall be paid over by
the court receiving the same to the treasurer of the county wherein
the offence is committed, except in the county of New-York, and
in the county of New-York to the chamberlain in the city of New-
York, within ten days after their reception by such court, and such
moneys shall be kept by such treasurer or chamberlain as a separate
fund to be applied to the enforcements of the provisions of this act in
such manner as the board of supervisors of the several counties,
except in the city and county of New-York, and in such city and
county the board or aldermen may direct either for the employment
of special detectives or the payment of rewards for the detection
and arrest of offenders, and each of the boards of supervisors of this
State shall have power to raise by tax, in the same manner as other
taxes are raised for county purposes, such sum not exceeding one
thousand dollars in any year, as they shall deem proper to further
aid in the enforcement of the provisions of this act. It shall be the
duty of every sheriff, under-sheriff, deputy-sheriff, officer of police,
or policeman and of every constable and every game constable and
every bay constable to arrest wherever found within this State, with-
out warrant, any person whom they shall find violating any of the
provisions of this act, and immediately to bring such offender before
the nearest magistrate having jurisdiction of the offence for exam-
ination and for trial. Any officer or magistrate who shall neglect,
or refuse diligently to enforce the provisions of this act, upon proper
information and complaint, shall be deemed guilty of a misdemeanor,
and shall be punished by a fine or imprisonment, or by both such
fine and imprisonment, in the discretion of the court.

§ 36. Any person may sell or have in his or her possession any

hare or rabbit or any woodcock, any ruffed grouse, commonly called
488
UNREPEALED, | GAME LAWS.

partridge, any pinnated grouse, commonly called prairie chicken,
and any quail from the first day of January to the first day of Feb-
ruary, and any fresh venison from the first day of December to the
first day of January, and shall not be liable for any penalty under
this act, provided he proves that such birds or game were killed
within the period provided by this act.

§ 37. Itshall be lawful for the board of supervisors of any county,
at their annual meeting, to make any regulations or ordinances pro-
tecting other birds, fish, or game than those mentioned in this act 5
and, also, for the further protection of such birds, fish, or game as
are in this act mentioned, except wild deer, and to this end to
prohibit hunting or fishing in particular localities or waters lying
within their respective counties for limited periods and during cer-
tain months of the year, and to prescribe punishments and penalties
for the violation thereof, and adopt all necessary measures for the
enforcement of such punishment and the collection of such penalties,
and such regulations and ordinances shall be published in the papers
in such county in which the session laws are published, and a certi-

fied copy thereof shall be filed in the office of the clerk of the county.
{As amended by L. 1880, ch, 531.]

§ 38. It shall be lawful for the boards of supervisors of the sev-
eral counties of this State, except as by this section hereinafter
further provided as to the county of Kings, by the affirmative vote
of a majority of the members elected at a regular meeting of such
boards, respectively, to authorize the election in each or any of the
towns or cities of their respective counties of one or more officers to
be designated game constable, who shall be chosen at town meetings
as other town officers are chosen, and hold office for the term of one
year ; and he or they shall take the oath of office the same, and be
invested with and have the same powers in serving process under
this act, that town constables now possess in serving civil process ;
but such game constable for the entire county of Kings may be
appointed by the board of supervisors at any regular meeting, and
he or they shall hold office to the last day of December next after
his appointment, and until his successor shall be appointed and
qualified ; and all suits prosecuted by such game constable for the
county of Kings, for penalties under the provisions of this act, may

be prosecuted in the county court of Kings county, or in the city
[62] 489

PART ITI.

killed in
season.

Regula-
tions by
super-
visors

Game con-
stables.

Id., in
Ki

county.
JUSTICE’S
MANUAL.

Id., their
duty.

Costs
where
constable
fails.

Arrest of
offenders.

Search
warrants.

GAME LAWS. [STATUTES

court of Brooklyn; and in case a recovery shall be had in such suits
for less than fifty dollars, the plaintiff shall be entitled to costs to
the amount of such recovery. Warrants of arrest may be issued by
such courts in such actions prosecuted by the game constable of
Kings county, as in cases provided for by section one hundred and
seventy-nine* of the Code of Procedure, except that no undertaking
shall be required on behalf of the plaintiff, and the judgments may
be enforced by execution against the person, and the sheriff of said
county shall not be entitled to any deposit or pay from the plaintiff
under the provisions of chapter eight hundred and thirteen of the
laws of eighteen hundred and sixty-nine. It shall be the duty of
the game constable, after reliable information, to prosecute all viola-
tions of this act, and he shall receive such compensation for his ser-
vices as is allowed by law for like services to constables of towns,
and also one-half of all penalties recovered by him for violations of
this act. In case of neglect or refusal of any game constable to prose-
cute any such violation, he shall forfeit the penalty of twenty-five
dollars, to be sued for and recovered as specified in this act. When-
ever any game constable shall fail to recover the penalty in any
prosecution commenced by him, pursuant to this section, the cost of
suit incurred by him shall be charged against the county, and it shall
be the duty of the board of supervisors of the county to audit and
allow the same, as other county charges are audited and allowed
(as amended by chapter five hundred and ninety-five, laws of eighteen
hundred and seventy-two).f

§ 39. Any justice of the marine or district court in the city of
New-York, or any justice of the peace, police or other magistrate,
upon receiving sufficient security for costs on the part of the com-
plainant, and sufficient proof by affidavit that any of the provisions
of this act have been violated by any person being temporarily
within its jurisdiction, but not residing there permanently, or by
any person whose name and residence are unknown, is hereby
authorized to issue his warrant for the arrest of such offender, and
to cause him to be committed or held to bail to answer the charge
against him; and any such justice or magistrate, upon receiving
proof or probable cause for believing in the concealment of any
game or fish mentioned in this act, and taken during any of the

490

* Revised in §$ 549, 550, 553 of the Code of Civ. Proc. See L, 1880, ch. 245, § 3, subd. 13,

. 514, post.
#80 in original.
UNREPEALED. | GAME LAWS.

periods prohibited, and upon the complainant’s giving security to
be approved by such magistrate for the damage which the defend-
ant in the case may sustain in consequence of the complaint, pro-
vided he shall be found not to have violated the law, shall issue
his search warrant and cause search to be made in any house, mar-
ket, boat, car, or other building, and for that end may cause any
apartment, chest, box, locker, crate or basket to be broken open and
the contents examined.

§ 40. All acts and parts of acts for the preservation of wild deer,
birds, fish and game, including section two of chapter one hundred
and eighty-three of the laws of eighteen hundred and seventy-five,
are hereby repealed, except such acts and parts of acts as relate to
the commissions of fisheries and the establishment of fishways, the
construction of dams across the rivers of this State, the protection
and preservation of shell fish, the incorporation of any company for
the protection and propagation of fish and game, the election of bay
constables, the laws conferring upon boards of supervisors special
powers to legislate for the protection of fish, birds and game, and
the laws regulating shad fishing; saving, nevertheless, so much of
said act as may be necessary to sustain any right of recovery or con-
dition thereunder for actions or prosecutions heretofore commenced.

§ 41. This act shall take effect immediately.

[L. 1879, ch. 584, as amended by L. 1880, chs. 584 and 531. Section 40 of the
act of 1879, is deemed to have repealed L. 1865, ch. 642 (6 Edm., 559); L.
1871, chs. 721 and 831; L. 1872, chs. 65, 483, 595; L. 1873, chs. 353, 485, 436, 479
and 739; L. 1874, chs. 390, 409 and 511 (9 Edm., 187, 208, 324, 369, 610, 611, 619,

717, 905, 906, 964); L. 1875, chs. 183 and 277; L. 1876, ch. 346; L. 1877, chs.
411 and 421; and L. 1879, ch. 361.]

Cuap. 531.
AN ACT to amend chapter five hundred and thirty-four

of the laws of eighteen hundred and seventy-nine, entitled
“ An act for the preservation of moose, wild deer, birds,
fish and other game.”

PassEpD May 31, 1880; three-fifths being present.

The People of the State of New- York, represented in Senate and
Assembly, do enact as follows :

[Sections 1-5 amend §§ 23, 24, 26, 27 and 37 of L. 1879, ch. 534, ante. ]
§ 6. Any action brought or prosecuted by any district attorney

pursuant to the provisions of the act hereby amended, may be dis-
491

PABT ITI.

Repeal.

Discon-
tinuance
of actions,
JUSTICE'S
MANUAL.

California
trout.

Otsego
lake ex-
cepted.

Clams ;
oysters.

Penalty.

GAME LAWS. [srarures

continued by such district-attorney, and neither costs nor disburse-
ments in such action shall be recovered by any defendant therein.

§ 7. No person shall take, catch or kill any California trout in
any of the waters of this State, in any way or by any device, between
the fifteenth day of May and the first day of September. No per-
son shall knowingly sell or purchase or have in possession any Cali-
fornia trout killed, taken or caught in the waters of this State during
the period aforesaid. Any person violating the provisions of this
section shall be deemed guilty of a misdemeanor, and, in addition
thereto, shall be liable to a penalty of twenty-five dollars for each
offence.

§ 8. The waters of Otsego lake are hereby excepted from the pro-
visions of this act.

§ 9. This act shall take effect immediately.

Cuap. 453.

AN ACT to regulate the taking of clams and oysters in
the waters of the State of New-York on the south side
of Staten Island.

PassED May 27, 1880; three-fifths being present.

The People of the State of New- York, represented in Senate and
Assembly, do enact as follows :

Sxction 1. No person shall, at any time in the evening or night
between a half an hour after sunset and a half an hour before sun-
rise, dig up, catch, take away or remove, any clams, or oysters,
whether of natural growth or planted, from the waters of the State of
New-York, or the land or ground under such waters, at any point or
place on the south side of Staten Island, lying between a line extend-
ing due south from the point known as the point of the beach at
Great Kills, in the town of Southfield, Richmond county, and a
line extending due south-west from Ward’s Point in the town of
Westfield, in said Richmond county.

§ 2. Every person who shall violate the provisions of this act shall
be guilty of a misdemeanor, and, upon conviction thereof, shall be
punished by a fine of not more than one hundred and not less than

492
UNREPEALED. | POLICE REGULATIONS. PART IIL

ten dollars, or by imprisonment in the county jail not less than ten
nor more than thirty days.
§ 3. This act shall take effect immediately.

Cuap, 282.

AN ACT for the preservation of lobsters.

PassED May 13, 1880; three-fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Srction 1. Whoever shall sell, or offer for sale, or have in posses- Lobsters.
sion with intent to sell, any lobster less than ten and one-half inches
in length, measurement to be taken from one extremity of the body
to the other, exclusive of claws or feelers, shall, for every such
offence, be subject to a fine of five dollars; and in all prosecutions
under this act the possession of any lobster not of the length herein
prescribed shall be prima facie evidence to convict.

§ 2. All forfeitures accruing under this act shall be paid one-half Disposi-

to the person making the complaint and one-half to the city or town Penalty.

where the offence was committed.
§ 3. This act shall take effect on the first of June, eighteen when act

takes

hundred and eighty. effect.

PROCEEDINGS RELATING To THE Pusiic Heatra, Hawkers anp
‘Peppiers, Ansconpinc Parents, anpD orHER Pouice Reeuwa-

TIONS.

Health.

§ 22. Any two justices of the peace, in any town of this State, Powers of
justices in
may cause all persons who shall be sick of any infectious or pesti- °°¥>*
lential disease, and not being residents of such town, by an order in
writing, to be removed to such place of safety within the town, as
they shall deem necessary for the preservation of the public health.
[1 RB. S., 451, § 22 (1 Edm., 398),1 R. S. (6th Ed.), 1103.]
493
JUSTICH’S
MANUAL.

Proceed -
ings

against
hawkers,
etc., trad-
ing with-
out
license,

Id., justice
to issue
warrant to
levy.

Sale.

Costs to
defendant.
Effect of
refusal to
show
license,

POLICH REGULATIONS. [STATUTES

Hawkers and Peddlers.

§ 8. Any citizen may apprehend and detain any person who shall
be found trading as a hawker or peddler, without license, or contrary
to the terms of his license, or who shall refuse to produce a license,
in violation of the provisions of this title; and may convey the
offender before any justice of the peace in the town or county in
which he shall be apprehended. It shall be the duty of the over-
seers of the poor of the several towns of this State to enforce the
provisions of the law in the manner herein prescribed whenever any
violation thereof within their respective towns shall come to their
knowledge.

[MEMORANDvUM. Since the enactment of L. 1880, ch. 72, a license is not required
for hawking and peddling “ family groceries and provisions,” although the pro-
duce, etc., of a foreign country.]

§ 9. It shall be the duty of such justice, if a sufficient license to
authorize such trading be not produced to him, and the fact of trad-
ing be proved to him, either by the confession of the person so ap-
prehended, or the oath of competent witnesses, to convict the
offender of such offences against this title, as shall be so confessed
or proved; and to issue his warrant om each conviction, directed to
some constable of the county in which the conviction shall be had,
commanding such constable to cause the sum of twenty-five dollars,
with costs not to exceed five dollars, to be forthwith levied by dis-
tress and sale, at public vendue, of the goods, wares and merchandise
of the offender. The moneys collected on such warrant, exclusive
of the costs, shall be paid by the justice, to the overseers of the poor
of the town in which the offence shall have been committed.

§ 10. In every case of a prosecution against any person for the
recovery of any penalty given in this title, no costs shall be allowed
to the defendant, if it shall appear that before the commencement
of the prosecution, such defendant had refused to produce his license,
or to disclose his name when lawfully required; nor in such case
shall the defendant be entitled to maintain any action, against the
person prosecuting him, or the constable, or other persons by whom
he may have been apprehended, or to the justice issuing any warrant
or other process against him, or before whom he may have been tried,

for any of their acts in so prosecuting, apprehending or trying him.
494
UNREPEALED. | POLICE REGULATIONS.

§ 11. No suit or prosecution for the recovery of any penalty im-
posed in this title, shall be maintained, unless it shall appear to be
brought within sixty days after the commission of the offence
charged.

§ 12. Every person who shall be sued for putting in execution
this title, or doing any matter or thing pursuant to its provisions, P
may plead the general issue, and give the special matter in evidence ;
and if the plaintiff in any such suit shall not prevail, the defendant

shall be entitled to recover treble costs.

[Preceding sections 8-12 are 1 R.S., 576, 577, § 8-12 (1 Edm., 534, 535). See
Laws of 1840, ch. 70; and, also, L. 1880, ch. 72, allowing peddlers to sell foreign
groceries and provisions without @ license. ]

Absconding Parents.

§ 8. Whenever the father, or mother being a widow or living
separate from her husband, shall abscond from their children, or a
husband from his wife, leaving any of them chargeable or likely to
become chargeable upon the public for their support, the overseers
of the poor of the town where such wife or children may be, may
apply to any two justices of the peace of any county in which any
estate, real or personal, of the said father, mother, or husband, may
be situated, for a warrant to seize the same. Upon due proof of the
facts aforesaid, the said justices shall issue their warrant, authorizing
the said overseers to take and seize the goods, chattels, effects,
things in action, and the lands and tenements of the person so ab-
sconding.

[23 B., 286; 21 W., 182; 44 B., 468.]

§ 9. By virtue of such a warrant, the said overseers may seize and
take the said property wherever the same may be found, in the
same county; and shall be vested with all the right and title to the
said property, which the person so absconding had, at the time of
his or her departure. All sales and transfers of any personal prop-
erty left in the county from which such person absconded, made by
him, after the issuing of such warrant, whether in payment of an
antecedent debt, or for a new consideration, shall be absolutely void.

The overseers shall immediately make an inventory of the property
495

PART III.

Limita-
tion.

Action
against
prosecu-
tor.
Treble
costs.

Father,
etc., ab-
sconding.

Effect of
warrant.
JUSTICE’S
MANUAL.

Duty of
overseers.

Proceed-
ings at
sessions.

Warrant,
when jus-
tice may
discharge.

Powers
and duties
of over-
seers,

Relief to
paupers
who can-
not be re-
moved to
oor
ouse.

POLICE REGULATIONS. [STATUTES

so seized by them, and return the same, together with their proceed-
ings, to the next court of general sessions of the peace of the county
where such overseers reside, there to be filed.

§ 10. The said court, upon inquiring into the facts and circum-
stances of the case, may confirm the said warrant and seizure, or
may discharge the same} and if the same be confirmed, shall, from
time to time, direct what part of the personal property shall be sold,
and how much of the proceeds of such sale, and of the rents and profits
of the real estate, if any, shall be applied towards the maintenance
of the children or wife of the person so absconding.

§ 11. If the party against whom such warrant shall issue return
and support the wife or children so abandoned, or give security
satisfactory to any two justices of the town, to the overseers of the
poor of the town, that the wife or children so abandoned shall not
become, or thereafter be, chargeable to the town or county, then
such warrant shall be discharged, by an order of such justices, and
the property taken by virtue thereof, shall be restored to such party.

§ 12. The overseers shall sell at public vendue the property so
ordered to be sold, and shall receive the rents and profits of the real
estate of the person so absconding, and in those towns which are re-
quired to support their own poor, the overseers shall apply the same
to the maintaining, bringing up and providing for the wife, child, or
children so left and abandoned, and for that purpose shall draw on
the county treasurer for the said proceeds, as hereinafter directed.
They shall account to the court of general sessions of the peace, for
all moneys so received by them, and for the application thereof, from
time to time, and may be compelled, by the said court, to render such
account at any time.

[The preceding sections 8-12 are 1 R. §., 615, 616, §§ 8-12 (1 Edm., 567, 568).]

Relief of Poor.

§ 42. If it shall appear that the person so applying requires only
temporary relief, or is sick, lame, or otherwise disabled, so that he
or she cannot be conveniently removed to the county poor-house, or
to such place as shall have been provided by the county superintend-

ents, the overseers shall apply to a justice of the peace of the same
496
UNREPEALED. | POLICE REGULATIONS.

town, who shall examine into the facts and circumstances, and shall
in writing order such sum to be expended for the temporary relief
of such poor person, as the circumstances of the case shall require ;
which order shall entitle the overseer to receive any sum he may
have paid out or contracted to pay, within the amount therein speci-
fied from the county treasurer, to be by him charged to the county,
if such person be a county charge; if not, to be charged to the
town where such relief was afforded; but no greater sum than ten
dollars shall be expended or paid for the relief of any one poor per-
son, or one family, without the sanction in writing of one of the
superintendents of the poor of the county, which shall be presented
to the county treasurer, with the order of the justice.

[18 J. R., 382; 3 How. P. R., 39; 8 Cow., 644.]

§ 48. If application for relief be made in any of those counties
where no county poor-house or other place shall have been provided,
as aforesaid, for the reception of the poor, the overseers of the poor
shall, with the assistance of some justice of the peace of the same
town, inquire into the facts and circumstances of the case, and shall
make an order in writing for such allowance, weekly or otherwise,
as the said justice, and one of the said overseers, shall think required
by the necessities of such poor person.

§ 44. If such pauper have a legal settlement in the town where
such application is made, or in any other town of the same county,
the overseers shall apply the moneys so allowed to the relief and
support of such pauper ; the moneys paid by them, or contracted to
be paid, pursuant to such order, shall be drawn by them from the
county treasurer on producing the said order, out of the funds in his
hands belonging to such town.

[Preceding sections 42-44 are 1 R. 8., 624, 625, $$ 42-44 (1 Edm., 577),]

[63] 497

PART III.

Relief to
paupers in
counties
not having
oor-
ouses,

The same.
JUSTICE'S
MANUAL.

One over-
seer may
act.

Repeal.

Overseers
of the
poor

to provide
for tem-
porary
relief,

Duty of

POLICE REGULATIONS. [STATUTES

Cuap. 236.

AN ACT to amend sections thirty-nine and forty-two of
part first, chapter twentieth, title first of the Revised
Statutes, so as to authorize any one of the overseers of
the poor to perform the services therein mentioned.

PassED May 1, 1834.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

§ 1. Any one of the overseers of the poor is hereby authorized
to perform the services mentioned in the thirty-ninth and forty-
second sections of part first, chapter twentieth, title first of the
Revised Statutes.

§ 2. So much of the thirty-ninth and forty-second sections of the
act hereby amended, as is contrary hereto, be and the same is hereby

repealed.
[4 Edm., 5.]

§ 2. The overseers of the poor of said county shall provide for
such relief or support, pursuant to the order of a justice of the peace
to be obtained in the manner provided by the forty-sixth* section of
the Revised Statutes above mentioned, except for medical services
to an amount not exceeding five dollars, for which no order shall be
required, until such persons shall be removed to the county poor-
house of such county, or until the necessity for any further expendi-
ture shall cease ; and it shall not be necessary to obtain the sanction
of the superintendent of the poor to authorize the expenditure of a
greater sum than ten dollars for the relief of any one poor person or
family. Provided, that such orders granted pursuant to this sec-

tion shall be granted without fee or reward.

. 1845, ch. 334, § 2 (4 Edm., 7), applicable to Livingston county and such
other counties as shall have adopted the act of 1845. See § 42, p. 496, ante.]

Sale of intoxicating liquors.
§ 19. It shall be the duty of magistrates and overseers of the poor
498

 

* Error for42. The reference was erroneously made to the *d ed, of the R. 8.
UNREPEALED. | POLICE REGULATIONS.

in any town or city, on complaint and satisfactory proof by a wife,
that her husband is an habitual drinker of intoxicating liquors, to
issue written notices to all dealers in intoxicating liquors against
whom such complaint is made, forbidding the sule or giving of such
liquor to such husband for the term of six months from the date of
the notice, under a penalty of fifty dollars, with costs, for each and
every sale or giving of such liquor, after such nutice shall have been
given; to be sued for in her own name and for her own use. It
shall be the duty of such magistrates and overseers of the poor to
forbid the sale in like manner in all cases when a husband shall make
like satisfactory proof concerning the wife, and all the provisions of
this section shall apply the same in either case. It shall be the duty
_ of magistrates and overseers of the poor, when like proof is made by
a parent concerning a child, whois a minor under the age of twenty-
one years, or of a child concerning a parent, to forbid the sale in like
manner; and all the provisions of this act shall apply as in other
cases named above.

§ 20. It shall not be lawful, under the provisions of this act, to
sell intoxicating liquors to any person guilty of habitual drunken-
ness, nor to any person against whom the seller may have been noti-
fied by parent, guardian, husband or wife, from selling intoxicating
liquors, and every party so selling or retailing intoxicating liquors,
shall, on proof thereof, before any court or* competent jurisdiction,
be deprived of his license to sell, and shall not be allowed a renewal
of said license, and in addition, on conviction, shall be punished by
a fine of not less than twenty dollars, nor more than fifty dollars for
each and every violation of the provisions herein set forth. If any
inn, tavern, or hotel keeper, or any other person or persons whatso-
ever, knowingly (outside of any poor-house), shall sell or give to any
pauper or inmate of any poor-house or alms-house, strong or spiritu-
ous liquors, or wines, such person or persons so offending shall be
fined twenty-five dollars, and be guilty of a misdemeanor, and on
conviction shall be imprisoned not more than sixty days. :
[L. 1857, ch. 628, §§ 19 and 20 (4 Edm., 52). See L, 1878, ch. 109.]

499

 

* So in original.

PART III.

magis-
trates and
overseers
of poor,

Habitual
drunkards
and pau-
pers.
JUSTIO“’S
MANUAL,

Commis-
sioners of
excise to
be elected.

Their
duties.

Compen-
sation.

Commis-
sioners
first elect-
ed to be
classified.

One com-
missioner
to be
elected
annually.

Vacancies.

POLICE REGULATIONS. [sraTurEs UNREPEALED. |

Cuap. 444,

AN ACT to create a board of excise in the several towns
of this State.

PassED May 4, 1874; three fifths being present.

The People of the State of New-York, represented in Senate and
Assembly, do enact as follows :

Szcrion 1. At the annual town meetings in the several towns in
this State, held next after the passage of this act, there shall be
elected in the same manner as other town officers are elected, three
commissioners of excise, who, while acting as such commissioners,
shall not hold either of the offices of supervisor, justice of the
peace, or town clerk, the office of president or trustee of any incor-
porated village, and who shall compose the board of excise of their
respective towns, and discharge the duties imposed upon the super-
visor and justices of the peace of towns, and the president and
trustees of incorporated villages thereof, by chapter one hundred
and seventy-five of the laws of eighteen hundred and seventy, and
laws amendatory thereof and supplementary thereto ; and shall be
entitled to receive compensation at the rate of three dollars per day,
while in session, as a board of excise, which shall be a town charge;
except in the counties where the moneys received by said board are
paid into the county treasury as hereinafter provided, when it shall
be a county charge. The commissioners first elected under this act
shall be classified by lot, under the superintendence of the super-
visor, the justice of the peace having the shortest time to serve,
and the town clerk, ora majority of such officers, who shall meet at
the office of the town clerk of their respective towns, for such pur-
pose, within ten days after such town meeting, and the persons
drawing for one, two and three years shall serve for such terms
respectively ; and annually thereafter one commissioner of excise
shall be elected for a term of three years. Vacancies occurring in
said boards, from any cause, shall be filled by appointment by the
supervisor and justices of the peace of said town, or a majority of
them, until the next annual town meeting, when such vacancy shall

be filled by election.
[L. 1874, ch. 444, § 1 (9 Edm., 919).]
500
PART III.

THE GENERAL REPEALING ACT OF 1880.

CuHap. 245.

AN ACT repealing certain acts and parts of acts.
PassED May 10, 1880.

The People of the State of New-York, represented in Senate
and Assembly, do enact as follows :

Section 1. The following acts and parts of acts heretofore passed
by the legislature of the State are hereby repealed, namely:
1. Of the first part of the Revised Statutes : ae
(1.) Title fourth of chapter fifth; except sections fourteen and fif- Part
teen and article fourth thereof.
(2.) The following portions of chapter eighth :
Sections ten to fourteen, both inclusive, of title fifth.
All of title seventh.
(8.) Titles twelfth and thirteenth of chapter ninth.
(4.) The final clause of section four of title fourth of chapter
eighteenth, beginning with the words, “and whenever any incorpo-
rated company shall have remained”.
2. Of the second part of the Revised Statutes: Partin”
(1.) The following portions of chapter first :
Sections eighteen to twenty-four, both inclusive, of title third.
Sections four, five and six of title fourth.
Section three, and sections ‘five to nine, both inclusive, of title
fifth.
(2.) The following portions of chapter fifth :
All of title first, except article eighth thereof.

All of title second.
501
JUSTICE’S
MANUAL.

Id.,R.S.,
Part OI.

REPEALING ACT OF 1880.

(3.) The following portions of chapter sixth :
All of title first, except sections one, two, three, four, five,twenty-
one and twenty-two, sections forty to fifty-three, both inclusive,

‘and sections sixty-nine, seventy and seventy-one thereof.

All of title second, except sections three, four, five, fifteen, sixteen,
twenty-two, twenty-seven, twenty-eight, twenty-nine, thirty-two,
thirty-three, thirty-four and sixty thereof.

The following portions of title third, namely: Sections seven-
teen, eighteen, nineteen, twenty, twenty-one, twenty-two, thirty-one,
thirty-two and thirty-eight; the concluding portion of section
thirty-nine, beginning with the words “but may prove such notice” ;
sections forty to forty-two, both inclusive ; sections fifty-two to fifty-
six, both inclusive; the concluding portion of section fifty-eight, as
amended by chapter three hundred and sixty-two of the laws of
eighteen hundred and sixty-three, beginning with the words: “ But
if the personal estate”; all of sections fifty-nine to seventy-four,
both inclusive, and sections eighty, eighty-one, eighty-two and eighty-
three.

All of title fourth, except sections fifty-five and fifty-eignt thereof.

All of title fifth, except sections one to six, both inclusive, and
section twenty-three thereof.

4, The following portions of chapter eighth :

All of title first, except article first thereof, and section forty-
nine thereof. :

All of title third, except sections one, two, three, twenty and
twenty-one thereof.

3. The third part of the Revised Statutes, except the following
portions thereof :

(1.) Of chapter first :

Articles first and second of title first.

Sections twenty-eight to forty-four, both inclusive, of title fourth,

Sections four, five, six, seven, twenty-one, twenty-four, twenty-
five, twenty-seven, twenty-eight and twenty-nine of title fifth; so
much of section twenty as fixes the places where the courts of
common pleas and general sessions shall be held; and so much of
sections eleven and fourteen thereof as relate to courts of general

sessions.
502
REPEALING ACT OF 1880. PART III.

(2.) Of chapter second :

Sections twenty-three, twenty-four, two hundred and thirty-one,
two hundred and sixty-eight, two hundred and sixty-nine and two
hundred and seventy of title fourth.

(8.) Of chapter third:

Sections forty, forty-one, forty-four, forty-five and forty-eight,
and sections fifty-four to sixty-one, both inclusive, of title second.

(4.) Of chapter seventh :

Sections sixty-three to seventy, both inclusive, of title third.

(5.) Of chapter eight :

Sections one, two, eleven, seventeen and eighteen of title third.

The following portions of title fourth, namely : Section forty-two,

which is hereby made applicable to a permanent receiver appointed
as prescribed in section seventeen hundred and eighty-eight of the
Code of Civil Procedure; sections sixty-six to eighty-nine, both
inclusive, which are hereby made applicable to a receiver appointed
as prescribed in section twenty-four hundred and twenty-nine of
the Code of Civil Procedure; and sections one hundred and two to
one hundred and six, both inclusive.

All of title eleventh.

All of title sixteenth.

Sections twenty-seven, twenty-eight, twenty-nine, thirty, thirty-
two and thirty-five of title seventeenth.

(6.) Of chapter tenth :

Sections one, forty-one, forty-two and fifty-one of title third.

Sections one, two and four of title fourth.

4. The act entitled “An act to simplify and abridge the prac-
tice, pleadings and proceedings of the courts of this State”, passed
April twelfth, eighteen hundred and forty-eight; being chapter
three hundred and seventy-nine of the lawsof eighteen hundred
and forty-eight, and the act amending the same, being chapter four
hundred and thirty-eight of the laws of eighteen hundred and forty-
nine, otherwise called the Code of Procedure.

.5. Of the revised laws of eighteen hundred and thirteen : Id.,R. L.,

The following portions of chapter eighty-six, entitled “ An act to
reduce several laws, relating particularly to the city of New-York,

into one act”, passed April ninth, eighteen hundred and thirteen,
503
JUSTICE 8
MANUAL.

Id., L, 1825.

Id., L. 1829.

Id., L. 1830.

Id., L. 1831.

Id., L. 1832.

Id., L. 1833.

Id., L. 1834.

Id., L. 1836.

Id., I.. 1837.

1d., L. 1838.

REPEALING ACT OF 1880.

namely: sections eighty-five to one hundred and forty-five, both
inclusive.

6. Oi the laws of eighteen hundred and twenty-five:

Chapter one hundred and seventy-nine.

7. Of the laws of eighteen hundred and twenty-nine:

Chapter one hundred and eighty-three.

8. Of the laws of eighteen hundred and thirty :

Chapters twenty-four, seventy-six, seventy-eight, eighty-four, one
hundred and eighty-five, one hundred and eighty-six and two hun-
dred and fifty-two.

9. Of the laws of eighteen hundred and thirty-one :

Chapters twenty-four, one hundred and thirty-three, two hundred,
and two hundred and seventeen.

Section two of chapter two hundred and thirty-seven.

All of chapters two hundred and eighty-seven and three hundred.

10. Of the laws of eighteen hundred and thirty-two :

Chapters seven, nine, two hundred and eleven and two hundred
and ninety-five.

11. Of the laws of eighteen hundred and thirty-three :

Chapters forty-two, fifty-two, two hundred, two hundred and
twenty-three, two hundred and twenty-seven and two hundred and
seventy-one.

12. Of the laws of eighteen hundred and thirty-four:

Chapters eighty-eight, one hundred and seventy, two hundred aud
thirty-five, two hundred and forty-five and three hundred and eight.

13. Of the laws of eighteen hundred and thirty-six :

Chapters three hundred and eighty-five and five hundred and
twenty-six.

14. Of the laws of eighteen hundred and thirty-seven :

Chapters two hundred and forty, three hundred and sixty-seven,
four hundred and eighteen and four hundred and sixty.

Sections three and four of chapter four hundred and sixty-one.

Section one of chapter four hundred and sixty-five.

15. Of the laws of eighteen hundred and thirty-eight :

Chapters one hundred and thirty-eight, one hundred and forty-
nine, two hundred and twelve, two hundred and forty-three and two
hundred and fifty-seven.

504
REPEALING ACT OF 1880.

16. Of the laws of eighteen hundred and thirty-nine !

Chapters eighty-six, one hundred and three, three hundred and
forty-two and three hundred and forty-three.

17. Of the laws of eighteen hundred and forty :

Chapters sixty-five, one hundred and sixty-five, one hundred and
seventy-seven and two hundred and twenty-five.

Section two of chapter two hundred and thirty-eight.

All of chapters two hundred and thirty-nine, three hundred and
seventeen, three hundred and forty-two, three hundred and forty-
seven, three hundred and seventy-seven, three hundred and seventy-
nine, three hundred and eighty-four and three hundred and eighty-six.

18. Of the laws of eighteen hundred and forty-one:

Chapters thirty-eight, one hundred and twenty-nine, one hundred
and thirty-eight, one hundred and forty-one, two hundred and fifty-
seven and three hundred and twenty-one.

19. Of the laws of eighteen hundred and forty-two:

Chapters one hundred and seven, one hundred and ninety-seven,
two hundred and forty and two hundred and seventy-seven.

20. Of the laws of eighteen hundred and forty-three :

Chapters one hundred and twenty-one and one hundred and sev-
enty-two.

Sections one, three and four of chapter one hundred and seventy-
seven.

All of chapter two hundred and one.

21. Of the laws of eighteen hundred and forty-four:

Chapters eleven, thirty-two, one hundred and four, one hundred
and twenty-seven, two hundred and seventy-three, three hundred and
three hundred and twelve.

Sections two and sixteen of chapter three hundred and nineteen.

All of chapter three hundred and forty-six.

22. Of the laws of eighteen hundred and forty-five :

Chapters one hundred and twelve, two hundred and ten, two hun-
dred and fourteen and two hundred and forty-two.

Section three of chapter two hundred and ninety-one.

All of chapter three hundred and forty-eight.

23. Of the laws of eighteen hundred and forty-six :

Chapters one hundred and forty, one hundred and fifty-nine, one

[64] 505

PART III.

Td., L. 1839.

Td., L. 1840.

Id., L. 1841.

Id., L. 1842.

Td., L. 1843.

Id., L. 1844.

Id., L. 1845.

Id., L. 1846.
JUSTICK'S
MANUAL.

Id., L. 1847.

Id., L, 1848.

Id., L. 1849.

Id., L. 1850.

REPEALING ACT OF 1880.

hundred and eighty-two, two hundred and nine, two hundred and
seventy-four, two hundred and seventy-six and two hundred and
eighty-eight.

24. Of the laws of eighteen hundred and forty-seven :

Chapters five and one hundred and nineteen.

Sections seven, eleven, twelve, thirteen and fourteen of chapter
two hundred and seventy-seven.

All of chapter two hundred and eighty, except the following por-
tions thereof, namely: Article first and article fifth; and sections
twenty-five and sixty-five.

All of chapters two hundred and ninety-eight, three hundred and
twenty-nine, three hundred and thirty-seven, three hundred and
thirty-nine, three hundred and fifty-two, three hundred and fifty-
three, three hundred and sixty-six, four hundred and thirty, four hun-
dred and fifty, four hundred and sixty-two and four hundred and
sixty-four.

All of chapter four hundred and seventy, except sections twenty-
six, thirty-three and thirty-five thereof.

25. Of the laws of eighteen hundred and forty-eight :

Chapters twenty-eight, thirty-five, forty-eight, fifty, fifty-three,
one hundred and seventy and one hundred and eighty-five.

Section one of chapter one hundred and ninety-seven.

All of chapter three hundred and twelve.

Section two of chapter three hundred and seventy-four.

26. Of the laws of eighteen hundred and forty-nine:

Chapters twenty-two, thirty and seventy-six.

All of chapters one hundred and seventy-three and one hundred
and seventy-six.

Section one of chapter two hundred and fifty-six.

All of chapters two hundred and fifty-eight, three hundred and
fifty-seven, three hundred and eighty, four hundred and thirty-eight
and four hundred and thirty-nine. i

27. Of the laws of eighteen hundred and fifty :

Chapters eighty-two and ninety-four.

Sections one, two, three, four, nine, ten and eleven of chapter one
hundred and thirty-eight.

All of chapters one hundred and fifty, one hundred and sixty-two,
506
REPEALING ACT OF 1880.

one hundred and ninety-four, two hundred and ten and two hundred
and twenty-five.

28. Of the laws of eighteen hundred and fifty-one :

Chapters two hundred and seventy-seven and four hundred and
fifty-five.

29. Of the laws of eighteen hundred and fifty-two :

Section one of chapter seventy-one.

All of chapters one hundred and seventy-five and two hundred and
seventy-seven.

All of chapter three hundred and eighty-nine, except sections one,
two, three and five thereof.

30. Of the laws of eighteen hundred and fifty-three :

Chapters one hundred and fifty-three, two hundred and thirty-
eight, six hundred and seventeen and six hundred and forty-eight.

31. Of the laws of eighteen hundred and fifty-four :

All of chapter ninety-six, except section six, and sections thirty
to thirty-nine thereof, both inclusive.

All of chapters one hundred and sixteen and one hundred and
thirty.

All of chapters two hundred and six and two hundred and seventy.

32. Of the laws of eighteen hundred and fifty-five:

Chapter eighty-five.

Sections one and two of chapter two hundred and two.

All of chapter five hundred and eleven.

33. Of the laws of eighteen hundred and fifty-seven :

Chapter one hundred and seventy-three.

All of chapter two hundred and ninety-five, except section seven
thereof.

All of chapter three hundred and eight.

Sections three, ten, fifteen, fifty-one and seventy-six of chapter
three hundred and forty-four.

All of chapters five hundred and twelve, six hundred and seventy-
nine and seven hundred and seventy-five.

34. Of the laws of eighteen hundred and fifty-eight :

Chapters one hundred and seventy-six and two hundred and thir-
teen.

Section three of chapter three hundred and fourteen.
507

PART III.

Id., L. 1851.

Id., L. 1852.

Id., L. 1853.

Id., L. 1854.

Id., L. 1855.

Td., L. 1857.

Id., L, 1858.
JUSTIOE'S
MANUAL.

Td., L. 1859.

Td., L. 1860,

Id., L. 1861.

Id., L. 1862.

Id., L. 1863.

Id., L. 1804.

REPEALING ACT OF 1880.

Sections two to six, both inclusive, of chapter three hundred and
thirty-four.

35. Of the laws of eighteen hundred and fifty-nine :

Chapters one hundred and seventy-four, two hundred and fifty-
two and two hundred and sixty-two.

Section one of chapter three hundred and eighty-nine.

36. Of the laws of eighteen hundred and sixty :

Chapter eighty.

Section seven of chapter ninety.

All of chapters one hundred and thirty-one, one hundred and
thirty-six, one hundred and seventy-three, four hundred and three
and four hundred and twenty-seven.

Sections one and two of chapter four hundred and ninety-three.

37. Of the laws of eighteen hundred and sixty-one:

Chapters eleven and twelve.

38. Of the laws of eighteen hundred and sixty-two :

Sections three, five and seven of chapter one hundred and seventy-
two.

All of chapter two hundred and twenty-nine.

So much of chapter three hundred and thirty-seven as relates to
justices of the peace exercising civil jurisdiction.

The first clause of section one of chapter three hundred and eighty-
nine, ending with the words “ amount demanded or recovered does
not exceed five hundred dollars”. :

All of chapter four hundred and fifty-nine.

The following portions of chapter four hundred and eighty-four,
namely :

So much of sections three and seventeen as relates to the marine
court of the city of New-York.

39. Of the laws of eighteen hundred and sixty-three :

Sections one, two, five, six and nine of chapter three hundred and
sixty-two.

All of chapter four hundred and three.

40. Of the laws of eighteen hundred and sixty-four:

Chapter fifty-three.

Sections one to eleven, both inclusive, of chapter seventy-one.

All of chapters two hundred and nineteen, three hundred and
508
REPEALING ACT OF 1880,

eleven, three hundred and seventy-one, four hundred and eleven,
four hundred and seventeen and five hundred and forty-five.

41. Of the laws of eighteen hundred and sixty-five :

Chapters eighty-one, three hundred and fifty-seven, four hun-
dred and thirty-six, six hundred and sixteen and seven hundred and
thirty-three.

42. Of the laws of eighteen hundred and sixty-six:

Chapters three hundred and seven and six hundred and thirty-six.

Sections one, two, six, seven, nine and ten of chapter six hun-
dred and ninety-two.

All of chapters seven hundred and one and seven hundred and
fifty-eight.

43. Of the laws of eighteen hundred and sixty-seven:

Chapters one hundred and ten, five hundred and sixteen and six
hundred and fifty-eight.

Section one, sections seven to ten, both inclusive, and section
sixteen of chapter seven hundred and eighty-two.

All of chapter eight hundred and fourteen.

44. Of the laws of eighteen hundred and sixty-eight :

Chapters five hundred and ninety-four, eight hundred and four
and eight hundred and twenty-eight.

45. Of the laws of: eighteen hundred and sixty-nine:

Chapters one hundred and fifty-seven, two hundred and _forty-
six, two hundred and sixty, four hundred and twenty-four and four
hundred and thirty-three.

Section four of chapter five hundred and sixty-nine.

All of chapters six hundred and twenty-seven, seven hundred and
thirty-eight and seven hundred and forty-eight.

So much of section one of chapter eight hundred and twenty as
amends sections six and seven of chapter six hundred and ninety-two
of the laws of eighteen hundred and sixty-six.

All of chapters eight hundred and thirty-one and eight hundred
and forty-five.

46. Of the laws of eighteen hundred and seventy :

Chapters twenty, thirty.seven and fifty-nine.

Section two of chapter seventy-four.

All of chapter seventy-eight.
509

PART III.

Id., L. 1865.

Id., L. 1866.

Id., L. 1867.

Id., L. 1868.

Id., L. 1869.

Id., L. 1870.

/
JUSTICE'S
MANUAL.

Id., L. 1871.

Id., L. 1872.

Id., L. 1873.

Id., L. 1874.

REPEALING ACT OF 1880.

Sections one, two and three of chapter one hundred and fifty-one.

All of chapters one hundred and seventy, three hundred and
fifty-nine, three hundred and ninety-four, four hundred and sixty-
seven, seven hundred and six and seven hundred and seventeen.

47. Of the laws of eighteen hundred and seventy-one:

Chapters two hundred and nineteen, three hundred and sixty-
one, four hundred and fifteen and four hundred and eighty-two.

Sections one to seven, both inclusive, of chapter four hundred and
ninety-two.

All of chapters six hundred and three, seven hundred and ninety-
nine and eight hundred and thirty-four.

Sections seven and eight of chapter eight hundred and fifty-nine.

All of chapters eight hundred and seventy-four and nine hundred
and thirty-six.

48. Of the laws of eighteen hundred and seventy-two:

Chapters twenty-six, ninety-two and one hundred and sixty-one.

All of chapter four hundred and thirty-eight, except so much
thereof as relates to criminal courts, or to district courts in the city
of New-York.

All of chapters six hundred and twenty-nine, six hundred and
eighty, six hundred and ninety-three and seven hundred and seven-
ty-six.

49. Of the laws of eighteen hundred and seventy-three:

Sections one and three of chapter sixty-one, as the latter section is
amended by chapter one hundred and seventy-one of the laws of
eighteen hundred and seventy-four.

All of chapters seventy, one hundred and eighty-two, two hun-
dred and eleven and five hundred and fifty-two.

The concluding portion of section one of chapter five hundred and
eighty-three, beginning with the words, “and shall have the same
remedies to recover”.

50. Of the laws of eighteen .undred and seventy-four :

Chapters nine, fifty-four, one hundred and twenty-seven, one hun-
dred and fifty-six, two hundred and fifty-eight, two hundred and
sixty-seven and four hundred and thirty-seven.

Section thirty-eight of title one, and all of title two of chapter
four hundred and forty-six.

510
REPEALING ACT OF 1880.

All of chapter four hundred and fifty-six.

All of section one of chapter four hundred and sixty, except the
last sentence thereof, beginning with the words, “ every juror shall
receive ”,

All of chapters five hundred and twenty-four and five hundred
and forty-five.

51. Of the laws of eighteen hundred and seventy-five:

Chapters forty-nine, three hundred and thirty-five, four hun-
dred and twenty-eight and four hundred and forty-two.

All of chapter four hundred and seventy-nine, except section
fifty-four thereof.

All of chapters five hundred and nineteen, six hundred and twenty-
three, six hundred and twenty-five and six hundred and thirty.

52. Of the laws of eighteen hundred and seventy-six :

Chapters one hundred and eighteen and one hundred and thirty-
six.

That portion of section five of chapter one hundred and ninety-
six, as amended by chapter one hundred and ninety-two of the laws
of eighteen hundred and seventy-seven, which follows the words
“at nine o’clock in the forenoon.” .

All of chapter two hundred and five.

Section two of chapter two hundred and sixty-seven.

All of chapters two hundred and seventy-eight and two hundred
and ninety-nine.

Sections one and two of chapter three hundred and thirty-eight.

Sections one, three and four of chapter four hundred and thirteen.

All of chapters four hundred and twenty-six, four hundred and
thirty-one, four hundred and forty-two and four hundred and forty-
nine.

53. Of the laws of eighteen hundred and seventy-seven :

Chapters one hundred and eighty-seven, two hundred and six,
two hundred and seventy-four and two hundred and eighty-five.

54. Of the laws of eighteen hundred and seventy-eight :

Chapters thirty-three, one hundred and twenty-nine and one hun-
dred and seventy-five.

Sections one, two and five of chapter one hundred and eighty-six.

Section two of chapter two hundred and ninety-eight.
511

PART ITI.

Id., L. 1875.

1d., L. 1876.

Id.,L. 1877.

Id., L. 1878.
JUSTICE’S
MANUAL.

Id., laws
relating to
fees.

Id., laws
amending
the re-
pealed
portions
of the R.
S., and
Code,

Quailifi-
cations
of the
repealing
act, as to
pending
actions,
etc,

Rights
accrued.

Offences,
etc.,com=
mitted.

Criminal

REPEALING ACT OF 1880.

All of chapter three hundred and twenty-four.

55. So much of every provision of the existing laws, not previ-
ously specified in this section, relating to fees or other compensa-
tion of an officer or other person, as is inconsistent with, or the
subject-matter whereof is fully provided for in the Code of Civil
Procedure, whether such provision has been heretofore generally
repealed or not.

§ 2. The repeal, by the last preceding section of the Code of Pro-
cedure, and of the portions of the Revised Statutes therein specified,
effects also the repeal of all the existing laws which expressly amend
the said Code of Procedure or the portions of the Revised Statutes
so repealed, by adding to or otherwise altering the text thereof.
The description contained in the last preceding section of statutes,
other than the revised laws of eighteen hundred and thirteen, or
the Revised Statutes, refers to the statutes as they appear in the
volumes of the laws of each session, printed and published by the
State printer until the year eighteen hundred and forty-two, and
after that year under the direction of the secretary of State.

§ 3. The repeal effected by the first section of this act is subject
to the following qualifications:

1. It does not render ineffectual, or otherwise impair any pro-
ceeding in an action or a special proceeding had or taken pursuant
to law before this act takes effect ; and where the repeal of a provision,
specified in that section, would render ineffectual, or otherwise
impair, such a proceeding, that provision must be deemed to remain
unrepealed for the purpose of avoiding such a result.

2. It does not affect any other lawful act done, or right, defence
or limitation, lawfully accrued or established, before this act takes
effect ; and every such right or act remains as valid and effectual as if
this act had not been passed. But this subdivision does not apply toa
case provided for in chapter fourth of the Code of Civil Procedure.

3. It does not affect any offence committed, or penalty or for-
feiture incurred, before this act takes effect, except that the pro-
ceedings in a civil action or special proceeding, brought by reason
thereof, are subject to the provisions of the laws in force after this
act takes effect. |

4. It does not affect. the jurisdiction, power or authority of any
512
REPEALING ACT OF 1880. PART III.

court or judge, in a criminal action or a criminal special proceeding, fyecceee
nor does it affect any future proceeding, taken according to the
existing laws, in such an action or special proceeding, except as
otherwise prescribed in subdivision sixth of this section, or implied
in chapter twenty-second of the Code of Civil Procedure.

5. It does not affect the power or authority of a court other than Proceed

ings under
the supreme court, a superior city court, the marine court of the city ue °
of New-York, or a county court, in an action or a special proceed- -
ing, of which such a court retains jurisdiction, under the laws in torce,
after this act takes effect; nor does it affect any future proceeding
taken pursuant to law, in such an action or special proceeding,
except as otherwise implied in the Code of Civil Procedure.

6. It does not affect the power, authority or jurisdiction of the Power of

. . . : t
county court respecting ferries, fisheries, turnpike roads, wrecks, fisheries.”

physicians, habitual drunkards, the removal of occupants from State ae
lands, the laying out of railroads through Indian lands, and upon
appeal from the determination of commissioners of highways, and
all other powers and jurisdiction specially conferred by any statute
remaining unrepealed after this act takes effect upon the late court of
common pleas of the county or the county court, and to prescribe
the manner of exercising such jurisdiction, where the provisions of
any statute are inconsistent with the organization of the county court.
7. It does not affect any provision of the existing laws relating to District
the district courts of the city of New-York, or costs or fees or pro- N. ¥. city.
ceedings in, or appeals from, those courts, or the appointment,
tenure of office, duty, or compensation of stenographers in those
courts, except so far as the subject thereof is expressly regulated
or provided for in the Code of Civil Procedure.
8. It does not affect the right of a prevailing party to recover the referee's

fees upon

fees of referees and witnesses and his other necessary disbursements ee

upon the reference of a claim against a decedent, as provided in Seedent.

those portions of the Revised Statutes left unrepealed after this act
takes effect.

9. Except as otherwise prescribed in section two of this act, the Unre-
peale

repeal of any provision of the existing laws, which has been amended amend. |
by a subsequent provision of those laws, not expressly repealed by jouetlod

this act, does not affect the subsequent provision.
[65] 513
JUSTICES
MANUAL.

Revival of
laws

Repeal of
repealed
laws.

Repeal of
ortions of
aw, here-
tofore
partially
repealed.

Repealed
laws re-
ferred to
in unre-
ealed
aws.

Offices ;
salaries
and fees
of officers.

REPEALING ACT OF 1880.

10. The repeal of any provision of the existing laws does not
revive any law repealed by the latter.
11. The repeal of a law heretofore repealed is not to be construed

-as a declaration or implication that the repealed law has been in force

at any time subsequent to the former repeal.

12. The repeal of a portion of a law is not to be construed as reviv-
ing any other portion of that law which has been expressly or im-
pliedly repealed by a law subsequently enacted.

13. Where a provision of the existing laws, incorporated into or
adopted or otherwise referred to in any other provision of the exist-
ing laws remaining in force after this act takes effect, is repealed,
the former provision, nevertheless, remains in force, for the purpose
for which it is so referred to, and for no other; except that where it
has been revised in, and made a part of, the Code of Civil Proced-
ure, the reference is to be construed as applying to the appropriate
provision so revised.

14. The repeal of any of the existing laws creating or otherwise
relating to an office or employment where the same or a correspond-
ing office or employment is provided for or recognized in the Code
of Civil Procedure, or in any other of the existing laws remaining
unrepealed after this act takes effect, does not create a vacancy therein,
nor does such repeal, except as otherwise prescribed in subdivision
fifty-fifth of section first of this act, abolish, diminish or otherwise
affect the salary, fees or other compensation of the incumbent, or
the time or manner of the payment thereof, or the fund out of

‘ which, or officer by whom they are paid, as regulated by the laws

‘* Existing
laws,”’ de-
fined

When act
takes
effect

so repealed, or the laws remaining unrepealed; nor does this act
affect any provision of the existing laws, which requires, in the
city of New-York, a party filing a first note of issue of fact in the
supreme court or a superior city court to pay any sum to the clerk ;
or which relates to the accounting for, application and disposition
of, the sums so paid.

§ 4. The term “ existing laws,” as used in this act, designates the
statutes of the State remaining unrepealed on the day before this act
takes effect.

§ 5. This act shall take effect on the first day of September,

eighteen hundred and eighty.
514
APPENDIX OF FORMS.

PREFATORY Note.—This Appendix contains forms for all the proceedings
in a civil action before a justice of the peace, under the completed Code of
Civil Procedure, from the summons to the execution and appeal; including
not only such new forms, as are rendered necessary by changes in the former
procedure, but also such forms under the former procedure, as will suffice
under the new system. It contains also full forms for proceedings under title
10 of chapter 19, relating to animals straying on the highways, etc.; under
title 2 of chapter 17, relating to summary proceedings to recover real prop-
erty ; and under article 2 of title 2 of chapter 14, relating to the new remedy
to foreclose a chattel lien. It aims, in short, to furnish to the justice, and
to the practitioner before him, all the forms that either one requires to con-
duct proceedings under the new Code. The editor has not thought it expe-
dient to attempt any thing more. Part III contains all the old unrepealed
statutes, regulating civil proceedings before justices of the peace. Many of
those statutes contemplate proceedings by an action, in which case, unless the
statute specially regulates the proceedings, the new Code must be followed ;
and in order to render these forms more useful for that purpose, particular care
has been taken, in preparing them, to provide fully for an action for a penalty
or forfeiture; and the notes to Part III contain many directions for the appli-
cation of the provisions of the old statutes to proceedings under the Code. But
with respect to most of the proceedingsregulated by the unrepealed statutes, the
new Code has very little application to them, if any ; and sufficient forms therefor
will be found in the “ New Clerk’s Assistant,” and in other form-books relating
to the former practice, and frequently also in blanks, with which most justices are
supplied. A few of such forms have been introduced for special reasons, but, as
to the great majority of them, the editor believes that his readers will agree with
him, that all that is proper in a work of this kind, is to point out, as has been
done in Part III, the old statutes that remain unaffected by the new system,
without increasing the bulk and expense of this book, by an attempt to in-
dicate, either by text or by forms, the proceedings under them, a task which
has been well done, in books with which justices and practitioners before them
are already fully supplied.

515
JUSTIOE’S MANUAL] FORMS.

I. COMMENCEMENT OF ACTION; PROVISIONAL REMEDIES.

No. 1.
Summons.
(§§ 2877, 3135, 22.)
County, { 2
Town (or ‘‘ city’) of { ;

The People of the State of New-York, to any constable of the county of , greet-
ing:

You are hereby commanded to summon O. P. to appear before the undersigned, a jus-
tice of the peace of said town, (or city) * on the day of , 1880,
at o’clock in the noon*, at his office (No. ; street) in said town (or
“city”), to answer the complaint of A. B. in a civil action.

Given under my hand this day of , 1880.

OC. D., Justice of the Peace.
Where an order of arrest accompanies the summons, substitute for the clause between
the ** the following: ‘‘ immediately upon his arrest, by virtue of the accompanying
order of arrest, and within twelve days after the date hereof.”

(§ 1897.)

If the action is brought to recover a penalty, the copy summons served must (and the
original should) be indorsed as follows: ‘‘ According to the provisions of chapter 220
of the session laws of 1880” (or other statute); or, if separate penalties are given in
separate sections of the statute, ‘‘ According to the provisions of section 18 of chapter
628 of the Laws of 1857”, [entitled ‘‘ An act to suppress intemperance and to regulate
the sale of intoxicating liquors””.] The clause in brackets is not essential, but it is safer
to add it.

As to the mode of designating a party, see note to § 2865.

No. 2.

Constable’s return of service of summons.

Not served.

(8§ 2883, 2885.)

The within summons was not served, for the reason that after diligent search, I could
not find the defendant (or ‘‘any officer of the defendant”), upon whom I could serve the
same (or other reason, as the case requires).

(Date.) GQ. H., Constable.
Served on an individual.
(§ 2878.)
The within summons was personally served on the defendant O. P., on the day of
, 1880, at the town of , by delivering to him a copy thereof.
(Date.) G. H., Constable.

516
FORMS. [JUSTICE’S MANUAL.

Served on a corporation.

(§ 2879.)
The within summons was personally served on the defendant O. P., on the day of
, 1880, at the town of , by delivering a copy thereof to J. K.,* a director
(or other officer named in § 2879, 431, or 432) of such corporation.
(Date.) GQ. H., Constable.
On a railroad corporation or express company.

(§§ 2880, 2881.)

(To the *, as in the last form, then add), residing in the county, and designated, by
an instrument unrevoked, and filed as prescribed in section 2880 (or 2881) of the Code
of Civil Procedure.

(Date.) G. H., Constable.

The same.

(To the*, as above, then add), a local superintendent of repairs (or other person named
in § 2880 or 2881, who is served) of such corporation, residing in the county of , no person
designated, by an instrument unrevoked, and filed as prescribed in section 2880 (or
2881) of the Code of Civil Procedure, being found, after due diligence, in said
county, and there being no officer (or ‘‘ person”, if express co.) residing in said county,
upon whom the same could be served, as prescribed in section 2878 or 2879 of the Code
of Civil Procedure.

(Date.) G. H., Constable.

In an action for a penalty.
(§ 1897.)

(Add, after ether of the foregoing forms which may be used) And I further certify that
the following was indorsed upon the copy summons so delivered, to wit, ‘‘ according”
(ete., as in No. 1.)

 

 

No. 3.
Authority to private person to serve or execute summons, or other
mandate.
(§ 8156.)
County
Town (or ‘‘city”) of ‘ bee
At the request of the plaintiff, I hereby empower §. P. of , to serve (or
‘execute ”) the within summons (or other mandate).
(Date.) C. D., Justice of the Peace.
No. 4.
Appointment of guardian ad litem for infant plaintiff.
Application.
(§ 2887.)
To C. D., Esq., a justice of the peace of the town of , in the county of

The undersigned, an infant, (or ‘‘general guardian of A. B., an infant”) hereby
requests you to appoint L. M. as the guardian of such infant, for the purpose of an
action against O. P.

Dated 5 (Signed by infant or general guardian.)

517
JUSTICE’S MANUAL. | FORMS.

Consent.

I do hereby consent to be appointed as the guardian ad litem of A. B., in pursuance
of the foregoing application.
Dated . L. M.

Appointment.

In pursuance of the foregoing application and consent, I hereby appoint L. M. as the
guardian of A. B., for the purpose of an action against O. P., the said L. M. being a
competent and responsible person.

Dated : C. D., Justice of the Peace.

No. 5.

Appointment of guardian ad litem for infant defendant.

(§ 2888.)
Application.
Justice's Court, County.
A. B. .
agst. Before 0. D., Esq., Justice.
O. P. .

To C. D., Esq., Justice:

The defendant herein, being an infant, (if the application is made by plaintiff add, ‘‘ and
not appearing upon the return of the summons,” or ‘‘and having neglected ” or
“refused,” ‘‘upon the return of the summons, to nominate a guardian, the plaintiff ’’)
hereby requests you to appoint L. M. (07, if plaintiff applies, ‘‘a proper person”’) as the
defendant's guardian for the purpose of this action.

Dated F (Signed by the party making application.)

Consent.

I do hereby consent to be appointed as the defendant’s guardian, for the purpose of
the above entitled action.
Dated : L. M.
Appointment,

In pursuance of the foregoing application and consent, I hereby appoint L. M. as the
defendant’s guardian, for the purpose of the above entitled action, the said L. M. being
a proper person for that purpose.

Dated : C. D., Justice of the Peace.

No. 6.

Affidavit for order of arrest.

(§§ 2894-2896.)
(Title of cause as in No. 5.)

‘State of New York, | ,,
County. ,
, being duly sworn, deposes and says :

1. That the defendant is not a resident of the county in which this action is brought;
518
FORMS. [JUSTICE’S MANUAL.

or, 1, that the plaintiff is not a resident, (or ‘‘ that all the plaintiffs are not residents”) of
the county in which this action is brought ;

or, 1. That the defendant is about to depart from the county in which this action is
brought, with intent not to return thereto, (stating the facts showing that he is about so to
depart, with such intent).

2. That this action is brought (here state the object of the action, which must be for a pur-
pose specified in § 2895, and all the facts necessary to constitute a good cause of action there-
for. The facts must be stated in full, and so as to prove them affirmatively).

(Affiant’s signature.)
Sworn to before me, this {
day of , 1880.

No. 7.
Undertaking for order of arrest.

(§ 2896. See, also, §§ 810-816.)
(Title of cause as in No, 5.)

Whereas, the above named plaintiff has applied (or ‘‘is about to apply”) for an order
of arrest in this action, against the above named defendant, in one of the cases provided
by law :

Now, therefore, I (or ‘‘we”) do (jointly and severally) undertake, pursuant to tha
statute, that, if the defendant recovers judgment herein, the plaintiff will pay all costs
which may be awarded to the defendant, and all damages which he may sustain by
reason of the arrest, not exceeding the sum of hundred dollars (at least $100).

(Date.)
(Stgnatures.)

[NotE.—It is not necessary that the plaintiff should execute the undertaking, and one surety suf-
fices. Section 811. The surety or sureties must justify, and the undertaking must be approved, as
follows. Sections 2896, 810, 812.]

Acknowledgment.
State of New York,
County. te
On this day of , 1880, before me personally appeared the above named
(and ), to me personally known to be the same person (or persons) de-

scribed in and who executed the foregoing undertaking, and (severally) acknowledged

that he (or ‘‘they”) executed the same.
(Signature of officer taking acknowledgment.)

Affidavit of justification.
State of New York, i
County. 2
(and ), above named, being (severally) duly sworn, (each for

himself,) says that he is a resident of and a householder (or “‘freeholder” ) within the
State, and is worth twice the sum specified in the foregoing undertaking, over all the

debts and liabilities, which he owes or has incurred, and exclusive of property exempt
by law from levy and sale under an execution.
(Jurat, as in No. 6.) (Signatures. )
Approval.
I approve the within (or ‘‘ foregoing”) undertaking, and of the surety (or sureties)
_ therein named.
(Date.) C.D., Justice of the Peace.

519
JUSTICE’S MANUAL. | FORMS.

No. 8.
Order of arrest.

(§§ 2894-2897, 3135.)
(Title of cause as in No. 5.)

To the constable serving the within (or ‘‘annexed”) summons. Whereas this action
is brought to recover damages for the wrongful conversion of personal property (or
other cause of action recited in § 2895), and it appears to me, by affidavit, that a sufficient
cause of action exists against the defendant O. P., and that he is not a resident of this
county (or other case recited in § 2894); therefore you are hereby directed to arrest O. P.,
the defendant in the above entitled action, if he can be found within your county, and
bring him forthwith before the undersigned; and to notify the plaintiff of the arrest, if
you can do so with reasonable diligence; and have you then and there this order.

(Date.) C. D., Justice of the Peace.

No. 9.

Constable’s return thereon.
(§§ 2898, 2899.)

I do hereby certify, that I executed ‘the within order of arrest, by arresting the defend
ant, and forthwith taking him before the justice issuing the same; (or ‘‘ before , Esq.,
a justice of the peace of the same town, the justice issuing the order being absent,” or
‘‘unable to try the action”,) and that I have notified the plaintiff thereof (or, ‘‘ and
that I have not been able, with reasonable diligence, to notify the plaintiff thereof’).

G. H., Constable.

(Date).

No. 10.
Notice of application for discharge from arrest.

(§ 2901.)
(Title of the cause asin No. 5.)

Take notice, that I shall apply to C. D., Esq., the above named justice, at his office
in , on the day of , 1880, at 10 o’clock, a. m., for an order discharging
me from arrest. O. P., defendant.

To A. B., plaintiff, (or ‘to E. K., agent” or ‘‘attorney”, “for A. B., plaintiff.)

No. 11.

Order discharging defendant from_ arrest.

(§ 2901.)
(Title of cause.)
Application having been made by the defendant, for an order discharging him from
arrest, now, on hearing counsel for the respective parties, and it appearing from the

520
FORMS. [JUSTICE’S MANUAL.

papers upon which the said order was granted (‘‘and the complaint herein,” if it has
been made), that the case is not within the provisions of either section 2894 or 2895 of
the Code of Civil Procedure;

Ordered, that the said defendant be discharged from arrest.

(Date.)
(Signature of justice.)

No. 12.
Same on plaintiff ’s default.

(§ 2901.)
(Title of cause.)
On reading and filing notice of motion, and proof of due service thereof upon the
plaintiff, (or ‘‘ plaintiff's agent ,” or ‘‘attorney”,) and no one appearing in opposition,
Ordered. (same as in No. 11.)

No. 13.

Same on failure to issue execution, or to proceed within twelve hours,
or upon adjournment.

(§§ 2900, 2901, 2964.)

(Title of cause.)

The plaintiff having failed to take out an execution, upon the judgment entered in his
favor in this action, before the expiration of one hour after he was entitled thereto;

or, Twelve hours having elapsed from the time when the defendant was brought before
me, and a venire not having been issued nor the trial of the action commenced ;

or, The trial of the above entitled action having been adjourned with the consent of
both parties (r ‘ upon the application of the plaintiff) ;

Now on the application of the defendant,

Ordered (same as in No. 11).

 

No. 14.
Affidavit for warrant of attachment.

: (S8 2905, 2906.)
(Title of cause.)

State of New York, bs ‘
County. .
being duly sworn, deposes and says:

1. That the above named defendant is justly and truly indebted to the above named
plaintiff in the sum of for (here state a cause of action upon a judgment, or on con-
tract); and that said plaintiff is entitled to recover said sum over and above all counter-
claims known to him.

or, if the action is for a tort, 1. That on or about the day of, 1880, the above
named defendant (here state commission of the tort); and deponent believes that he has
sustained, and is entitled to recover, damages therefor to the amount of dollars.

2. That the defendant is a foreign corporation, (or, ‘‘ That the defendant is not a resi-
dent of the State”; or, ‘‘That the defendant has departed” or ‘‘is about to depart from

[66] 521
JUSTICE’S MANUAL. | FORMS.

the county where he last resided, with intent to defraud his creditors”; or such other
Sacts as bring the case within the provisions of subd. 2 of § 2906, stating the particular
Sacts showing clearly the intent to depart, or defraud, etc., of the defendant.)

(Jurat as in No. 6.) (Signature of deponent.)

No. 15.

Undertaking for warrant of attachment.

(§ 2908.)
(Title of cause.)

Whereas, the above named plaintiff has applied (or,‘‘is about to apply”) for a war-
rant of attachment in this action against the property of the above named defendant,
in one of the cases provided by law:

Now, therefore, we do jointly and severally undertake, pursuant to the statute,
that, if the defendant recovers judgment, or the warrant of attachment is vacated,
the plaintiff will pay all costs which may be awarded to the defendant, and all dam-
ages which he may sustain, by reason of the attachment, not exceeding the sum of

hundred dollars (the sum must be ut least $200); and that, if the plaintiff
recovers judgment, he will pay to the defendant all money received by him from
property taken by virtue of the warrant of attachment, or upon any bond given
therefor, over and above the amount of the judgment, and interest thereupon.

(Date.) (Signatures. )

(Add acknowledgment, justification, and approval, as in No. 7, ante. The remarks sub-
joined to the undertaking in No.7, also apply to this undertaking.)

No. 16.

Warrant of attachment.

(§§ 2907, 3135, 22.)

(Title of cause.)

The People of the State of New-York, to the constable to whom the within (or “ an-
nexed””) summons is delivered :

Whereas, an application has been made to the undersigned, by the above named plain-
tiff, for a warrant of attachment against the property of the above named defendant, in
one‘of the cases provided by law; and it appearing by affidavit, to my satisfaction, that the
said plaintiff has a good cause of action against the said defendant for the sum of
dollars for breach of a contract (or other cause of action as in § 2905, a general statement
suffices,) and that the said defendant is a foreign corporation (or other clause of subd. 2
of § 2906 relied on), and the applicant having given the undertaking required by law :

Now, therefore, you are hereby required to attach, on or before the day of ‘i
1880 (insert a day at least six days before the return day of the summons), and safely to
keep, as much of the defendant’s goods and chattels within your county, as will satisfy
the plaintiff's demand, with the costs and expenses, and to make return of your proceed-
ings hereon to the undersigned, when the said summons is returnable.

(Date. ) C. D., Justice of the Feace.

522
FORMS. [JUSTICE’S MANUAL.

No. 17.

Inventory of property attached.

(§ 2909.)
(Title of cause.)

County, ss.
The following is an inventory of the property which I have taken this day of
, 1880, by virtue of a warrant of attachment, issued in the above entitled action,
by C. D., Esq., justice of the peace, and the estimated value of each item or article so
attached. (Here state the articles attached, and the estimated value of each item or article.)
(Date.) (Signature of constable.)

No. 18.

Certificate of copies of attachment papers, to serve otherwise than
personally.

($ 2910.)

I do hereby certify that the within are correct copies of the summons in this action
the warrant of attachment, and the inventory of the property taken by me thereon.
(Date.) (Signature of constable.)

No. 19.
Defendant’s undertaking for redelivery of attached property.

(§ 2911.)
(Title of cause as in No. 5.)

Whereas the property of the above named defendant has been attached in this action,
by G. H., constable of said town:

Now, therefore, we O. P., the said defendant, as principal, and L. M., as surety, do
jointly and severally undertake to the said plaintiff, pursudnt to the statute, in the sum
of (twice the value of the attached property, as stated in the inventory), that if judgment is
rendered against the defendant, and an execution is issued thereupon, within six months
after the giving hereof, the property attached shall be produced to satisfy the execution

(Date.)

(Signatures. )

(Add acknowledgment, justification, and approval as in No. 7, ante. The defendant
must execute this undertaking. The approval may be made by the constable or the justice.)

No. 20.

Bond for delivery of attached property to third person.
(§ 2912.)

Know all men by these presents, that we , and , are held and firmly bound
unto A. B. in the sum of (double the value of the property claimed) to be paid to the said A.

523
JUSTICE’S MANUAL. | FORMS.

B., his certain attorneys, executors, administrators or assigns, for which payment, well
and truly to be made, we do jointly and severally bind ourselves, our heirs, executors, and
administrators, firmly by these presents. Sealed with our seals. Dated the day
of , 1880.

Whereas certain goods and chattels, to-wit (naming the attached property claimed) were
on the day of , 1880, seized by G. H., constable, by virtue of a warrant of
attachment issued by C. D., Esq., a justice of the peace of the town of , in the
county of , in favor of the above named A. B. and against O. P.; and whereas the
above bounden claims the said goods and chattels as his property ; and the same
have not been reclaimed by the defendant, by virtue of the provisions of section 2911 of
the Code of Civil Procedure:

Now, therefore, the condition of this obligation is such, that if, in an action upon this
bond, commenced within three months hereafter, the said claimant will establish that
he was the general owner of the property claimed, at the time of the seizure;
or, if he fails so to do, that he will pay to the said A.B. the value thereof, with interest
then this obligation to be void, otherwise to remain in full force and virtue.

(Signatures.) i _

(Add acknowledgment, justification and approval, asin No. 7, ante. The claimant must
execute the bond ,; one surety suffices. The constable or justice may approve.)

No. 21.

Constable’s return of proceedings on warrant of attachment served

personally.
(§§ 2910, 2915.)
County, a
Town (or ‘‘city”’) of :
By virtue of the within warrant of attachment, I did, on the day of , 1880,
at , in the said county, attach and take into my custody the following described

goods and chattels of the defendant, and immediately made an inventory thereof, of
which I certify the annexed to be a correct copy; and immediately thereafter I served
the within summons, attachment and inventory personally on A. B.*, by delivering to
him copies thereof.

(Date.) (Constable's signature.)

Same, copies left at defendant's residence. = ttt ttt
(To the * as above, then add) by leaving copies thereof, certified by me to be such, at the
said defendant’s last place of residence at (or ‘‘in the town of” ) in the said
county, with X.Y. (or, if his name is not known, ‘‘with a man, aged apparently thirty
years”, etc., describing him), a person of suitable age and discretion. And I further
certify that said defendant could not, with reasonable diligence, be found within said
county.
(Date.) (Constable's signature.)

Same, by posting copies on door of residence.

(To the * as above, then add) by posting copies thereof, certified by me to besuch, on the
outer door of thesaid A. B.’s last place of residence at _—, in the said county, and also de-
positing like certified copies thereof in the post-officeat _, that being the nearest post-

524
FORMS. [JUSTICE’S MANUAL.

office, inclosed in a sealed post-paid wrapper, directed to the said A. B. at , that
being his residence. And I further certify that said defendant could not, with reason-
able diligence, be found within the said county, and that a person of suitable age and
discretion could not be found at the defendant’s said last place of residence therein.
(Date.) (Constable's signature.)
Same, where defendant has no residence in the county.

(To the * as above, then add) by delivering copies thereof, certified by me to be such
to , the person in whose possession the property attached was found. And I
further certify that said A. B. could not, with reasonable diligence, be found within the
said county, and has no place of residence therein.

(Date.) (Constable's signature.)

(Note.—If the constable delivers the attached property to the defendant, upon receipt of an un-
dertaking, or to a third person upon receipt of abond, that fact should be stated inthe return fully. ]

No. 22.
Order vacating warrant of attachment.

(§ 2916.)
( Title of cause as in No. 5.)

The defendant having made application to me, upon the return of the summons issued
in the above entitled action, to vacate (or ‘‘ modify, ” or ‘increase the plaintiffs security
given upon”) the warrant of attachment herein, upon the papers upon which the said
warrant was granted [and ‘‘upon the affidavits of ,»”] (omit the clause in brackets, if
the defendant presents no proofs) ;

Now, upon hearing the respective parties (add, unless the motion was heard upon
plaintiff’s papers only, ‘‘and upon reading and filing the affidavits of” here state the
names of the persons making affidavits, used by the plaintiff and defendant on the motion);

Ordered that the said warrant of attachment be, and the same is hereby vacated (or
‘“‘modified,” stating how).

or, Ordered that the plaintiff's security be increased to the sum of dollars, and
that upon failure of the plaintiff forthwith to so increase his security, the said warrant of
attachment be vacated.

(Date.) (Justice's signature. )

[Norz.—The justice may, on his own motion, if he deems the papers, upon which it was granted,
insufficient to authorize it, vacate the warrant of attachment. In such case, the justice, in place of
the first two sentences, should state his reasons for vacating the warrant.]

 

No. 23.

Affidavit for requisition to replevy.

(§§ 2950, 1695, 1697.)
(Title of cause.)

State of New York, t ae
County j :

, being duly sworn, deposes and says::
1. That the above named plaintiff is the owner of one red milch cow, with white
fore feet (if two or more chattels are to be replevied, describe them, as required by § 1697).
or, 1. That the plaintiff is entitled to the possession of a chattel (describing it as

525
JUSTICE’S MANUAL. | FORMS.

above stated,) by virtue of a special property therein, as follows (setting forth the facts
showing the special property).

2. That it is wrongfully detained by the defendant.

3. That the alleged cause of the detention thereof, according to the best knowledge,
information and belief of deponent, is (here state such cause).

4, That said chattel has not been taken by virtue of a warrant against the plaintiff for
the collection of a tax, assessment, or fine, issued in pursuance of a statute of the State,
or of the United States (or, if it has been taken under color of such a warrant, state that fact
and add, ‘‘that such taking was unlawful by reason of defects in the process,” stating
such defects, or other cause, why the seizure was unlawful, or ‘that the detention is unlaw-
ful by reason of”, stating the facts, subsequently occurring, rendering such detention un-
lawful).

5. That said chattel has not been seized by virtue of an execution or warrant of at-
tachment against the property of the plaintiff, or of any person from or through whom
the plaintiff has derived title to the chattel, since the seizure thereof (or, if it has been so
seized, state that fact and add, ‘‘ that said chattel was exempt from such seizure, by reason
of,” here state facts showing seizure unlawful, or * that the detention of such chattel is un-
lawful by reason of,” here state facts, occurring subsequent to seizure, showing detention un-
lawful).

6. That the actual value of the said chattel is dollars.

Lf affidavit is made by plaintiffs agent or attorney add, pursuant to§ 1712: 7. That depo-
nent is the agent (or ‘‘attorney”’) of the plaintiff, and that all the above facts are within
deponent’s personal knowledge.

(Jurat.) (Deponent’s signature.)

{Where the affidavit is made by an attorney and all the material facts are not within his personal
knowledge, substitute for subdivision 7 the following:

7. That all the above allegations (or if portions thereof are made upon information and belief state
what portions are so made) are made upon information and belief, that the grounds of deponent’s be-
lief are (here state such grounds), and that the reason why this affidavit is not made by the plaintiff is
(that he is not within the county of deponent’s residence (or “ office”, or “that he is not capable of
making this affidavit because,’’ give the reason).]

No. 24.
Undertaking thereon.
(§§ 2920, 1699.)
(Title of cause.)

Whereas affidavit has been made by (or, ‘‘in behalf of’) the plaintiff in this action,
that the defendant wrongfully detains certain personal property therein mentioned, of the
value of dollars, and the plaintiff claims the immediate delivery of such property,
as prescribed in chapter 19, title 2, article 5, of the Code of Civil Procedure:

Now, therefore, and in consideration of the taking of said property, or any part
thereof by virtue of said affidavit, and the requisition thereon indorsed, we the under-
signed, do hereby jointly and severally undertake, pursuant to the statute, in
the sum of (twice the value stated above) for the prosecution of this action; for the re-
turn of the chattel to the defendant, if possession thereof is adjudged to him, or if the
action abates, or is discontinued, before the chattel is returned to the defendant; and
for the payment to the defendant of any sum, which the judgment awards to him against
the plaintiff.

(Date.) (Signatures.

(Add acknowledgment, justification, and approval as in No. 7, ante. The undertaking
must be executed by two sureties; the plaintiff need not join therein, Justice must approve.)

526
FORMS. [ JUSTICEH’S MANUAL.
No. 25.
Requisition to replevy.

(§ 2921.)

To the constable to whom the summons in this action is delivered:
Thereby require you to replevy the property described in the within (or ‘‘annexed”)

affidavit, dn or before the day of , 1880. (Lhis date must be at least six days
before the return day of the summons.)
(Date.) (Justice’s signature.)
No. 26,

Constable’s return in proceedings to replevy.
($$ 2922, 2923.)

L

By virtue of the annexed affidavit and requisition thereon indorsed, I did on the
day of , 1880, replevy the following property, described in the said aflidavit,
(describing the property as described in the affidavit) which I found in the possession
of the defendant, (or ‘‘X. Y., the defendant’s agent.) (Here state the fact and the mode
of service of the summons, affidavit, and requisition as in attachment cases, see No. 21, ante ;
also state what disposition has been made of the chattels, pursuant to the provisions of §§
2924, 2927, 2929. :

(Date.) (Constable’s signature.)

No. 27.
Notice by defendant excepting to plaintiti’s sureties.

(§ 2924.)
(Title of cause as in No. 5.)
Take notice that I, the above named defendant, except to the plaintiff’s sureties
in the undertaking given by him in this action.
(Date.) (Defendant's signature.)
To (plaintiff or constable.)

(Note.—The sureties must justify before the justice, on the return of the summons. For justifica-
tion, see No. 31. i

No, 28:
Notice by defendant to reclaim chattel.

(§ 2925.)
(Title of cause.)
Sir—Take notice that I require the return of the chattel replevied in the above en-
titled action.
(Date.) (Defendant’s signature.)
To C.D., Esq., Justice of the Peace.

[If the defendant demands the return of a part of the chattels replevied, in a case prescribed in
the last sentence of § 2925, the notice should describe the chattel demanded as described in the affi-
davit of the plaintiff.]

527
JUSTICE’S MANUAL] FORMS.
No. 29.

Affidavit thereon.

(§§ 2925, 1704.)
(Title of cause.)
State of New York, |
County, t ey
being duly sworn, deposes and says:

1. That the above named defendant is the owner of the chattel described in the an-
nexed notice.

or, 1. That the above named defendant is lawfully entitled to the pos-
session of the chattel described in the annexed notice, by virtue of a special property
therein, to-wit: (Here set forth the fucts with respect to the special property.)

2. Cf affidavit is made by defendant's agent or attorney, add subd. 7, of* ante, No. 23.)

(Jurat as in No. 6.) (Defendant's signature.)

1 No. 30.
Undertaking thereon.

(§§ 2925, 1704.)
(Title of cause.)

Whereas, the defendant in the above entitled action demands the return of the chat-
tel (or, ‘‘demands the return of the following chattels”, describing them) replevied by the
above named plaintiff, the value of which, as stated in said plaintiff's affidavit, is (here
state such value) :

Now, therefore, we the undersigned, for the procuring of such return, and in consider-
ation thereof, do jointly and severally undertake, and become bound in the sum of (twice
the value above stated) for the delivery of said chattel to the plaintiff, if delivery thereof
is adjudged ; and for the payment to the plaintiff of any sum which the judgment
awards against the defendant. (Signatures.)

(Date.

[Add acknowledgment, justification, and approval by justice as in No.7, ante. Two sureties are

required ; the defendant need not join. The sureties must justify before the justice upon the re-
turn of the summons.] ‘

No. 31.

Examination of plaintiffs or defendant’s sureties.
(§ 2926, 579-581.)

(Title of cause.)
On this day of , 1880, before the undersigned, a justice of the peace in
and for the town of , personally appeared P. Q. and R. S., the sureties of the

plaintiff (or ‘‘defendant”) in the annexed undertaking, to justify pursuant to section
2926 of the Code of Civil Procedure, and the said, P. O., surety, being duly sworn says
(here state testimony taken, sce §§ 579-581) ; and the said R. §., surety, being duly sworn
says (etc., as above). (Signatures of sureties.)
Taken and sworn before i
me, the day first above written.
C. D., Justice of the Peace.:

© 528
FORMS. [JUSTICE’S MANUAL,
No. 32.
Allowance thereon.
(§§ 2926, 581.)

This day appeared before me the within named P. Q. and R. 8., sureties to the within
undertaking, and justified as such upon an examination as required by law: and I find
said sureties to be sufficient, and allow the same.

(Date.) C. D., Justice of the peace.

(To be indorsed on the undertaking.)

No. 33.
Affidavit by third person for delivery of chattel to him.

($§ 2929, 1709, 1712.)
(Title of cause.)

State of New York,
County, bss

, being duly sworn, deposes and says that was entitled, as
against the defendant, to the possession of the chattel (describing it) replevied in the
above entitled action, at the time the same was so replevicd, and now makes such
claim; and that the facts upon which such right depends are as follows: (Here state
such facts.)

(Jurat.) (Deponent’s signature. )

(if agent or attorney makes affidavit, add subd. 7 of No. 23, ante.)

No. 34.
Constable’s notice to plaintiff of third person’s claim.

(Title of cause.)

Take notice that L. M. claims the property replevied by me in this action (or ‘‘ claims
the following property replevied by me in this action”); that he has served upon me an
affidavit, of which a copy is herewith served upon you; and that I require indemnity

against such claim.
(Constable's signature.)

To (plaintiff, or plaintiff’s attorney, who appears for him before the justice.)

No. 35.
Plaintiffs undertaking to indemnify constable against such claim.

(§§ 2929, 1711.)

(Title of cause.) 7
Whereas, the following property (describing it) has been replevied in this action, and
is now held by G. H., constable, and one L. M., claims to have the right to the

[67] 529
JUSTICH’S MANUAL. | FORMS.

possession thereof, and has delivered to the said constable an affidavit, as required
by law; and whereas the said constable has served upon the said plaintiff a copy of
the said affidavit, and a notice that he requires indemnity against the said claim:

Now, therefore, we, the undersigned, do hereby jointly and severally undertake
pursuant to the statute, to the said G. H., constable, that we will indemnify him
against any liability for damages, costs or expenses to be incurred in an action
brought against him by the said claimant, or any person deriving title from or
through the claimant, by reason of the taking or detention of the said chattel, or its

delivery to the plaintiff, not exceeding the sum of dollars. (The amount need not,
in any case, exceed three hundred dollars.) (Signatures.)
(Date.)

(Note. — Add acknowledgment, justification, and approval by constable, as in No.7, ante, except
that in the justification, the sureties must swear that they are freeholders or householders of the con-
stable’s county. The undertaking must be executed by two sureties ; the Plaintiff need not join.
If the constable does not approve the undertaking, and requires the sureties to be examined, see
Nes. at and 3 ante. Such examination may be before the officer taking the acknowledgment of the
undertaking.

Il. PLEADINGS.

No. 36.
General forms of complaint.

; (8§ 2936, 2490.)
(Title of cause.)

The plaintiff complains that the defendant is indebted to him for one horse, sold by
him to defendant, on or about the 1st of September, 1880, for the agreed price of
dollars. He claims judgment for dollars, and interest from

or, that the defendant is indebted to him in the sum of dollars, for the value of
one horse, which he sold and delivered to him on orabout the 1st day of September,
1880. He claims, etc., as in the foregoing.

or, that the defendant, on or about the 1st day of September, 1880, took and carried
away one plough, of the value of dollars, the property of the plaintiff, to his dam-
age dollars. He claims, etc., as in the foregoing.

or, that the defendant wrongfully entered upon the plaintiff’s real property situated
at , and cut the plaintiff ’s grass therefrom, to his damage of dollars. He
claims, etc., as in the foregoing.

or, under § 2941, The plaintiff complains that there is due him from the defendant

dollars, upon the annexed account, (or, ‘‘promissory note”, etc.) (Here deliver
at to the court.) He claims judgment for said amount, with interest from

No, 387.
General forms of answers.

(8§ 2988, 2940.)

(Title of cause.)

The defendant denies the complaint, and also says that the horse sold to him was
warranted by the plaintiff to be sound, when in fact he was unsound and had the heaves,
and he claims damages therefor to

530
FORMS. [JUSTICH’S MANUAL.

or, that he has paid for said horse.

or, that the plaintiff is indebted to him for ten barrels of apples sold him at $
per barrel, and on book account, to $ .

or, that he entered upon the plaintiff’s real property, and cut the said grass by
plaintiff ’s consent.

or, that the said note was given upon the purchase price of a horse sold by plaintiff
to defendant, and which plaintiff then warranted to be sound, whereas he was not
sound and had the , to defendant’s damage dollars, which he claims in this
action by way of counterclaim.

or, that in a former action between the same parties, before A. B., Esq., Justice of
the Peace of the town of , upon this same cause of action, a judgment was ren-
dered in favor of defendant, and against the plaintiff.

or, that the plaintiff agreed to (here state the substance of agreement) and has failed to
perform the same, and the defendant claims damages for said non-performance to
dollars, which he interposes as a counterclaim in this action against the plaintiff, and
demands a judgment for the said amount (or, for the balance due.)

No. 38.)

Complaint for work performed as a domestic.

(S$ 3028, 1391.)
(Title of cause.)

The plaintiff complains that defendant is indebted to her in the sum of dollars,
for labor performed for defendant in his family, as a domestic. The plaintiff therefore
demands judgment for dollars, besides her costs,

(Date.) A. B., defendant.

[Nore.—The object of this special complaint is to prevent the property, enumerated in § 1391, p. 261,
aute, from being exempted from the execution. This form of compiaint can be easily adapted to the
other case specified in that section, to wit, purchase money for one or more articles exempted by §
1390, or § 1391.]

No. 39.

Complaint in action for penalty.

(Section 18 of the Excise law of 1857; L. 1857, ch. 628.)
JusTICcE’s CouRT.

A. B, and E. F., over-
seers of the poor of
the town of Before C. D., Esq., Justice of the Peace.
against

O. P. J

The plaintiffs complain, that they are overseers of the poor of the said town;
that on the day of , 1880, at the said town, the defendant O. P. sold (or
“gave away,” or ‘‘suffered, under his direction or authority, to be sold” or ‘given
away”) to P. Q., who then was intoxicated, strong and spirituous liquor, to wit: one
drink of whiskey; contrary to section 18 of chapter 628 of the Laws of 1857, entitled
«An act to suppress intemperance, and to regulate the sale of intoxicating liquors,”

531
JUSTICE’S MANUAL] FORMS.

whereby an action hath accrued to the said plaintiffs, as overseers of the poor of the
said town, to recover the sum of twenty-five dollars, for which sum, with costs, the
plaintiffs demand judgment.

A. B.

E. F., Overseers, etc., plaintiffs.

(Norte. — By L. 1878, ch. 109, all penalties given by the excise law of 1857, except those given
by §§ 15 and 19, are to be recovered by the overseers of the poor of the town, or by the commissioners
of excise, where there is no overseer. See People v. Smith, 69 N. Y., 175.)

No. 40.
Pleadings in an action for a chattel.

Complaint.

(§§ 1692, 2919, 2935.)
(Title of cause.)

The plaintiff complains that the defendant wrongfully withholds from the plaintiff

one cow (describing her) of the value of dollars, the property of the plaintiff, where-
fore the plaintiff demands judgment for the return of the said cow, or, if a return can-
not be had, for her said value, and dollars damages for the wrongful withholding-

A. B., plaintiff.

Norte.—If the chattel has been injured while in defendant’s possession, it is safer to add an alle-
gation to that effect. Section 1722 is applied to justices’ courts by § 2931.]

Answer.
(§§ 2980, 2938.)
(Title of cause.)

The defendant denies that he wrongfully withholds from the plaintiff the chattel (or
“any of the chattels”) specified in the complaint. (Where the chattel has been replevied,
and the defendant has not required the return thereof, pending the action, add) And the de-
fendant demands judgment for the return of the said chattel (or ‘‘ chattels”) with
dollars damages for the taking, withholding, and detention thereof.

O. P., defendant.

Norrt.— This form is probably sufficient in every case, bnt for greater caution it is advisable to
add, after the first sentence if the title is to be put in issue, as follows: ‘tand he further says that

the said [cow] is his property” (or “‘ the property of G. K.’’)] ¥
No. 41.
Pleadings in an action by or against a corporation.
Complaint.
(§ 1775.)

(Title of cause.)

The plaintiff complains:

1. That the plaintiff (or ‘‘ defendant’) is a domestic corporation.

or, 1. That the plaintiff (or ‘‘defendant”’) is a foreign corporation created by (or,
“under”, the laws of the State of Ohio.

2. (Here state cause of action.)

[Norez.— It is obligatory upon the plaintiff to insert the allegation contained in the above subd. 1,
as, without it, the complaint is demurrable.]

532
FORMS. [JUSTICE’S MANUAL.

Answer.
(§ 1776.)
(Title of cause.)
The defendant in answer to the complaint, alleges :
1. That the plaintiff (or ‘* defendant”) is not a corporation.
2. (Here state further defence.)
(Add vertjication, .as in No. 118, post.)

[Nore.—Unless the answer {s verified, and denies the corporate existence, the corporation need
not prove its incorporation. ]

No. 42.
Answer of title to real property.

(§ 2951.)
Title of cause.)

The defendant, for an answer to the plaintiff’s complaint in this action, denies each alle-
gation of the complaint; and he alleges the following fucts, showing that the title to real
property will come in question, to wit : that the land upon which the alleged trespass
was committed, is the land of the defendant (or otherwise, as the case may be).

(Signature of defendant, his agent or attorney.)

(Countersigning by justice.)

I hereby countersign the within answer this day of , 1880.
C. D., Justice of the Peace.

No. 48.

Undertaking thereon.

(§ 2952.)
(Title of cause.)

Whereas, the defendant in the above entitled action has (or “‘is about to”) set forth
in his answer facts, showing that the title to real property will come in question in said
action:

Now, therefore, we, the undersigned, do jointly and severally undertake, pursuant to
‘the statute, thatif the plaintiff, within twenty days from the day of , 1880, (day
of putting in answer) deposits with the justice a summons and complaint in a new action,
for the same cause, to be brought either in the supreme court or the county court of
the county of (or, if in Buffalo, “to be brought in the superior court of Buffalo”), the
defendant will, within twenty days after the deposit, give a written admission of the
service thereof. (If defendant was arrested add: ‘‘ and that the defendant will at all
times render himself amenable to any mandate, which may be issued to enforce a final
judgment, in the action so to be brought.”)

(Date.) (Signatures.)

(Add acknowledgment, justification, and approval by justice, as in No. 7. One surety
suffices ; defendant need not join.)

533
JUSTICE’S MANUAL. | FORMS.

Ill. PROCEEDINGS BETWEEN THE JOINDER OF ISSUE AND THE TRIAL.

No, 44,
Undertaking for adjournment by defendant.

(§§ 2961, 2962.)
(Title of cause.)

Whereas, the defendant in the above entitled action has applied (or ‘‘is about to ap-
ply”) for an adjournment of the trial of said action, on the ground that he cannot safely
proceed to trial, for want of some material testimony or witness:

Now, therefore, we do jointly and severally undertake, pursuant to the statute, that
if the plaintiff recovers judgment in the action; and if, before the expiration of ten days
after the plaintiff becomes entitled to an execution upon the judgment, the defendant
removes, secretes, assigns, or in any way disposes of, any part of his property, liable to
levy and sale by virtue of an execution, except for the necessary support of himself and
his family; and if an execution upon the judgment is returned wholly or partly unsatis-
fied; we will, upon demand, pay to the plaintiff the sum due upon the judgment.

(Date.) (Signatures. )

(Add acknowledgment, justification, and approval by the justice, as in No. 7, ante.
One surety suffices ; defendant need not join.)

No. 45.

Undertaking to discharge defendant from custody on adjournment.

(§ 2963.)
( Title of cause.)

Whereas, the defendant has been arrested in the above entitled action, and has applied
(or “is about to apply”) for an adjournment, upon the ground that he cannot safely
proceed to trial, for want of some material testimony or witness:

Now, therefore, we do jointly and severally undertake, pursuant to the statute, that
if the plaintiff recovers judgment in the action; and if an execution is issued thereupon
against the person of the defendant, within ten days after the plaintiff is entitled to the
same; and if a return is made thereto, on or after the return day thereof, that the defend-
ant cannot be found; we will pay to the plaintiff the amount due upon the judgment.

(Date.)

(Signatures.)
(Add acknowledgment, justification, and approval by justice, asin No. 7. One surety
suffices ; defendant need not join.)

No. 46.
Subpoena.
(§§ 2969, 3135, 22.)
County ; bss
Town (or ‘‘city”) of .
The People of the State of New-York to , greeting:

You are hereby commanded to appear*personally before me, the undersigned, a jus-
534
FORMS. [JUSTICE’S MANUAL.

tice of the peace of said town (or ‘‘ city’) at my office in said town (or ‘‘city ”) on the
day of , 1880, at o’clock in the noon, to give evidence in a certain civil action
now pending before me, and then and there to be tried, between A. B., plaintiff, and O.
P., defendant, on the part of the plaintiff (or ‘‘ defendant,” as the case may be). (If a
book or paper in witness’s possession is desired, add.) And you are also hereby commanded to
bring with you acertain book (or “ paper,” particularly describing the book or paper) now
in your possession or under your control, and also all books and papers now in your pos-
session or under your control, which relate to said action.
C. D., Justice of the Peace.

{NorE.—A subpcena duces tecum must be served at least flve days before the trial, otherwise the

party who needs abook or paper, must procure an order from the justice, requiring the production

thereof, by the person having it in custody. See Co. Civ. Pro. § 867, P; 225, ante. The foregoing form of
subpoena wil: answer for the order, omitting the direction, ‘‘The People,” etc.]

No. 47.
Constable’s return thereon.

(§ 2970.)

I hereby certify that I* served the within (or ‘‘ annexed’) subpcena on , at ) on
the day of , 1880, by reading the same (or stating its contents) to him per-
sonally, and by paying (or tendering) to him the sum of , his lawful fee for one day’s
attendance as a witness.

(Date.) (Constable's signature.)

No. 48.

Affidavit for warrant of attachment against witness.

(6 2971.)
(Title of cause.)

State of New York, fe

County ‘ .

Ifa private person served the subpana, his affidavit of service is necessary ; if a constable
served it, his return is evidence thereof. Wherea private person served the subpena, the affida-
vit should be as follows: P.Q., being duly sworn, deposes and says that he (insert as
above from the *). In either case, if a warrant of attachment is desired, the party or his at-
torney, etc., in his behalf, must make an affidavit as follows: A. B., being duly sworn” (or
“and deponent further”) says that the testimony of the said is material to the said
plaintiff (or ‘‘defendant”’) upon the trial of this action, and that the said has
neglected (or ‘‘ refused ’’) to attend as a witness in obedience to such subpeena; and that
deponent knows of no just cause for such neglect or refusal.

(Jurat asin No. 6.) P. Q.

({Nore.—If a witness, upon whom a subpcena duces tecum has been served, attends, but fails to
produce the book or paper, he cannot be attached under §§ 2971-2973 , but he may be summarily com-
mitted, under § 3001, until he produces the book or paper. ]

535
JUSTICE’S MANUAL. | FORMS.
No. 49.

Warrant of attachment thereon.

(8§ 2971, 2978, 3135, 22.)
County,
Town (or ‘‘city ”) of bss
The People of the State of New-York, to any constable of said county, greeting:

Whereas it has been made to appear by the affidavit of , to the satisfaction of the
undersigned, a justice of the peace of said town and county, that has been duly
subpeenaed to attend as a witness before the said justice, in an action in which A. B. is
plaintiff and O. P. is defendant; and that said has refused (or ‘‘ neglected”) to
attend as awitness in obedience to such subpena; and no just cause for such neglect
(or ‘‘refusal”’) is shown to exist:

We hereby command you, to attach the body of the said , if found within this
or any adjoining county, and take him forthwith (or on some specified day) before the
said justice, at his office in said town,* to give evidence in said action.

(Date.) C. D., Justice of the Peace.

[Nots.— The proceedings under §§ 2971-2973, are distinct from those under §§ 2974-2978; the object of
the former being to secure the witness’s attendance, and of the latter to punish him. But the papers
upon which a warrant may be granted under 2975 are § the same as those required fora warrant
under § 2971; and the foregoing form will suffice for a warrant under § 2975, by inserting after the *,
as follows: ‘‘to show cause why a fine should not be imposed upon him.” See 25N. Y., 588.)

No. 50.
Minute of conviction thereon.

(§ 2976.)

County, { as

Town (or ‘‘ city”) of (°"
* On the day of , 1880, X. Y., a defaulting witness,
having been arrested and brought before me, by virtue of a warrant issued as pre-
scribed in section 2971 (or 2975) of the Code of Civil Procedure, was convicted
before me and fined the sum of dollars, besides costs, for non-attendance as a witness
‘to give evidence (or ‘for refusal to testify as a witness”) before me, at my office in the
said town, on the day of , 1880, in pursuance of a subpeena duly issued by me,
and served upon him in behalf of the plaintiff (or ‘‘defendant”), in an action then
and there depending before me, in which A. B. was plaintiff, and O. P. was defendant.

C. D., Justice of the Peace.

No. 51.
Execution to collect fine.

(§ 2977.)
County,
Town (or “‘city”) of t ae
The People of the State of New-York, to any constable of said county, greeting:
Whereas, (insert from the * in No, 50, to the end of the form ; then add), a minute of which

536
FORMS. [JUSTICE’S MANUAL.

conviction, the cause thereof, and the fine and costs imposed, have been entered in the
docket-book of said justice; and whereas the said X. Y. has neglected to pay said fine
and costs (or, ‘and whereas the sum of , part of the said fine and costs, remains
unpaid to the said justice”), you are therefore hereby commanded to collect the said
sum remaining unpaid of the goods and chattels of the said X. Y. within your county;
and, for want thereof, to take him and convey him to the jail of said county, there to
remain until he pays such sum, not exceeding thirty days: and forthwith to bring the
money collected before the said justice, to be rendered by him to P. Q. and R. §., over-
seers of the poor of the said town (or other officer having charge of the poor) : and do you
return this execution within sixty days after the date hereof.

Witness my hand this day of , 1880, at , in said county.

C. D., Justice of the Peace.

No. 52.

Notice of application for commission.

(8§ 2980, 2982.)

(Title of cause.)

Take notice, that on the day of , 1880, at o’clock in the
noon, at the office of said justice in the town of , in said county, I shall apply to
said justice for a commission, to be directed to V. W., of the city of Albany, to examine
P. Q. of the same place, as a witness in the above entitled action, upon interrogatories
to be annexed to said commission.

(Plaintif?’s or defendant's signature.)
ToO. P., defendant, (or A. B., plaintiff.)

(Notrs.— This notice is not necessary unless application is made after joinder of issue.]

No. 53.
Affidavit of service of such notice.
(§ 2982.)
State of New York, 3
County. .
, being duly sworn, deposes and says: that on the day
of , 1880, at , be served the within notice upon O. P., the defendant ;

(or A. B., the plaintiff,) in the within entitled action, by delivering to and leaving with
him (or with the attorney who appeared for him before the justice named therein, ) per-
sonally, a copy thereof.

(Jurat, asin No. 6.) (Defendant's signature.)

No. 54.
Affidavit for commission.

(§ 2980.)
(Title of cause.)

State of New York, -
County, .

A. B., being duly sworn, deposes and says that he is the plaintiff in the above enti-
tled action; that* the defendant has neglected to appear upon the return of the summons

[68] 537
JUSTICE’S MANUAL. ] FORMS.

in this action (or, ‘‘that the defendant has failed to answer the complaint herein”, or
‘‘that an issue of fact has been joined herein ”*; if application is after joinder of issue, add,
“that due notice of an application for a commission has been duly served herein, as ap-
pears by the annexed notice and affidavit of ”); and that P. Q., of Albany, in
the State of New-York, is a material witness for the plaintiff in the prosecution of this
action, and is not within the county where said action is pending, or an adjoining county.*
(Jurat asin No, 6.) (Deponent’s signature.)

Me — This can easily be varied for the use of the defendant, when the application ts made by
him.

No. 55.

Commission to examine witness on interrogatories.

(§§ 2980, 2982.)
County, t 3.
Town (or “ city”) of ;

The People of the State of New-York, to V. W., of the city of Albany, Albany county,
in the said State :

Whereas, it appears to C. D., a justice of the peace of the town (or city) of , by
the affidavits of , in the county of , that, in an action now pending before
him, in which A. B. is plaintiff and O. P. is defendant + (here insert that portion of
No. 54, ante, between the **),

Now, therefore, we do hereby appoint you commissioner and authorize you, as such
commissioner, to examine the said witness under oath, § upon the interrogatories hereto
annexed; § to take and certify the deposition of said witness; and to return the same
by mail, addressed to the said C. D., according to the directions contained in the annexed
section 901 of the Code of Civil Procedure.

(Date.) C. D., Justice of the Peace.

{Nore.— Section 901, omitting subd. 6, must be annexed to the commission, and it would be advis-
able also to annex 8 902.]

Indorsement thereon.

The Commissioner within named will return said commission to me at , 10
the county of , and State of New-York, by mail.
C. D., Justice of the Peace.

No. 56.

Interrogatories and cross-interrogatories.

(§ 2980.)
(Title of cause.)

Interrogatories to be administered to P. Q., a witness to be examined under the an-
nexect commission, on the part and bebalf of the said plaintiff, in the above entitled
action, now pending before said justice :

First — (Here insert interrogatories, and annex documents to be identified, if any.)

A. B., Plaintiff.

Interrogatories to be administered to the said witness in behalf of the defendant, by
way of cross-examination :

First — (Here insert cross-interrogatories. ) O. P., Defendant.

538
FORMS. [JUSTICE’S MANUAL.

Assent to the same.

We, the undersigned, parties to the above entitled action, hereby consent that the
foregoing interrogatories and cross-interrogatories be settled and annexed to the commis-
sion to be issued in this action. A. B., Plaintiff.

O. P., Defendant.

[Nore.—The old formula, of reserving all legal objections to questions, {s now unnecessary.
See § 911, applied to justices’ courts by § 2986].

Setilement of the same by the justice.

I have settled the foregoing interrogatories and cross-interrogatories.
C. D., Justice of the Peace.

No. 57.

Consent to examine witness upon commission orally.

($ 2981.)
(Title of cause.)

Pursuant to § 2981 of the Code of Civil Procedure, we do hereby consent that the com-

mission to examine P. Q., as a witness in behalf of the (plaintiff or defendant) may issue

without written interrogatories, and that his deposition may be taken upon oral questions.
(Date.)

A. B., Plaintiff.
O. P., Defendant.

No. 58.
Commission to examine witness orally.
(§ 2981.)

(As in No. 55, ante, to thet; then insert that portion of No. 54, between the **
then add) and the said parties having duly consented that the said P. Q. be examined
without written interrogatories ;

Now, therefore, we do hereby appoint you commissioner and authorize you, as such
commissioner to examine the said witness under oath upon oral questions (conclude as
in No. 55, from the §.)

Nore.—Section 901 must be annexed to the commission; and it is recommended that ? 902 be also
annexed.

No. 59.
Oath to the witness by the commissioner.
(S$ 2986, 902.)

You do solemnly swear (or “ affirm’) that in answer to the interrogatories and cross-in-
terrogatories (or ‘‘ questions”) to be put to youunder this commission, you will testify
the truth, the whole truth, and nothing but the truth. (add, unless the witness affirms) So
help you God.

539
JUSTICE’S MANUAL. | FORMS.
No. 60.

Deposition.
(Title of cause.)

Deposition of P. Q., a witness produced on the part and in behalf of the plaintiff,
and sworn and examined on oath on the day of , 1880, at my office in the
city of Albany, by virtue of the annexed commission.

The said P. Q., being by me duly and publicly sworn to testify the truth, the whole
truth, and nothing but the truth, as to the matters respecting which the said witness
was to be examined, deposed as follows:

To the first interrogatory he says (give the answer in full, and so continue, including the
cross-interrogatories. )

P. Q. (Signature of witness.)

[Notr.— To each deposition is to be annexed a certificate, of which the form is contained in § 902,
(p. 227), made applicable to justices’ courts by § 2936. Itis better always to send the form with the
commission, especially when the commission is sent out of the State.]

No. 61.

Indorsement by justice on package containing commission returned.

(§ 2985.)
I do hereby certify that I received the within package at the post-office in the
of , on the day of , 1880, and thereupon I opened and filed the same, this
day of | , 1880.
C. D., Justice of the Peace.
No. 62.

Notice to produce a paper on the trial.
(Title of cause.)

To A. B., plaintiff : You are hereby required to produce on the trial of this cause, a
certain deed executed by M. N. to K. L., dated, etc., conveying, etc., (or other paper,
describing it as nearly as possible,)and all other papers relating to the same matter, or parol
evidence will be given of the contents thereof. O. P., defendant.

(Date.)

IV. TRIAL AND ITS INCIDENTS.

No. 63.
Venire.

(§§ 2991, 3135, 22.)

County t 3
Town (or ‘‘ city”) of eho
The People of the State of New-York, to any constable of the said county, greeting:
You are hereby commanded to notify twelve (or twice the number, less than sia, agreed

540
FORMS. [JUSTICE’S MANUAL

upon) men of the said town (or “ city”) qualified to serve, and not exempt from serving,
as trial jurors in courts of record; not of kin to the plaintiff or defendant; and not
interested in the action; to attend before the undersigned, a justice of the peace of said
town (or city”), at his office in said town (or “city”; if the streets are numbered,
the address should be added), on the day of , 1880, at o’clock in the
noon, to form a jury for the trial of a civil action, now pending before the said justice
between A. B., plaintiff, and O. P., defendant.

(Date.) C. D., Justice of the Peace.

No. 64.
Venire in action between towns.

(§ 2992.)
County
Town (or ‘‘ city”) of
The People of the State of New-York, to any constable of the said county, greeting:
You are hereby commanded to notify twelve men of the said county, who are qualified
to serve, and not exempt from serving, as trial jurors in courts of record, and who are
not interested in the matter at issue, to attend before the undersigned, a justice of the
peace of said town (or ‘city ”), at his office in said town (or ‘‘city”; see remarks in
last form as to address), on the day of 1880, at o’clock in the
noon, to form a jury for the trial of a civil action between the town (or ‘‘city ”) of
plaintiff, and the town (or “ city”) of , defendant.
(Date.). ;

bss

?

C. D., Justice of the Peace.

No. 65.
Constable’s return of service thereof.
(§ 2993.)

I do hereby certify, that by virtue of the within (or ‘‘annexed ”’) venire, I have per-
sonally notified the following persons to attend as therein prescribed, as jurors to try the
said action. X. Y.,etc., (names and residences.)

(Date.) G. H., Constable.

—
No. 66.

Warrant of commitment of witness attending and refusing to be
sworn, etc.

(§§ 8001, 3002, 22, 3135.)
County, \ ae
Town (or ‘‘ city”) of .
The People of the State of New-York, to G. H., constable of the said town, and to
L. M., sheriff of said county:
Whereas, on the trial of a civil action before me, the undersigned, justice of the peace,
this day, in which A. B. was plaintiff, and O. P. was defendant, P. Q. a witness, attending
541
‘

JUSTICH’S MANUAL. | FORMS.

in behalf of said plaintiff before me in said action, refused to be sworn or affirmed in
the form prescribed by law (or ‘‘refused to answer the following pertinent and proper
question”, stating the question in full ; or ‘neglected or refused to produce a book
known as ” describing it; or ‘‘a paper called”, etc., describing it, “which he had been
duly subpeenaed to produce as prescribed in section 2969 of the Code of Civil Procedure,”
or ‘which he had been duly required to produce by an order made as prescribed in sec-
tion 867 of the Code of Civil Procedure”) ; and whereas, the said plaintiff made oath before
me that the testimony of the said witness (or ‘that the said book” or ‘‘ paper ”,) was so
far material to his case, that without it he could not safely proceed with the trial of the
said action; and whereas, by the return of G. H., constable of said county (or ‘‘ the
affidavit of X. Y.”), it appeared that the subpcena (or ‘‘order”) aforesaid was duly
served upon the said P. Q., as required by law.

Now, therefore, you the said constable, are hereby commanded forthwith to con-
vey and deliver the said P. Q. into the custody of the said sheriff of said county
at the jail of said county, and you the said sheriff are hereby commanded to receive the
said P. Q., into your custody in the said jail, and him there closely confine by virtue
of this warrant, until he submits to be sworn or affirmed, as such witness as aforesaid,
(or ‘‘to answer the said question ” or “ produce the said book” or ‘‘ paper”), or is other-
wise discharged according to law.

(Date.) C. D., Justice of the Peace.

No. 67.

Affidavit that justice is a material witness.

(§ 3151.)
(Title of cause as in No. 5.)

State of New-York, l i
88.
County,

O. P., being duly sworn, deposes and says:

1. That he is the defendant in the above entitled action (or ‘‘ special proceeding ”).

or 1, That he is the attorney for the defendant in the above entitled action (or
‘¢special proceeding”), and that said defendant has not been arrested therein.

2. That an issue of fact has not been joined in said action (or ‘‘ special proceeding ”).

3. That the said justice before whom the said action (or ‘‘ special proceeding”) is
pending is a material witness for the defendant, without whose testimony he cannot
safely proceed to trial; that he expects to prove by said justice the following facts and
circumstances (stating them particularly); and that deponent is unable to prove the said
facts and circumstances without the testimony of the said justice.

(Jurat as in No. 6.) (Signature.)

No. 68.
Order thereon.

(§ 3151.)
(Title of cause.

Whereas, before the joinder of issue in the above entitled action (or ‘special pro-
ceeding”), satisfactory proof was presented in behalf of the defendant to me, the un-
dersigned justice of the peace, before whom the said action (or “special proceeding ”)

542,
FORMS. [JUSTICE’S MANUAL.

is pending, by the affidavit of the said defendant, (or otherwise, as the case may be,) that
Iam a material witness for the said defendant, without whose testimony he cannot
safely proceed to trial.

Ordered, that the said action (or ‘‘special proceeding”) be continued before E. F.,
Esq., justice of’ the peace of the said town of (or “city ”) of

(Date.) C. D., Justice of the Peace.

No. 69.

Juror’s oath on trial.
(§ 2998.)

You do solemnly swear (or ‘‘ affirm”) well and truly to try the matter in difference
between A. B., plaintiff, and O. P., defendant, and, unless discharged by me, a true
verdict to give according to the evidence. (If the juror is sworn, not affirmed, add) So help
you God. z

No. 70.
Witness’s oath on trial.

(§§ 3000, 845-849.)

You do solemnly swear (or ‘‘affirm”) that the evidence which you shall give, relating
to the matter in difference between A. B., plaintiff, and O. P., defendant, shall be the
truth, the whole truth, and nothing but the truth. (Jf the witness is sworn, not affirmed,
add) So help you God.

[NoTE.—See §§ 845-849, as to the different methods of swearing or affirming.]

No. 71.
Undertaking to indemnify against lost bill or note.

(§ 1917.)
(Title of cause, as in No. 5.,

Whereas this action is founded upon a promissory note, made by. O. P., the defendant,
to A. B., or bearer, for fifty dollars, dated about the Ist of October, 1876, which note
the said A. B. alleges was lost while it belonged to him, now therefore we do jointly
and severally undertake, pursuant to the statute, to the said O. P , in the sum of
dollars, that the said A. B. will indemnify the said O. P., his heirs and personal rep-
resentatives, against any claim, by any other person, on account of such note, and
against all costs and expenses, by reason of such a claim.

(Date.) (Signatures. )

(Add acknowledgment, justification, and approval, asin No. 7. Plaint(ff need not execute
the undertaking ; but there must be at least two sureties. The amount to be inserted in the
blank must be sized by the justice, at not less than twice the amount of the note.)

543
JUSTICE’S MANUAL. ] FORMS.
No. 72.
Warrant of attachment against a juror who fails to attend or serve.

(§ 8009.)
County of
Town (or “ city”) of bas

The People of the State of New-York, to any constable of said county, greeting :

Whereas, it has been made to appear to the satisfaction of the undersigned, justice of
peace of the said town (or ‘‘ city), by the return of G. H., constable of said county, to
whom a venire, issued according to law, in an action pending before the said justice,
wherein A. B. is plaintiff and O. P. is defendant, was delivered, that X. Y. was person-
ally notified by the said constable according to law, and pursuant to the command of the
said venire, to attend before me, at my office in , on the day of
1880, as one of the persons to form a jury for the trial of the said action:

And whereas the said X. Y. failed to attend (or ‘‘having so attended, and having
been drawn as a juror, as specified in sections 2994 and 2995 of the Code of Civil Pro-
cedure, refused to serve as such juror”) and no [reasonable] excuse for his said failure
(or ‘‘refusal”) has been offered:

We hereby, etc. (as in No. 49 to the the *, then continue) ‘‘to show cause why a fine
should not be imposed upon him therefor.

(Date.) C. D., Justice of the Peace.

?

No. 73.
Minute of conviction.

(§ 3009.)
This can easily be prepared by adapting No. 50, ante, to the case.)

No, 74.
Execution to collect the fine.

(§ 3009.)
Adapt No. 51 to the case.)

No. 75.
Verdicts; general forms.

(§ 3007.)

‘‘The jury find for the plaintiff fifty dollars,” or ‘‘The jury find for the defendant,”
or “find no cause of action,” or, where the defendant has interposed a counterclaim, ‘‘ The
jury find for the defendant twenty-five dollars,” or, in an action for a chattel (§§ 2931,
1726, 1730), The jury find that the plaintiff is entitled to the possession of the chattel;
that the value thereof is $50; and that the plaintiff has sustained $10 damages by the
taking (or “detaining” or ‘‘ withholding”) thereof (or vice versa, if for the defendant).

544
FORMS. [JUSTICE’S MANUAL.

V. JUDGMENTS.

No. 76.
Defendant’s offer of judgment before answer.

(§ 2892.)

(Title of cause.)
The above named defendant (or “O. P., one of the above named defendants ”)
hereby offers to allow jndgment to be taken against him, and in favor of the above

named plaintiff, for the sum of , With costs, pursuant to section 2892 of the Code
of Civil Procedure.
(Date.) O. P., Defendant.
.No. 77.

Plaintiff’s acceptance.

(§ 2892.)
(Title of cause.)
I do hereby accept the offer, filed herein, to allow judgment to be taken in my favor,
and against the defendant, for the sum of , with costs.
(Date.) A. B., Plaintiff.
No. 78.

Judgment thereon. Entries in docket-book.

(8§ 2892, 3140.)

(Title of cause.)

October 1, 1880. Summons issued in favor of the above named plaintiff and against
the above named defendant, returnable October 8, 1880.

October 8, 1880. The summons was returned as personally served by G. H., constable,
on the 2d October, 1880. Fees, $

October 8, 1880. The plaintiff and defendant appeared. Plaintiff complained (state
the complaint); whereupon the defendant, before answering said complaint, filed his offer
in writing, to allow judgment to be taken against him, and in favor of the plaintiff, for
the sum of , with costs. The plaintiff thereupon, and before taking any other
proceeding ia the action, filed a written acceptance of the offer. Judgment is accord-
ingly rendered this 8th day of October, 1880, in favor of the plaintiff and against the

defendant, for the sum of damages, and costs, making a total judgment
of , damages and costs.
MaMa Ges: captains aires Giana ee Palas eran abe sees Maine ee $

C. D., Justice of the Peace.
[69] 545
JUSTICE’S MANUAL. | FORMS.

No. 79.
Confession of judgment.

(§ 3010.)

(Title of cause.)

I do hereby confess judgment in favor of A. B. for the sum of dollars, (not exceed-
ing $500) and authorize the entry of judgment therefor against me, by the said justice.

(Date.) O. P., Defendant.

In presence of

C. D., Justice of the Peace.
Filed this day of , 1880.
C. D., Justice of the Peace.

No. 80.
Affidavit where confession is for over $50.’

(§ 3011.)
(Title of cause.)

State of New York, t 5
County, ee

A. B., plaintiff, and O. P., defendant, being severally duly sworn, each for himself
deposes and says, * that the said defendant is honestly indebted to the said plaintiff, in
the sum specified in the foregoing (or ‘‘ annexed”) confession of judgment, over and
above all just demands which the said defendant has against the plaintiff; and that said
confession is not made or taken with intent to defraud any creditor.*

(Jurat, as in No. 6.) (Signatures of plaintiff and defendant.) .

No. 81.
Agreement as to stay of execution thereon.

(§ 3010.)
(Title of cause.)
We, the plaintiff and defendant above-named, do hereby consent and agree, that the
issuing of the execution upon the judgment confessed herein be stayed days.
(Signatures of plaintiff and defendant.)

No. 82.
Judgment of confession.

(§§ 3010, 3015.)
(Title of cause.)
On this 8th day of October, 1880, the defendant O. P., having personally appeared
before me, and his confession of judgment, signed by him, having been filed with me,

546
FORMS. [JUSTICH’S MANUAL.

(if for over $50, add ‘‘and also the affidavit of the said plaintiff and the said defend-
ant, stating”, as in No. 80 between the **), judgment is hereby rendered, pursuant
to the said confession, in favor of the said A. B., plaintiff, against the said O. P., de-

fendaut, for the sum of $ thus confessed, with $ costs, amounting in all to
$ (— the consent No. 81 has been filed, add: ‘with stay of execution, for days”).
DSTA GOS isc vias seas we Saeane stele WY na bee wee eben eas Rea eed a malgd $
Costa: (by tems, 806:NO, 18) «sic name dasase eta seats aaa nedu dew dimes ene $

C. D., Justice of the Peace.

No. 88.

Entries in justice’s docket-book, in action for a chattel.

(§§ 1726, 1727, 1730, 2981, 3014, 3015, 3140.)
Title of cause.)

1880, November 1. Summons and requisition to replevy in civil action to recover’
chattel issued, returnable November 7th, 1880, at ten o’clock, at my office.

November 7th, 10 a. M., summons returned served (state how and when), by G. H.,
constable. Fees $ 5

November 7th, 11 a. M., both parties appeared in person, (or ‘‘ plaintiff appeared in
person, defendant by attorney V. W., who swore to his authority.) Plaintiff com-
plained as follows : (state complaint.) Defendant answered as follows: (state answer.)
On motion of plaintiff (07 ‘‘defendant”’) action adjourned to the 10th December, at 10
o’clock, 4. M., at my office.

December 10th, 10 a. m., venire issued at plaintiff’s request, returnable forthwith be-
fore me, at my office.

December 10th, 11 a. M., parties appeared and proceeded to the trial of the action.
The following persons were returned as having been notified to attend as jurors: 8. T.,
X. Y., etc., of whom 8. T., etc., attended, and X. Y., etc., did not attend. The
said S. T., etc., were duly drawn as required by law, and sworn as jurors to try the
action. The following persons were sworn as witnesses: P. Q,, etc., at plaintiff's re-
quest, and J. C., etc., at defendant’s request. (State objections made to witnesses and
decision thereon.)

December 12th, 2 p. m., verdict of jury received, which was as follows: (State verdict, or
if jury disagreed and were discharged, state that fact. The verdict must conform to the provis-
ions of §§ 1726 and 1727. See forms in No. 75, ante.) Whereupon I did forthwith, on
the 12th April, 1880, 2 P.m., render judgment, that the plaintiff recover of the defend-
ant the possession of the following described personal property (describing it), or the
sum of $50 in case a delivery cannot be had; and also that he recover $10 damages,
together with $5 costs, amounting in the whole to $65.

Value? of Property,’ cutay cccead Werned sears eae toes abe s apewes eee tei ely $50
Damaces:...2.shoc ss obese toedv ieaeeawed Yes eex coaees esse era wakes $10
Costs (by items, see No. 78, ante,) total... ... ccc cece ce cee cece eens $5

JUAPMEDE ciao gow eee y oad ne hk S4AGeie eee eee $65

C. D., Justice of the Peace.

547
JUSTICE’S MANUAL] FORMS.
No. 84.
Transcript of judgment.

(§§ 8016, 3017, 3018, 3019, 3021,3023, 957.)

State of New-York, ) aa

County ,j-"

Transcript of a judgment rendered by and before C. D., justice of the peace of the
town (or city) of , in said county.

In JusticE’s Court.

(Title of cause.)

On the day of , A. D. 1880, judgment rendered in favor of plaintiff
against defendant for a cause of action arising on contract (or otherwise as the case may be.)
(In a case within § 8018, add, ‘‘ Defendant liable to execution against his person”; in a
case within § 3021, add, ‘‘ Defendant O. P. was not summoned ”.)

Damages, $
Costs, (items unnecessary) $

Total, $

Transcript, 25 cts.
State of New York, bss A

County j

I, C. D., the above-named justice, do hereby certify that I have compared the fore-
going transcript of a judgment with the original judgment rendered by me, and entered
in my docket-book; and that it is a correct transcript therefrom, and of the whole of
the orignal.

(Date.) C. D., Justice of the Peace.

(Notr.—This form will answer for the purpose of filing with the county clerk, in every case, except
in some special proceedings under the old statutes, where the statute itself gives other directions ;
ex. gr. § 16, p. 454, ante ; and 86, p. 462, ante. In orderto render the transcript evidence it must be
authenticated by the county clerk’s certificate ; § 939, page 237, ante. }

VI. EXECUTIONS.

No. 85.
Executions against property on judgment for money.

(§§ 3025, 3026, 3135, 22.)

County 5 t ig
Town (or ‘‘city’’) of "

The People of the State of New-York, to any constable of the said county, greet-
ing :
*Whereas judgment was rendered by the undersigned, justice of the peace of said

town, in favor of A. B., plaintiff, against O. P., defendant, on the day of
1880, for the sum of dollars damages, and dollars costs, upon which there is
due at the date hereof the sum of dollars. *

You are, § therefore, commanded to satisfy the said judgment, together with your
fees, out of the personal propertyt of the said O. P., the judgment debtor, within your
county, not exempt from levy and sale by virtue of an execution ; and to bring the
money before the undersigned, by the return day of this execution, to be rendered by

548
FORMS. [JUSTICE’S MANUAL.

him to the said A. B.§ And do you return this execution within sixty days from the date
hereof.
(Date.) C. D., Justice of the Peace.
CNortE.— See 6 11, p. 452, ante; and § 9, p. 463, ante.]

 

No. 86.
Execution against the person.

(§§ 3025, 3026.)
County ;

Town (or ‘‘city”) of tse

The People of the State of New-York, to any constable of the said county, greeting :

(Insert as in the last form between the **, then add) : And whereas said action was brought
to recover a penalty (or ‘‘ penalties,” or ‘to recover damages for a personal injury,” or
other cause, stating it as specified in § 2895, subd. 2.)

or ‘And whereas said action was brought to recover for (a cause specified in § 2895,
subd. 3, stating it), and an order of arrest was granted and duly executed herein, and
not vacated:

You are (insert here as in the last form between the §§); and you are also commanded, if
sufficient personal property cannot be found to satisfy the judgment, to arrest the said
0. P., and to convey him to the jail of the county, there to remain until he pays the
judgment, or is discharged according to law. And do you return this execution
within sixty days from the date hereof.

(Date.) C.D., Justice of the Peace.

Indorsement thereon, where the execution is issued for a penalty or forfeiture.

According to the provisions of section of chapter of the Laws of 1880.
C. D., Justice of the Peace.

No. 87.
Execution for delivery of chattel to plaintiff.

(§§ 8038, 2931, 1378, 1731, excepting subd. 1.)

County, 6
Town (or ‘‘ city”) of gee

The People of the State of New-York, to any constable of the county of
greeting :

Whereas, on the 12th day of September, 1880, the undersigned rendered judg-
ment in an action before him, in which A. B. was plaintiff and O. P. was defendant,
that the plaintiff recover of the defendant the possession of the following described
chattel (describing it), or the sum of fifty dollars, in case a delivery could not be had,
and also that he recover ten dollars damages, together with five dollars costs :

You are, therefore, commanded to deliver the said chattel to the said A. B., if
the same can be found within your county; and, in case a delivery cannot be so had,
to satisfy the said sum of fifty dollars and interest thereon, and, also, in either case, to sat-
isfy the said damages and costs, together with your fees, out of the personal property
(ete., as in No. 85, ante, from the + to the end.)

549
JUSTICE’S MANUAL. | FORMS.

No. 88.

Execution when warrant of attachment is not personally served.

(§§ 2918, 3025.)
County,

Town (or ‘city ’) of ,
The People of the State of New-York, to any constable of the said county, greeting:
Whereas (as in No. 85 between the **, then add);

And, whereas, the summons in said action was not personally served, and the defend-
ant did not appear, but a warrant of attachment was duly issued in the said action, by
virtue of which the following property was attached (describing it):

You are, therefore, commanded to satisfy the said judgment, together with your fees,
out of the property so attached, and to bring the money before the undersigned, by the
return day of this execution, to be rendered by him to the said A. B. And do you re-
turn this execution within sixty days from the date hereof.

(Date.) ©. D., Justice of the Peace.

83.

No. 89.

Indorsement on execution against joint debtors, when some are not
served.

(8§ 3020, 1984, 1935, 3134.)

To the constable executing the within execution:

O. P., one of the within named defendants, was not summoned in the within entitled
action, You are, therefore, directed not to enforce the within execution against the sole
property (if the execution ts against the person, add ‘‘or against the person”) of the said
O. P., but the said execution may be collected out of the personal property owned by
him jointly with the other defendants who were summoned, or with any of them, or
owned by those who were summoned, or any of them.

(Date.) C. D., Justice of the Peace.

No. 90.

Indorsement of levy on execution.

(§ 8029.)
On the day of , 1880, by virtue of the within execution, I levied upon the
following property: (Particularly describe each article.)
(Date Se SNE G. H., Constable.
No. 91.

Constable’s notice of sale.

(§ 3029.)

By virtue of an execution, issucd from a justice’s court, against the property of O.
P., I have* seized and taken (particularly describing the property), which I shall expose
550
FORMS. [JUSTICE’S MANUAL

for sale at public auction, to the highest bidder, on the day of , 1880, (not
less than sia days after posting), at 10 o’clock in the forenoon, at the house of
in the town (or ‘‘ city”) of ; county, N. Y.

(Date.) G. H., Constable.

?

No. 92.
Affidavit for prisoner’s discharge from execution against person.

($$ 3083, 3034.)
(Title of cause, as in No. 5.)

State of New York, ms
County, :

O. P., being duly sworn, deposes and says that he is committed to jail under an exe-
cution against his person, issued by the said justice, upon the judgment in the above
entitled action ; that he has a family within this State for which he provides (or, ‘‘ that
he has no family within the State for which he provides”), and that he has remained in
custody, under and by virtue of said execution, within the jail of said county, or the
liberties thereof, for thirty (or, if he has no family, “sixty ”’) days.

(Jurat, as in No. 6.) (Signature. )

No. 93.
Renewal of execution (indorsed upon the execution).

(§ 3027.)

\

The within execution is hereby renewed for sixty days from this date.

(Ff part has been satisfied, add ‘‘for the sum of dollars and interest from the
day of , 1880, which remains due thereupon ”’.)

(Date.) C. D., Justice of the Peace.

Vil. APPEALS.

No. 94.
Notice to limit time to appeal.

(§ 3046.)
“(Title of canse,as in No. 5.)
Please take notice that judgment was entered in the above entitled action against you,
on the day of , 1880, for damages and costs.
To O. P., defendant. Yours, ete, A. B., plaintiff.
551
Ge ee rf
‘

“n> oe

JUSTICE’S MANUAL. | FORMS,
No. 95.

Notice of appeal to be heard on return.

(§§ 3045, 3046, 3062.)
(Title of cause, asin No. 5.)

Please take notice that the above-named defendant appeals to the county court of the
county of (or, in Buffalo, ‘‘ to the Superior Court of Buffalo ”): from the judgment
entered in the above entitled action on the day of , 1880, in favor of the
plaintiff and against the defendant for the sum of damages and costs.*

(Date.) Yours, etc., O. P., defendant.

To C.D., Esq., Justice, and to A. B., plaintiff.

(Notr.— According to the ruling in Andrews v. Long, 19 Hun, 303, a notice of appeal must be signed
by the appellant, not by his attorney. }

No. 96.

Notice of appeal for new trial.
(§§ 3046, 3068.)

(Same as No. 95 to the *,then add ), and demands a new trial in the appellate court.
(Date.) (Defendant's signature.)

No. 97.
Undertaking to stay execution, on appeal from money judgment.

(8§ 3050, 1335, 3069.)
(Title of cause, as in No. 5.)

Whereas, on the day of , 1880, the plaintiff recovered a judgment against
the defendant for the sum of damages and costs (or otherwise as the case
may be); and whereas the defendant intends to appeal from said judgment to the county
court of county (or, in Buffalo, ‘‘to the Superior Court of Buffalo’):

Now, therefore, we, the undersigned, do jointly and severally undertake, pursuant to
the statute, that if the appeal is dismissed; or if judgment is rendered against the
appellant in the appellate court, and an execution issued thereupon is returned wholly
or partly unsatisfied; we (or, if the appellant joins, ‘‘the said surety ”,) will * pay the
amount of the judgment, or the portion thereof remaining unsatisfied, not exceeding
the sum of (at least one hundred dollars, and not less than twice the amount of judgment.)

(Signatures .)

(Date.)

(Add acknowledgment, justification, and approval by justice or county judge, asin No. 7.
One surety suffices ; the appellant need not join.)

No. 98.

The same, from a judgment in an action for a chattel.

(As in No. 97 to the *, then add) pay the sum fixed by the judgment as the value of
the chattel. (If the judgment awards any damages, add:) together with the damages
awarded for the taking (or, ‘‘ withholding, ” or, ‘‘ detention ”) thereof.

552
FORMS. [JUSTICE’S MANUAL.

No. 99.

Notice of delivery of undertaking.

(§§ 8050, 3051.)

ToA. B., plaintiff within named:

Take notice that an undertaking, of which the within isa copy, was delivered to C. D.,
Esq., justice of the peace on the day of , 1880.
(Date.) O.P., Appellant.

Cf the undertaking is delivered to the justice's clerk, or filed as prescribed in §§ 8051
and 3052, the notice should so state.)

(NotE.—The respondent is at liberty to except to the sureties ; and if he does so, they must justify
on notice. See § 1335, applied to justices’ courts by § 3050. For forms for justification see Nos. 31,32.

No. 100.

Justice’s return, when new trial is not demanded.

(§ 3053.)
(Title of cause, as in No. 5.)

To the county court of the county of (or, in Buffalo, To the Superior Court of
Buffalo):

In pursuance of the notice of appeal hereto annexed, which was served upon me on
the day of , 1880, and the costs included in the action, and my fee of two dol-
lars for making the return, paid, and the annexed undertaking delivered to me, at the
same time, I the undersigned, the justice of the peace above named, do respectfully re-
turn to said court, * that the following are all the proceedings taken in the above entitled
action, including the evidence, and the judgment entered therein :

(Here state the proceedings and judgment, as entered in the docket-book, and the evidence taken
on the trial. Also annex the notice of appeal, and undertaking given to stay execution.)

(Date.) C. D., Justice of the Peace.

No. 101.
Same, where new trial is demanded.

(§§ 3053, 3069.)
(Title of cause, as in No. 5.)

(As in No. 100, to the * ; then proceed), that the following are all the proceed-
ings taken in the above entitled action, except the evidence, with a brief statement of
the amount and nature of the claims litigated by the parties, and the judgment thereon
entered; and that the summons, (add, if the case requires, ‘‘and each warrant of attach-
ment, or ‘‘ order of arrest” or ‘‘requisition to replevy”, ‘‘and execution granted by
me in said action”,) with the proof of service thereof ; the pleadings (or ‘‘ copies of the
pleadings”), together with the notice of appeal, and the undertaking given to stay exe-
cution, are hereto annexed:

(Here state the proceedings and judgment entered in the docket-book as above recited; and
then annex the above enumerated papers. )

(Date.) C. D., Justice of the Peace.

{'70] 553
JUSTICE’S MANUAL. | FORMS.
No. 102.

Offer of judgment by respondent before return.

(§§ 8070, 3071.)
Ononpaaa County Court.

A. B., Respondent,

against

O. P., Appellant.

Sir — Please take notice that I hereby offer to allow judgment to be rendered in
the county court of the county of Onondaga, in the above entitled action, in favor of A.
B., the above named respondent (or O. P., the above named appellant, as the case may
be,) for the sum of

(Date.) Yours, etc.,
‘ A. B., respondent,
To O. P., appellant (or To M. N., Esq., attorney for appellant).

No. 103.

Acceptance thereof, and proof of service.

(§ 3070.)
(Title of cause as in No. 102.)
Please take notice that I hereby accept your offer dated , to allow judgment
to be rendered in this action in the county court of the county of , in favor of
, for the sum of
(Date.) Yours, etc.,

O. P., appellant.
To A. B., respondent (or to KK. L., Esq., attorney for respondent).
(Title of cause as in No. 102.)

State of New York, 36
County, ,

R. S. (any competent person) being duly sworn, deposes and says,
that on the day of , 1880, he served a notice of acceptance of the annexed
offer of judgment upon A. B., the respondent in the above entitled action (or, ‘‘upon
K. L., Esq., attorney for the respondent in the above entitled action), by delivering to
him personally such notice of acceptance, a copy of which is hereto attached.

(Jurat, as in No. 6.) R. 8.

{Nors. — The notice, being a proceeding in a suit in a court of record, may be served in any mode
allowed for service in such asuit, and the foregoing affidavit varied accordingly.)

No. 104.

Offer of judgment after return.
(§ 3072.)
(Title of cause as in No. 102.)

Please take notice, that I hereby offer to allow judgment to be taken against me
554
FORMS. [JUSTICE’S MANUAL.

in the above entitled action for the sum of (or property, or otherwise), with (or ‘‘ with-
out”) costs.
(Date.) (Signature of appellant or respondent.
To (appellant or respondent.)
(for acceptance and proof thereof, sce No. 103.)

VIII. MISCELLANEOUS PROCEEDINGS.

No. 105.
Order transferring cause to another justice.

(§ 3150.)
(Title of cause, as in No. 5.)
County it ah

(Town (or ‘* city”) of (pF

The term of office of the undersigned, justice of the peace, before whom the above
entitled action (07 ‘‘ special proceeding”) is pending, being about to expire, before judg-
ment can be rendered (v7 ‘‘a final order can be made’) therein:

or, The undersigned, justice of the peace, before whom the above entitled action (or
“special proceeding”), is pending, being about to remove from the said town, before, etc. .

Ordered, that the said action (or ‘‘special proceeding”) be continued before E. F.,
Esq., justice of the peace of said town (or ‘‘ city”) of

(Date.) C. D., Justice of the Peace.
No. 106.

Warrant to arrest for a contempt.
(§§ 2872, 8135, 22.)

County

Town (or “ city”’) of 38

The People of the State of New-York, to any constable of the county of » greet-
ing: We command you to take A. B. and bring him before the undersigned, one of the
justices of the peace of said town (or ‘‘city’’), at his office [No. 5
street] in said town (or ‘‘ city”), to show cause why he, the said A. B., should not be
punished for a criminal contempt, alleged to have been committed on the day of

, 1880 [before the said justice while engaged as a justice of the peace in judicial

proceedings. J C. D., Justice of the Peace.

Given under my hand at aforesaid this day of , 1880.

[Note—The last clause in brackets, commencing, “ before the said justice’’, etc., is probably not
necessary ; but it is better, for greater caution, that the warrant should contain some recital of the
charge. The clause can be changed to conform specifically to the subdivision of § 2870, under which

the case may come.]

No. 107.
Record of conviction for a contempt.
(§§ 2871-2874.)

County Me
Town (or ‘‘ city ”) of { :
Whereas, * A. B. on the day of , 1880 (here state the nature of the offence,

the place of its commission, and its particular circumstances ; the general clause in brackets

555
JUSTIOE’S MANUAL. | FORMS.

in the last form will not suffice); and whereas the said justice thereupon issued a warrant,
directed generally to any constable of the county, requiring the constable to bring the
offender before him; and whereas said A. B. was arrested upon said warrant and brought
before said justice, and an opportunity then given him to be heard in his defence; and
whereas said A. B. did not show any defence to such charge, nor excuse himself there-
from,* it is hereby adjudged that the said A. B. 1s guilty and is convicted of the con-
tempt aforesaid, and that he paya fine of (not exceeding twenty-five) dollars (if pun-
ished by both fine and imprisonment, add to, and if punished only by imprisonment substi-
tute for, the last clause,) and that he be imprisoned in the county jail of said county for
the term of (not exceeding jive) days.
Given under my hand this day of , 1880.
C. D., Justice of the Peace.

No. 108.

Warrant of commitment.

($§ 2871, 2874, 31385, 22.)
County
Town (or ‘‘city”) of

The People of the State of New-York, to G. H., constable of the said town, and toL.M.,
sheriff of said county :

Whereas (here insert that part of No. 107 between the **). And whereas, the said
A. B. was thereupon adjudged guilty and convicted of said contempt by the said jus-
tice, and also adjudged to pay a fine of dollars, and be imprisoned in the county
jail of said county for the term of days or either, as the case may be) ;

bas

Now, therefore, you, the said constable, are hereby commanded forthwith to
convey and deliver the said A. B. into the custody of the said sheriff of said county ;
and you, the said sheriff, are hereby commanded to receive the said A. B. into your cus-
tody in the jail of said county, and him there closely confine, by virtue of this warrant,
during the said term of days, and until he payssaid fine (or either, as the case may be)
or until he is duly discharged according to law.

(Date.) C. D., Justice of the Peace.

No. 109.

Subpena for examination of witness by a justice, under a foreign com-
mission.

(§ 918.)

The People of the State of New-York, to P. Q, greeting: :
You are commanded to appear before C. D., Justice of the Peace, at his office [No.
, street], in the town (or ‘city ”) of , county of, , on the Ist day
of October, 1880, at ten o’clock in the forenoon, to testify in an action now pending
in the Supreme Court of the State of Michigan, between A. B., plaintiff, and O. P.,
defendant, on the part of the plaintiff, proof having been made to the satisfaction of
the said justice, of the matters specified in section 918 of the Code of Civil Procedure.
(Date) C. D., Justice of the Peace.
556
FORMS. [JUSTICE’S MANUAL.

No. 110.

Complaint by a wife, to procure notice forbidding dealers to sell liquor
to her husband.

(L. 1857, ch. 628, § 19.)
County, |
Town, (or ‘‘city ”’) of, (-"

ToC. D., Esq. , Justice of the Peace of the said town (or ‘‘ city ”) and county.

A. B., complaining, says, that she is the wife of C. B., and that she and the said C. B.
reside in the town (or “ city”) of , county of ;that the said C. B. is an
habitual drinker of intoxicating liquors (add any special circumstances which may exist,
although the foregoing allegation is sufficient) and that O. P., J. K. and L. M. of the said
town (or ‘‘ city”) are dealers in intoxicating liquors, and the said C. B. is in the habit
of procuring such liquors from them. She therefore prays that the said justice issue
written notices to the said dealers in intoxicating liquors, forbidding the sale or giving
’ to the said C. B. of any intoxicating liquors, or wine, for six months, pursuant to section
19 of the ‘‘Act to suppress intemperance, and to regulate the sale of intoxicating
liquors”, passed April 16th, 1857.

(Date.) A.B

County of ss. A. B. being duly sworn, says that the foregoing complaint is
true in fact.

(Jurat.) A. B.

[Note.— The foregoing form as easily varied for a husband, parent, child, etc. As to defini-
tion of intoxicating liquors, see 63 N. Y., 277.]

No. 111.

Notice to liquor sellers.

(L. 1857, ch. 628, § 19.)
County, | ..
Town, (or ‘‘city ”) of, §

To O. P. ge Dee and L. M. , dealers in intoxicating liquors:
Whereas complaint has this day been made to me, the undersigned, by A. B. of the
town of , the wife of C. B., with satisfactory proof that the said C. B., her said
husband, is an habitual drinker of intoxicating liquors, you and each of you are there-
fore hereby forbidden to sell, or give to the said C. B., her said husband, any intoxicat-
ing liquor, or wine, for the term of six months from the date of this notice, undera
penalty of fifty dollars, with costs, foreach sale or giving of such liquor, or wine, to be
recovered by the said A. B., pursuant to section 19 of the ‘‘ Act to suppress intemper-
ance, and to regulate the sale of intoxicating liquors,” passed April 16th, 1857.

(Date.) C.D., Justice of the Peace.

557
JUSTICH’S MANUAL. | FORMS.
No. 112.

Complaint in action by wife, against liquor dealer, for selling, etc.,
liquor to her husband.

(L. 1857, ch. 628, § 19.)
In Justice’s Court,
County. {

 

agst

>
ry F og

et
‘ Before C. D., Esq., Justice of the Peace of the town of
P|

oe

 

The above named plaintiff complains against the above named defendant, and says,
that she is the wife of C. B., whois an habitual drinker of intoxicating liquors; that
the defendant is a dealer in intoxicating liquors in the town (or ‘‘city”) of ; that
on or about the 1st day of September, 1880, on complaint by this plaintiff, and satis-
factory proof of those facts, written notice to the said defendant, forbidding him to sell
or give to said C. B. any intoxicating liquor, or wine, for six months from the date
thereof, was issued by C. D, Esq., justice of the peace of the said town (or ‘‘ city”),
and on that day the said notice was served personally on the defendant; that notwith-
standing said notice, and in violation thereof, the said defendant, on or about the
30th day of September, 1880, at the said town (or ‘‘city”) sold (or ‘‘ gave away” as
the case may be, or both) to the said C. B, intoxicating liquor, to wit: one drink of whis-
key (or as the case may be), whereby, by force of § 19, chapter 628 of the Laws of 1857,
an action hath accrued to the plaintiff to recover the sum of fifty dollars, for which sum,

and costs, she demands judgment.
A. B., Plaintiff.

IX. PROCEEDINGS RELATING TO ANIMALS STRAYING UPON THE
HIGHWAYS, ETC.

No. 113.
Petition on seizure of strays in public place.
(8§ 8084-3086, 3110.)

To C. D., Esq., Justice of the Peace, of the town of , in the county of

The undersigned, your petitioner, respectfully states :

1. That the following animals (describing them), were, on the day of , A. D.
1880,* running at large (or ‘‘ herded,” or ‘‘ pastured’’), in a public street (or ‘‘ highway,”
or “park,” or ‘‘place”), in said town (or ‘in the village”) of , and were then
immediately seized by and taken into the possession of your petitioner, and are now
kept by him.

2. That your petitioner is the overseer of highways of said town (or “the street com-
missioner of said village,” or ‘‘the owner” or ‘‘occupant of real property, upon which
such public street, etc., borders”).

3. That the owner of the said animals is (or ‘*That the name of the owner of
said animals is not known to your petitioner, and cannot be ascertained by him with rea-
sonable diligence”).

Wherefore your petitioner prays for a final order, directing the sale of the animals so

558
FORMS. [JUSTICE’S MANUAL,

seized, and the application of the proceeds thereof, as prescribed in title 10 of chapter 19
of the Code of Civil Procedure.

(Date.) (Petitioner's signature. )
State of New-York, re
County ‘5 :

, being duly sworn, deposes and says that the foregoing petition is
truet to his own knowledge, except as to those matters therein stated to be alleged upon
information and belief, and as to those matters he believes it to be truet.

(Jurat as in No. 6.) (Petitioner's signature.)

[Note.—The words ‘tin fact” may be safely substituted for the matter inclosed between the tt.]

No. 114.

Petition on seizure of strays on private lands.
(§§ 3085, 3086.)

(As in No. 118 to the *, then proceed :) trespassing upon real property in the said
town (or ‘‘ village ”) of , owned (or ‘‘occupied”’) by your petitioner, having entered
thereupon from a public street (or ‘‘highway,” or ‘‘ park,” or ‘‘ place’’) bordering upon
such real property, in the said town (or ‘‘ village”), and were then seized by and taken
into the possession of your petitioner, and are now kept by him.

2. That the amount of damages, sustained by your petitioner by such trespassing, is

dollars.

8. (Add subdivision 3, prayer for relief, and affidavit of verification as in No, 118.)

No. 115.

Precept thereon.

(§§ 3087, 3135, 22.)

The People of the State of New-York to , owner of the following described ani-
mals (or ‘‘to all persons having any interest in the following described animals,” if the
owner's name is not stated in the petition):

Whereas a petition, dated the day of , 1880, has been presented to the un-
dersigned, a justice of the peace of the town of , in the county of , Stat-
ing (here state substance of petition, describing animals seized) and praying for a final order
directing the sale of the said animals, and the application of the proceeds, as prescribed
in title 10 of chapter 19 of the Code of Civil Procedure:

You are, therefore, required to show cause before the undersigned, on the day
of , 1880, at o’clock in the noon, at his office, [No. , street, ]
in the town (or ‘‘ village”) of , why the prayer of the petition should not be
granted.

(Date.) C. D., Justice of the Peace.

({Nore.— Constable's certificate of personal service can easily be drawn from the forms in No. 2. If
the precept is to be served by an elector, the indorsement authorizing him to serveit can be prepared
from No. 3, and the affidavit of the elector will require only the changes mentioned in No. 117, post.]

559
JUSTICE’S MANUAL. ] FORMS.
No. 116.

Constable’s certificate of service by posting.

(§ 3088.)

I hereby certify, that* on the day of , A. D. 1880, I served the within pre-
cept, by posting a copy thereof in each of the following public conspicuous places in the.
town of (naming the places, at least siz).

(Date.) (Constable's signature.)

No. 117.
*
Affidavit of elector of like service.
(§ 3008.)
State of New-York, a

County of her

P. Q. being duly sworn, says:

I am an elector of the town of , in said county, and the person designated in

the annexed authority: (continue as in last form from the *, add signature and jurat, as in
No. 6.)

No. 118.

Order of sale.

(§§ 3091, 3110.)

In the matter of the petition of A. B. for |
the sale of certain animals seized by him |

under chapter 19, title 10, of the Code ( Before C. D., Justice of the Peace of the

of Civil Procedure, and the application tom of yeounty at
of the proceeds, etc.
Whereas, a petition, dated the day of , 1880, was presented to the said

justice, stating (state substance of petition); and, whereas, a precept directed (state direc-
tion) was forthwith issued thereon, requiring, etc. (state its contents); and, whereas, such
precept was served (state date and mode of service); and, whereas, no person appeared
on the return day of said precept and answered (or, if an answer was put in, state pro-
ceedings thereon, including the verdict or decision) :

Now, on motion of said A. B., it is ordered that the said animals be sold, and the pro-
ceeds thereof applied, as prescribed in title 10 of chapter 19 of the Code of Civil Procedure.

(Date. ) C. D., Justice of the Peace.

No. 119.

Warrant thereon.

(§§ 8091, 22, 3185.)

The People of the State of New-York, to any constable of the county of , greeting:

Whereas, a final order was made by the undersigned, justice of the peace of the town

of , in the county of , on the day of , 1880, in a special
560
FORMS. [JUSTICE’S MANUAL.

proceeding pending before him, taken pursuant to title 19, of chapter 19, of the Code of
Civil Procedure, wherein A. B. was petitioner, directing a sale of (here describe the ani-
mals), and the application of the proceeds thereof, as prescribed in title 10, chapter 19
of the Code of Civil Procedure :

You are, therefore, commanded to sell the said animals at public auction, for the best
price which can be obtained therefor; and to make return thereof to the undersigned on
the day of , 1880.

(Date.) C. D., Justice of the Peace.

Notice of sale thereunder.

By virtue of a warrant, issued, pursuant to title 10 of chapter 19 of the Code of Civil

Procedure, by C. D., Esq., justice of the peace, I have (conclude as in No. 91, from the *).

No. 120.

Verdict for party answering (entry in docket-book.)
(§§ 3096, 3110.)

The jury find in favor of O. P., and fix the value of each animal seized as follows:
(state the value of each; if the verdict is that the seizure was malicious, add :) the jury further
find that the seizure of such animals was malicious, and without probable cause, and
assess the damages sustained by the said O. P., by means of the seizure and detention,
at the sum of dollars.

No. 121.
Final order thereupon (entry in docket-book).

(§§ 3096, 3110, and No. 83, ante.)

Upon such verdict it is, therefore, ordered, this day of , 1880, that the
possession of the animals so seized (describing them) be and is hereby awarded to the said
O. P.; or, if the same cannot be so returned, that the sum of (value of the chattels) be
and is hereby awarded to the said O. P., against the petitioner, A. B., with dollars,
the costs of this proceeding. (Jf damages are allowed by the jury, add ‘‘also that the
sum of dollars, being twice the sum assessed as his damages, be awarded to the
said O. P., against the petitioner, A. B.”)

No. 122.

Warrant thereon.

(§ 8096.)

The People of the State of New-York, to any constable of the county of ‘
greeting:

Whereas, upon the verdict of a jury entered in a proceeding between A. B. and O. P.,
under title 10 of chapter 19 of the Code of Civil Procedure, I entered a final order (state
the substance of order, No. 121, ante):

Now, therefore, you are hereby commanded to deliver the said animals to the said O.

[71] 561
JUSTICE’S MANUAL] FORMS.

P., if the same can be found within your county, and, in case a delivery cannot be so
had, to satisfy the said (etc., as in No. 87).

No. 123.

Demand of possession before trial, and affidavit thereupon.

(§§ 3097, 3098, 3109, 3110, 3114, 3115.)

(Title of cause, as in No. 118.)

State of New-York, U ss
County ; ;
, being duly sworn, deposes and says :

1. That O. P. is the owner of the following described animals seized), in the above en-
titled proceeding (describing them.)

or 1, That O. P., at the time of the seizure of the animals mentioned in the above enti-
tled proeeeding, was entitled to the possession of (describe the animals seized), by virtue
of (describe his special property therein).

2. (If such is the fact, § 3098.) That the running at large (or ‘‘herding,” or ‘‘ pas-
turing,” or ‘‘trespassing”), by reason whereof such seizure was made, was caused by
the wilful act, intended to effect that object, of A. B. (or ‘‘of a person unknown to
this deponent.”) That (here state the facts showing that the animals were set at large, with
such intent.)

3. (If such is the fact, § 3115.) That deponent is the duly authorized agent of the said
O. P.

(Jurat, as in No. 6.) (Deponent’s signature.)

Indorsement. Pursuant to § 3097 of the Code of Civil Procedure, the undersigned O.
P. hereby demands the possession of (describing the animals demanded).

(Signature.)

[Notx.—It is not essential that the name of the person should be given; he may be described as a

person unknown. If the deponent is not able to establish the intent by his own affidavit, he must
produce other proof, by affidavit or oral testimony.]

 

No. 124.
Demand after final order and before sale.

(§§ 3101, 3109, 3110.)
(Title of cause, as in No. 118.)

State of New-York, | ,,
County ; i
, being duly sworn, deposes and says:

(Here insert subd. 1 and 3 of No, 123); or so much thereof as ts necessary.)

3. That the reason why he failed to appear upon the return of the precept (or ‘‘ upon
the trial”) was that (here state the reason, showing satisfactory excuse therefor).

(Jurat.) (Deponent’s signature.)
‘+ Indorsement. Pursuant to § 3101 of the Code of Civil Procedure, the undersigned,
O. P., hereby demands the possession of (describing the animals demanded).

(Signature.)
562
FORMS. [JUSTICH’S MANUAL.

No. 125.
Undertaking on appeal from final order, by party answering.

(§ 3105.)
(Title of cause, as in No. 118.)

Whereas, on the day of , 1880, a final order was entered in the above en-
titled proceeding, to the effect that (state substance of order); and whereas, the said O. P.
intends to appeal from said order to the county court of the county of

Now, therefore, we do jointly and severally undertake, pursuant to the statute, that
if the appeal is dismissed, or if judgment is rendered against the appellant in the appel-
late court, and an execution issued thereupon is returned wholly or partly unsatisfied,
the said surety will pay the amount of the judgment, or the portion thereof remaining
unsatisfied, not exceeding one hundred dollars; and also that if the final order appealed
from is affirmed, or if the appeal is dismissed, the appellant will pay all sums, which the
justice awards against him, upon the hearing after the determination of the appeal, as

prescribed in § 3106 of the Code of Civil Procedure, not exceeding the sum of (See
the following note as to the amount).
(Date.) (Signatures. )
(Add acknowledgment and justification, asin No. 7, ante. See the following note as to
approval.)

([Norg.—The sum to be inserted at the end of this undertaking must be fixed, and the undertaking
must be approved, by the county judge or justice of the eapueme court who grants the order speci-
fied in section 3105, and the undertaking must be filed with the justice (sections 3051, 3105) when that
order is fled with him. The appellant need not join in it; and one surety suffices.]

X. SUMMARY PROCEEDINGS TO RECOVER REAL PROPERTY.
No. 126.
Notice to pay rent or surrender possession.

(§ 2281, subd. 2.)

To O. P.:
Take notice, that I hereby require from you either the payment to me of the
sum of for rent of the (rooms in the) house and premises No. street, in the
of » now occupied by you, or the possession of said premises, on or before
the day of » 1880 (at least three days after service).
(Date.) (Landlord’s signature.)

No. 127.
Constable’s certificate of personal service of notice.

(8§ 2231, subd. 2, 2240, 2243.)
County of t i
Town (or ‘‘ city of) :

I hereby certify that I served a notice of which the within (or ‘‘annexed ”’)is a copy, on
O. P., on the day of . 1880, at o’clock in the noon, at in the said
town (or *‘city”) by § delivering the same * to him (or ‘“‘toV. W., the secretary”, or
other officer ‘‘ of the said O. P.,”) personally.

(Date.) (Constable's signature.)

563
JUSTICE’S MANUAL. | FORMS.
No. 128.
Same at residence or tenant house.

(To the * as in No, 127, then add) at his dwelling house, to 8. T., (or ‘‘ to a person whose
name is unknown to me”), a person of suitable age and discretion there residing, the said
O. P. being absent therefrom; (or ‘ at No. , street, the property within described,
to 8. T., a person of suitable age and discretion residing there”; or ‘‘ to 8. T., a person
of suitable age and discretion employed there, no person of suitable age and discretion
residing there being found there, and no such person, with reasonable diligence, being
found at the residence of said O. P., in said town, who resided there.) I further certify
that a copy of section 2241 of the Code of Civil Procedure was indorsed upon the notice so
served, as appears upon the annexed copy thereof.

(Date.) Constable's signature.

(Nots.— If the name of the person to whom the copy is delivered cannot be ascertained with rea-
sonable diligence, insert in place of S. T.in the foregoing form the following: “a person whose
Dame could not be ascertained by me, with reasonable diligence,”’]

No. 129.
Same by posting.
(To the § as in No. 127, then add) affixing a copy thereof upon a conspicuous part of
the within described premises; and I further certify that I was unable, with reasonable
diligence, to serve the same in either of the modes specified in subdivisions 1 and 2 of §

2280 of the Code of Civil Procedure.
(Jurat, as in No. 6.) (Constable's signature.)

No. 180.

Notice to quit.

(§ 2286; 1 RB. S., 745, §§ 7-11; 1 Edm., 696, 697.)

To O. P.:

Sir — Please take notice that I hereby require you to remove from (describing the prem-
ise) on or before the day of , 1880.

(Date.) (Landlord’s signature.)

No. 131.
Affidavit of service of same.

(1 R. 8., 745, § 8 [1 Edm., 696].)

State of New-York, t os

County of , 2

E. F., being duly sworn, deposes and says, that on the day of in

the year 1880, he served upon O. P. anotice of which the within (or “annexed”) is a copy,*
by delivering it to him personally.

(Jurat, as in No, 6.) (Afiant’s signature.)

564
FORMS. [JUSTIOE’S MANUAL.

The same, where service was not personal.

As in the foregoing to the *, then add: ‘‘ by delivering itto S. T.” (or ‘a person whose
name is unknown to deponent”’), ‘‘a person of suitable age and discretion residing upon
the premises within described”; or ‘‘by affixing it upon a conspicuous part of the
within described premises, where it could be conveniently read. And deponent further
says that he could not find the said O. P. [or any person of suitable age and discretion]
residing upon said premises”.

(Jurat, as in No. 6.) (Affiant’s signature.)

No. 132.
Petition to recover leased premises on expiration of term.

(§§ 2281, 2235.)

To C. D., Esq., Justice of the Peace of the town of , county of

The petition of shows :

1. That your petitioner is the lessor (or ‘‘heir,” or ‘‘devisee” or ‘‘assignee”’ or
“agent” ‘of A.B., the lessor”, or otherwise showing his right to apply under § 2235) of
the following premises (describing them).

2. That on or about the day of , 1879, your petitioner (or ‘‘the said A.
B.”) leased unto O. P. of , in said county, the said premises for the term of one
year from the day of , 1879,* which said term expired on the day of

1880
’ i

3. That said O. P. § holds (or ‘‘That O. P. as tenant of the said A. B., and Q. R., as
assignee, or ‘“‘undertenant”, or ‘heir’, or ‘‘devisee of the said O. P. hold”) over
and continues (or ‘‘ continue”) in possession of the said premises (or ‘‘a portion of the
said premises”, describing it), without the permission of the said A. B.

Wherefore your petitioner prays for a final order to remove the said O. P_ (or ‘‘O. P.
and Q. R.”) from said premises. ,

(Date.) (Petitioner's signature.)

(Add verification as in No. 113, ante, retaining the matter between the tt.)

(Notr.— If the tenant is a tenant at will or at sufferance, substitute in place of the first two subdi-
visions a statement of that fact, and that such tenancy has been terminated by the service of the
notice (No. 130, ante) required by law. See § 2236.]

No. 133.
Same on failure to pay rent.

(To the * as in No. 132, then add) at (stating the rental), for each month (or ‘‘ year”

payable (state when) and that the sum of dollars, the rent due on the day of
, 1880, remains unpaid.

3. That a demand for such rent has been made,

Or, 8. That three days’ notice in writing requiring, in the alternative, the payment of
such rent, or the possession of the premises, has been duly served upon the said O. P.,
and the said rent has not been paid, nor has the possession of the premises been sur-
rendered.

4, (Same as in subd, 3 in No. 132, then add), notwithstanding such default and demand
(or ‘notification ”).

Wherefore (conclude as in No. 132, and add verification). :

65
\

JUSTICE’S MANUAL. | FORMS.
No. 134.
Same where tenant becomes bankrupt.

(To ihe * as in No. 182, then add), and that O. P. is now in pdssession of said
premises. ;
3. That on or about the day of , 18 , thesad O. P. was adjudicated a
bankrupt under the United States bankrupt law (or ‘‘ took the benefit of” describing
. the insolvent act.)
Wherefore (conclude as in No. 182, and add verification).

No. 135.

Same where premises are used as bawdy house, ete.
(§§ 2231, subd. 4.)

(To the * as in No. 1382, then add):

3. That said premises are (or ‘‘a portion,” describing it, ‘‘ of said premises, is”) now
used or occupied as a bawdy house, or house of assignation for lewd persons (or, “for
an illegal trade”, or ‘‘manufacture” or ‘‘ business, namely ” stating it.)

Wherefore (conclude as in No, 132, and add verification).

No. 136.
Notice by applicant under § 2232 to quit.
(§§ 2282, 2236.)
To all persons occupying the following described premises, to wit: (describing them):
You are hereby notified to quit the above described premises on or before the

day of , 1880.
(Date.) (Applicant's signature.)

 

No. 187,
Petition to recover land sold on execution, ete.

Z
(8§ 2232, subd, 1, 2235.)

To C. D., Esq., a Justice of the Peace of the town (or “city ”) of in the county
of :
The petition of A. B. shows:
1. That the premises, No. street, in the village of (or other surteble descr ip-
tion) were, on the day of , 1880, sold by virtue of an execution against the

said O. P. (or ‘‘against one R. 8., under whom the said O. P. claims”), and that a title
under such sale has been perfected.
2. That the said O. P. (etc., as in No. 182, from the § to the end, substituting ‘‘ prin-
cipal” for “‘ tenant of the said A, B.,” where the case requires it. Add verification.)
566
FORMS. [JUSTICE’S MANUAL.

3. That a notice, in behalf of your petitioner, requiring all persons, occupying the said
premises, to quit the same on or before the day of , 1880, was served, at least
ten days before the day specified in the said notice, on O. P. [and Q. R.,] by delivering
the same to him [or each of them] personally (or ‘‘ by affixing the same conspicuously
upon said premises”); and that said person continues (or ‘‘ persons continue ”) in pose
session of said premises, nothwithstanding such notice.

Wherefore (conclude as in No. 182, and add verification).

{Norr.— This form can readily be adapted to cases arising under subd. 2 of § 2232; and one of the
Pesos tive tones can readily be combined with subd. 2 and 8 of this form, for cases arising under any
other sul

No. 138.
Petition to recover land forcibly entered or detained.
(S§ 2283-2235, 2245.)

To C. D., Esq., a Justice of the Peace of the town (or ‘‘ city”) of , in the county
of
The petition of A. B. shows:
1. That on or about the day of , 1880, 0. P., with strong hand (or ‘ with

a multitude of people ”), forcibly entered upon, and now holds possession of, the follow-
ing described premises (describing them).

or, 1. That on or about the day of , 1880, O. P. peaceably entered upon
the following described premises (describing them), and now holds the possession thereof
by force.

2. That at the time of such forcible entry, your petitioner was peaceably in actual
possession of said premises.

or, 2. That at the time of such forcible holding out, your petitioner was in con-
structive possession of said premises, as follows, that is to say: (Here set forth the
Sacts showing petitioner's right to possession).

Wherefore (conclude as in No. 132; and add verification).

No. 139.

Notice by neighbor, requiring landlord to apply to remove tenant of
bawdy house, ete.

(§ 2287.)

To P. Q., owner (or ‘‘landlord”) of No. , street, in the of
Pursuant to § 2237 of the Code of Civil Procedure, you are hereby notified and re-
quired to make an application for the removal from said premises of O. P., as he uses
(or ‘‘occupies”) the same, or a part thereof, (describing it), as a bawdy house (or ‘* house
of assignation for lewd persons”’). (Stgnature.)
Owner (or “‘ tenant”) of No. , street, in the immediate

neighborhood of said premises.
(Date.)

 

No. 140.

Petition thereon by neighbor.
(§§ 2231, subd. 4, 2235, 2237.)
To C. D., Esq., a justice of the peace, etc.
The petition of A. B. shows:
1. That P. Q. is the owner (or “landlord”, or ‘‘agent of the owner”, or “ landlord”

of the following described premises (describing them).
56%
JUSTICH’S MANUAL] ‘FORMS.

2. That the said premises are (or ‘‘a portion of said premises,” describing it, is”), now
used (or “occupied ”) as a bawdy house, (07 ‘‘ house of assignation for lewd persons ”’),
and that your petitioner is the owner (ov ‘‘ tenant”) of real property in the immediate
neighborhood of said premises, to wit, No. 5 street (or other description.)

3. That said O. P., (etc., as in subd. 8 of No. 182, from the § to the words, ‘the said
premises.)

4, That on the day of , 1880, your petitioner served on the said P. Q. a writ-
ten notice, requiring him to make application for the removal of the said O. P., the per-
son so using or occupying said premises. (Jf more than one person named in the notice,
insert the other names.)

5. That P. Q. has not made such application, (or ‘‘that P. Q., having made such appli-
cation, does not diligently prosecute the same.”’)

Wherefore (conclude as in No. 132, adding the verification).

No. 141.
Precept in any case under this title.
“&§ 2238, 2339, 2241, last sentence, 2242, 22, 3135.)

The People of the State of New-York, to O.P., (naming all the persons proceeded against).

Whereas, on the day of , 1880, A. B. presented to me a petition duly veri-
fied, stating that (state substance of petition with description of premises), and praying for
a final order to remove you from the said premises:

You are, therefore, required forthwith to remove from the said premises; or to show
cause before me, at my office [No. street, ] in the town (or ‘‘ city”) of , on the

day of 1880, at o’clock in the noon, why possession of said premises

should not be delivered to the said petitioner (or, if under § 2237, ‘‘to the said <<
owner or landlord).

(Date.) C. D., Justice of the Peace.

|Norre.—For the time when the precept must be returnable, see § 2238. For proof of service of pre-
cept, see Nos. 127-129, adding, where the precept is personally served, “and at the same time showing
him the original.” If the precept is made returnable on the same day, under § 2240, the hour of ser-
vice must be stated. But, if the proceeding is taken against the owner and also the tenant of a
bawdy house, etc., the two following forms will be used in place of Nos. 127-130.]

No. 142.

Constable’s certificate of service of precept under § 2242.

T hereby certify that I* served the within precept on P. Q., the owner, (or ‘‘ landlord”,
or ‘upon X.Y., agent for P. Q., the owner”, or ‘‘landlord ”,) and also upon O. P., tenant
(or ‘occupant ”) of the premises described therein, on the day of , 1880,
at o’clock in the noon, at (place,) by showing to each of them the within (or
‘annexed ”) original precept, and by delivering a copy thereof to each of them.

(Date.) (Constable's signature.)

No. 148.

Affidavit of like service.
State of New-York, ! ag

County,
V. W., being duly sworn, says that he (conclude as in last form from the *).
(Jurat, as in No. 6.) (Signature. )

568
FORMS. [JUSTICH’s MANUAL.

No. 144.

Statement to be made by person served for another.
(8 2241.)

Ido hereby certify that the within copy of a precept was delivered to me on the
day of , 1880, at o’clock in the noon; that I thereupon, without any
avoidable delay, endeavored to find the within named , to whom the precept is
directed ; and that, after the exercise of reasonable diligence, I have been unable to find
him or his agent in the town (or ‘city ”) of

(Date.) (Signature.

No. 145.
Answer.

(§ 2244.)

In the matter of the application of A. B.,
for the removal of O. P. from certain
premises, under title 2 of chapter 17 of
the Code of Civil Procedure.

O. P., for an answer to the petition in the above entitled proceeding, dated the
day of , 1880, denies that (state the allegations in the petition denied.)

(Date.) O. P.

(Add verification as in No. 118. ante.)

| neon C. D. Esq., Justice of the Peace.

No. 146.
Answer in case of forcible entry or detainer.

(§$ 2244, 2245.)
(Title of cause, as in No. 145.)

O. P., for an answer to the petition in the above entitled proceeding, dated the .
day of , 1880, denies each and every allegation as to the forcible entry (or ‘forcible
holding out”) set forth in said petition:

or O. P., for an answer, to the petition in the above entitled proceeding, dated the
day of , 1880, alleges that he, or his ancestor, or those whose interest he claims, had
been in quiet possession of the property mentioned in the said petition, for three years
together, next before the forcible entry (or ‘‘ detainer”’) alleged in the said vetition, and

that his interest therein is not ended or determined.
O. P.
(Add verification: as in No. 118, ante.)

No. 147.
Final order against defaulting tenant.

(8§ 2249-2251.)
(Title of cause, asin No. 145.)
A petition having been presented to me in this cause, by A. B., pursuant to § 2235 of
the Code of Civil Procedure, and a precept, returnable this day, having been issued by

[72] 569
JUSTICE’S MANUAL] FORMS.

me thereupon, pursuant to § 2238 of the Code of Civil Procedure, directed to 0. P. [and
Q. R.,] and the same having been duly served on the saidO. P. [and Q. R.,]¥and due
proof of such service having been duly made as prescribed by § 2248 of the Code of
Civil Procedure, and the said 0. P. [and Q. R.,] upon the return of the said precept,
not having shown cause, as required by the said precept:* ;

It is hereby ordered and determined, that the sum of dollars became due on the
day of , 1880, from the said O. P. to the said petitioner, for rent of the property
described in the said petition, and the said sum, with interest from that date, remains
unpaid to the said petitioner; that the said O. P. holds (or ‘‘the said O. P. and Q. R.
hold”) over after default in the payment of said rent, without permission of the petitioner;
that the possession of the said property be delivered to the petitioner; that he recover
against the said O. P. the sum of dollars for the costs of this proceeding, and that
a warrant issue to put him in possession, and an execution to collect the said costs.

(Add items of costs, sce § 3078.)

(Date.) C. D., Justice of the Peace.

If there was a trial, substitute, for the matter between the **, or after the second *, if one
answers and the other makes default, the following and the said O. P., having, when
the said precept was returnable, filed his answer as required by § 2244 of the Code of
Civil Procedure, and the issue joined by the petition and answer having been tried by
me (or “by a jury procured and empanelled as prescribed in § 2247 of the Code of Civil
Procedure”), and my decision thereupon being in favor of the petitioner (or ‘‘the ver-
dict of the jury having been in favor of the petitioner”), and that the amount of rent
due him is dollars, which was payable on the day of , 1880:

It is hereby, etc.

LNotr.—The foregoing order can be varied as required to adapt it to any other case under under 8
2231 or § 2282. If the justice’s docket-book contains full entries of the matters stated in the recit-
als, the latter may be omitted.]

No. 148.
Warrant to dispossess, when defendant makes default.
(§§ 2251, 22, 3185.)

The People of the State of New York, to the sheriff of the county of , or to any
constable of the town of , county of » greeting:

Whereas, on the day of , 1880, A. B. presented to me a petition duly veri-
fied, stating that (state substance of petition, including a description of the premises,) and
praying for a final order to remove O. P. [and Q. R.] from said premises ; upon which
petition I issued a precept, requiring the said forthwith (state substance of precept)
which precept was returned with due proof that service thereof was made on the said

, on the day of , 1880, at o’clock in the noon, and whereas, * cause not
having been shown upon the return of said precept against granting such petition,* I
entered a final order awarding to said petitioner the delivery of the possession of said
property, (or, if under § 2287, ‘‘ directing the removal of said occupant ”).

Now, therefore, you are hereby commanded to remove all persons from the said
premises,t and to put the said A. B., petitioner, into the full possession thereof.

(Date.) . C. D., Justice of the Peace.

If the proceeding is under § 2237, omit all after the t,

570
FORMS. [JUSTICE’S MANUAL.
No. 149,
The same, after a trial.

(As in No. 148, to the first *, then add) ‘‘the said O. P. having, when the said precept
was returnable, filed with me a written answer, as prescribed by § 2244 of the Code of
Civil Procedure, whereupon the issues joined by the petition and answer were tried by
me (or ‘‘by a jury, procured and empanelled as prescribed by law”) and my decision
(or ‘‘the verdict of the said jury”) wasin favor of the petitioner, whereupon, (etc.,
Conclude as in No. 148 from the second *.)

.

No. 150.

Undertaking to stay warrant and execution.
(§ 2254, subd. 1 and 2.)

(Title of cause, asin No. 145.)

Whereas, on the day of , 1880, delivered to C. D., the justice
above named, a petition, duly verified, stating that (state substance of petition, describing
the premises), and praying for a final order to remove from said premises ; and,
whereas, such proceedings were had upon said petition, that a final order was entered
by said justice on the day of , 1880, granting the prayer of said petition,
determining that the sum of , with interest from , is due to the said A. B. for
rent of the said premises and remains unpaid (or otherwise, as stated in the order ; see No.
147), and awarding to the sum of , costs of said proceeding :

Now, therefore, for the purpose of staying the issuing of a warrant on such order,
we do jointly and severally undertake, pursuant to the statute, in the sum of
dollars, that * the said O. P. will pay the amount of said rent and costs witbin ten days
from the date hereof, (or, if under subd. 2, “‘the rent of the said premises, as it has become
or hereafter becomes due ”’).

(Date.) (Signatures. }

(Add acknowledgment, justification, and approval by justice, as in No. 7, ante. The justice
must siz the amount to be inserted in the blank, and the number of sureties required : the
appellant need not execute the undertaking.)

No. 151.
Affidavit to stay warrant, etc., where premises were sold on execution.

(§ 2254, subd. 3.)
(Title of cause, as in No. 145.)

State of New-York, t ag
County. .

, being duly sworn, says, that he is the defendant in the above
entitled proceeding, that he claims the possession of the property described in the peti-
tion in the above entitled proceeding, by virtue of aright or title acquired to the same
after the sale of said property as mentioned in said petition, (or ‘‘as guardian” or
‘‘trustee” for X. Y).

(Jurat, as in No. 6.) ere)
5
JUSTICE’S MANUAL, | FORMS.

No. 152.
Undertaking thereon to stay proceedings.
(§ 2254, subd. 3.)
(Title of proceeding, as in No. 145.)

(Zo the * as in No. 150, then add), the said O. P. will pay any costs and damages,
which may be recovered against him in an action of ejectment to recover the said prem-
ises, brought against him by the said petitioner within six months from the delivery
hereof; and that he will not commit any waste upon or injury to the said premises, during
his occupation thereof.

(Date.) (Signatures.)

(Same remarks as at end of No. 150, ante.)

J No. 153.
Undertaking on appeal by tenant.
(8§ 2262, 3050.)
(Title of proceeding, as in No. 145.)

Whereas the above named O. P. has appealed (or ‘‘intends to appeal”) to the county
court of the county of , from a final order entered in the above entitled proceed-
ing on the day of , 1880, by the said justice in favor of the said petitioner -

Now, therefore, for the purpose of staying the execution of said order, we
do jointly and severally undertake, pursuant to the statute, in the sum of
dollars, that, if the appeal is dismissed, or if judgment is rendered against the appellant
in the appellate court, and an execution issued thereupon is returned wholly or partly
unsatisfied, we will pay the amount of the judgment, or the portion thereof remaining
unsatisfied, and also that, if, upon such appeal, a final determination is rendered against
the said appellant, he will pay all rent accruing or to accrue upon the said premises (de-
scribing them ; or, if there is no lease thereof, ‘‘ the value of the use and occupation of the
said premises,” describing them), subsequent to the institution of this special proceeding, _
to wit, the day of , 1880.

(Date.) (Signatures. )

(Add acknowledgment and justification as in No. 7, ante. The sum to be inserted in the
blank must be fixed, and the sureties must be approved, by the county judge who grants the or-
der to stay proceedings. The appellant need not join in the undertaking, and one surety suf-
Jices, unless the county judge otherwise directs.)

XI. PROCEEDINGS TO FORECLOSE A CHATTEL LIEN.
(The summons is in the ordinary form, see No. 1.)

No. 154.
‘ Complaint to foreclose a chattel mortgage.

| (§ 1787.)
(Title of the cause, as in No. 5.)

The plaintiff complains that on or about the day of , 1877, the defendant
executed to hima certain chattel mortgage, of which a copy is hereto annexed marked
A.; that the said mortgage has been duly filed and renewed as required by law, and is
now in full force; that the sum of one hundred dollars, mentioned in the said mortgage,

572
FORMS. [SUSTICE’S MANUAL.

isnow due and payable, with interest from the day of , 1879, and no part
thereof has been paid; and that the plaintiff has a lien for the said sum upon the chat-
tels specified in the said mortgage; wherefore the plaintiff demands that his lien upon
the said chattels may be foreclosed, as prescribed in article second, of title second, of
chapter fourteenth of the Code of Civil Procedure.

(Date.) A. B., Plaintif:

ease des form can easily be varied so as to adapt the complaint to any of the other cases where
a lien may be thus foreclosed. See the notes to § 1787. A lienupon a vessel, orany other lien for the
a a ee aspecial statutory remedyis provided, cannot be foreclosed by these proceed-
ings. See

No. 155.
Affidavit to procure warrant, to seize chattel.

§ 1740.)

(Title of the cause.)
State of New-York,

County of { Sik

A. B., being duly sworn, says that he is the above named plaintiff; that the matters
set forth in the foregoing complaint are true in fact; and that this deponent is not in
possession of the following chattels, enumerated in the chattel mortgage, of which a copy
is annexed to the complaint, or of either of them, to wit: (Here enumerate the articles to
be seized under the warrant.)

(Jurat as in No. 6.) A. B.

No. 156.
Undertaking thereon.

(§ 1740.)
(Title of the cause.)
Whereas, the above named plaintiff has applied fora warrant to seize the follow-
ing chattels, as prescribed in section 1740 of the Code of Civil Procedure:
Now, therefore, etc., (as in No. 15, substituting ‘‘ warrant” for ‘‘attachment” or.
“warrant of attachment”).
(Add acknowledgment, justification, and approval, as in No. 7, ante.)

No. 157.
Warrant to seize the chattel.

(§ 1740.)
Title of the cause.)

The People of the State of New-York, to the constable to whom the within (or ‘‘ an-
nexed ””) summons is delivered:

Whereas, an application has been made to the undersigned, by the above-named
plaintiff, fora warrant, pursuant to section 1740 of the Code of Civil Procedure, to seize
the chattels hereinafter described, this action being brought to foreclose a lien upon the
same, and the plaintiff not being in possession thereof; and due proof by affidavit of
the facts has been made, and security has been given, as prescribed by law:

573
JUSTICE’S MANUAL. | FORMS.

Now, therefore, you are hereby required to seize the following chattels, to wit: (describ-
ing them) and safely to keep them, to abide the judgment in this action.
(Date.) C, D., Justice of the Peace.

No. 158.
Judgment in action to foreclose lien.

(§§ 1740, 3014-3016, 3140-3142.)
( Title of the cause.) .

(After making in the docket-book the usual entries of isswing summons, warrant to seize
chattel, if any, appearance, joinder of issue, pleadings, adjournments, venire, jurors, witnesses,
etc., see No. 83, insert as the judgment the following): After hearing the evidence (and the
arguments of counsel, 7f any), the jury retired under the charge of a constable
duly sworn for that purpose, and afterwards, returning into court, found by their ver-
dict that the plaintiff had alien upon the chattels (or ‘‘upon the following chattels,”)
described in the complaint (enumerate them) to the amount of dollars, which ver-
dict was received on the day of , 1880. Whereupon I did forthwith, and upon
the day of , 1880, render judgment that the plaintiff had a lien upon the follow-
ing described chattels (enwmerate them) to the amount of dollars; thatthe said chat-
tels be sold to satisfy the amount of said lien, with interest from this date, and the sum of

costs of this action, by a constable of the said county, in like manneras where a
sheriff sells personal property by virtue of an execution; that such constable apply
the proceeds of such sale, less his fees and expenses, to the payment of the amount of
the lien and the costs aforsesaid; and thatsuch constable pay the surplus, if any, to the
county treasurer, for the benefit of the owner thereof.

(Add items of costs allowed, see § 3078.)

No. 159.
Notice of sale.

(§§ 1740, 1428, 1429.)
(Title of the cause.)
Pursuant to a judgment in this action, rendered by O. D. Esq., Justice of the Peace,
as prescribed in section 1740 of the Code of Civil Procedure, I have (conclude as in No.
91 from the *).

[Norx.—In these proceedings no execution is necessary. The justice delivers a certified copy of
the judgment to the constable, and he proceeds thereunder as under an execution.]

XII. JUSTICE’S BOND.
No. 160.
(L. 1878, ch. 107.)

Know all men by these presents, that we, C. D., as principal, and E. F. and G. H. as
sureties, (two sureties required, in addition to the justice), of the of , in the

574
FORMS. [JUSTICH’S MANUAL.

county of , and State of New-York, are held and firmly bound unto the people
of the State of New-York in the sum of dollars; for which payment well and truly
to be made, we do bind ourselves, our heirs, executors and administrators, jointly and
severally, firmly by these presents.

Sealed with our seals, Dated this day of , in the year one thousand eight
hundred and eighty.

Whereas the said C. D. has been elected a justice of the peace of the town of ‘i
in said county of , now, therefore, the condition of this obligation is such, that if
the above bounden ©, D., as such justice of the peace, shall pay over on demand to the
officer, person, or persons entitled to the same, all moneys received by him in virtue of
his said office, then this obligation to be void, otherwise to remain in full force and
virtue.

C.D. [L. 8.]
E. F. (1. 8.]
G.H. [1 s.]

(Add acknowledgment, justification, and approval as in No. 1, except that the approval must
be signed by the supervisor of the town, unless the justice is the supervisor, when it must be
signed by the town clerk ; and in a city, it must be approved by the common council.)

575
INDEX.

(The references are to the pages.)

Abatement of action :

 
  

  

   

Page
for a wrong, not produced by death after verdict, etc........ so beus SeRLGe aaies . 209
Abbreviations :
may be used in process, pleadings, etC..........eeeeeeeeee ees sieae ines piereseieasia < 160
Absconding parent :
proceedings against. . 3 cas cuss cease neira ee Seer ete tees he eae Oa ere aE Eee 495
Absence :
from the State, effect of, on limitation of action. .................0eeeee 179, 180, 185
United States, presumption of death in case of. ......... 20. cc cece eee eee eee 220
Account:
action on, when justice has jurisdiction of...........-...+.+- 5
Pleadings Ns «i... 2 sje <a Haeeewaamieserle 42
exhibition of, how compelled ...........0. ce cece cece cece ee ee eeeneee 48, 452, 453
accounts exceeding $400, judgment thereon............. se eee cece eee sue ee Ged 46
in N. Y. district court..... 2600 cece cae cae ec cence 141
in Albany and, Troy és. 4i% scaases sews voes sees cae ss 146
in Rochester municipal court ............- aaemeasinaen 148
of fees, justice in Brooklyn to render... ...... cece ee ee cee cence eeee cee eneees 119
HetiOn: ON; WHER MACCTUES), 66.5 c cine crac eraeld eRe wera NCEE Was eee eee ERS Soo 179
books of, how produced .............ee ccc eeeee eerenes eer rT eT ere
of fees, etc., how rendered
Acknowledgment:
of indebtedness, when repels presumption of payment............... sate dene? Me R6 173
to bar limitation, must be in writing...............e cece seen 182
of bond, when required... .......06 cece cee eee ence ee ee eee tenner en reeeees 211
of conveyance, makes it evidence, certificate not conclusive .............e seen ee 236
of certain instruments, makes them evidence....... .. ce see cree ee eee teens 236
Hele jUstice.cisscaewcgas shoes ssa s i Gewese SHE ses eine eae ce twee sewer 422
Action (See CausE or ACTION ; PARTIES) :
what actions justice has jurisdiction of.................-- acid cet etoretne anes 3-7
place: Of trialiof mecuucease cad otiaticiy en gis po ves seit esa nmee 7, 374, 396, 397, 399
How. ComMenced, 5:5 sve ccs iiss one sion eb aes oes gee ee ewes aves ceases ee tens ee eee 10, 1388
for a chattel. (See ACTION FOR A CHATTEL.)
on bond given by third person on claim to property attached...... Sie ie Ba iee.a saree 31
on undertaking in replevin.......... cece cece eee ee ene eens cera 39, 284, 285
when barred by neglecting to plead counterclaim............. xa diarem sete ulate aaa 44
after answer Of titles ccciscics ease wcine sega dake seme ngeseeeee neers He ea ee ticaaere AG
to recover costs paid on answer of title.......... 1G Fa eee we 48
against defaulting witness, for damages....... scoseeeseeceeces ov
INDEX.

Action (Continued) :

  
 
 

 

   

  

against sheriff, for refusing to discharge prisoner............0+.ceeeseceeeerees 77
constable for failure to return execution............0. cece cece eee eee %8
to pay over money collected.............. at eee 78
to recover costs wrongfully collected .......... 0. cece cece ee eee etree eeeeens 97
animals straying (See STRAYS) ... 99, 109, 118
transfer of, to another justice vie ... 22, 183, 184
provisional remedies in, in New-York, Albany and Troy... ...... cece eee ee eee - 188
abatement of. (See ABATEMENT.)
parties to, may appear in person or by attorney......... 6. cece eee eee e eee eeeee 164
when deemed commenced, as to statute of limitations.............. 20 :eeeeeeee 183-4
on securities taken by an officer or trustee in actions.............++.- eae sees 209
for illegal arrest of witness............eeeeeeeeee Saat RWRs 1 BAT Maes Bree BORE Rare 224
right of, for seizure of exempt property, exempt........ cece eres eee es ere cereee 263
of trespass in certain caseS.... 2... cee eee cee tenet ee ee eeeee 267-268, 394, 485
by joint tenant or co-tenant...... 00... cece cee eee tee tent eeeeee veeee 268
to foreclose chattel lien (See ACTION To FORECLOSE, etc.)............ sseasvess 285
relating to corporations (See CORPORATIONS.)....... seedesseeeitesageiaces 288
executors, etc. (See EXECUTORS, CtC.).......6. cece eeeece neces 5 292, 394
for penalty or forfeiture eg PBENAUMTY,) 603-4 6.0044043 500 35,08008 5 3.0940,0'% 293, 318, 395
for damages for wrongs (See DAMAGES; REAL PROPERTY.).......- 267, 296, 394, 485
by transferee of Claim sc:.sccsivoesienetetevisedieeetatens BVa sada temed wes 297-299
tight of, when assignable........ ..... sarees Bure. dade a ae SoS Ree S 298-299
OW FUME Mentos ieee bearer sawed eb amah neds at Ae RRR aE 71, 184, 299
OM PENAL DON” onc scsi cies edn e sdie eo Raed dog odie Sereie dey een Sip Rete eae seee es 300
by surety, etc., to recover costs Of Sit... ... cc cece cee eee cece ee te eee eeneee 301
OD MOSEL MOTO é-axe26.0insans, ssardco aisle diptase 6 Wiad. du ele oois. Wide die pie ce eie preIN e-ERRT DeS e SS 301-302
by or against association (See ASSOCIATION; STOCKHOLDER.).............+-0005 308
officers of towns, etc. (See OFFICERS. Jesse ulate dois dcoieaaue eee 307, 399, 400
against and between joint debtors (See JOINT DEBTORS.)..............2 00005 71, 310
upon bond for jail liberties. (See Bonn.)
limitation of. (See Lrmrratron.)
AeANMIOM OL: Jio4 ase peta sees teen eee eee sak Meee Dees os Sea Sab eae 191, 355, 358
of ejectment .. eevee shuentiSy ee 358
division of .............. 3 355
GOAAIGION OL CEUTA csc ss sis casa recs gisucvdse dia cssenoin.le Kase diniererdioreepieieteie wand oPSe eae ea eee 355
OL CL VAN 4 tecors 3 ai syscace, 2 Sane iansiges: aintesanaud nveizioases Sadan BauaoiRteug at 356
parties to civil, how styled........ 0. cece cc ccc cece et ee eee etn ce ee eeeeeeaee 356
at law and equity, distinction between abolished ...... ........-eceeeee ee eens 356
application of the Code 0... .... cece cee cence eee eet eee eneee: -.. 860
id., when action deemed commenced........... cc cece cece ete cece cet e eee esses 363
proceedings taken in, when not affected by Code......... ccc cece eee eee ee enone 364
in behalf of the people. (See PEOPLE OF THE STATE.) .......... ec cee eee eeeee 318
by or against town or county................55. i vapieecens alavaveue aun sna aesuieexe Srioauenaits 399, 400
Action for a chattel:
JUTISCICHON: OF 5.) calauisaala: capella slamnee-sigteae esige veanaiumiieuiee epee Sele sees eee 3
arrest of defendant in............... eid aaa Biesweasone Sng sree ear S “ignores aw Sa Waele ee Bes 21
when may be brought........ . occ ccc cc ete cece ene centenceesececeeeecee 34, 272
when chattel may be replevied.... 0.0... cc. cc ccc ccc eee e cence cee ceaueereuneue 35
affidavit and undertaking to replevy... 2.1... . cece cece e cece eee eee 281
requisition, form of (See Forms, requisition) 85
HOW EXCCULE 5 wiuiinmene omeare canna sa saegies a8 277
Teturn.Of: CONSTADION 6.6.0 6.c0-5 aes eseceeace vie eigveiaibrs-4. v U8 a ohio g Ole eth ae Waee eho d eee e se. oI
exception to plaintiff's sureties ...... 0.0... eee cece cece eee teen cer ee ceeees 36
reclaiming chattel by defendant................ cece eee eee eee ween. 87, 275, 278, 281
Justification.Of ‘BUFCLIOS.. 1. seis ck haa nawe Seah aeeebegaet ee ine yea edes 87, 207
delivery of chattel, to whom .......... cece cc cee tence ee eueee ree 37
penalty for Wong so ..ccaee eed goens ogee deeaaed eeseee teas 38
claim of title by third person... ...... ccc cc cece cece ec ec eee een eeaeeee 88, 279-281
defendant may demand judgment for return............0. 0. cee cece eee cen ace 38
damages and JUAEMEOD E66 cece en iaie cuit ece desea Heibs p nies eine le alttnteeasbw's eed 39, 281-283
SOOM ics ios aad Ria hd aoe AWA TE KA DE OER URONERE VERRAD BEERS 89, 77, 258, 284
action on undertaking Dueliuetadnieita ni ave Gea egies Maren are dia Sonsicnhasiatensa widen aus 39, 284. na
summons not personally served, proceedings On........... cece eee ee eee eee eee .
chattel. not: repleviedssc..e0 cscs vs wed Saeeiactedinig ges dgalneeeaes ee eres! cee es cewax a
after answer of title to land........ 0... cece cc cee ce cee cece ere eenes Stivemeds 48

578
Action for a chattel (Continued):

 
 

 
 
  

Pago.
transcript of judgment...............eeeee iowa See a es Keeew oon Sani aay -- 70
TD BOOK YA, escavefaieis ais tySe ORLA SSE NEA ares ORES S BOs Smee OS ouNe s Paeaaheses 119
in New-York, Albany or Troy........-...seeeee- est Sirrd etaets eeeeeees 188,141, 146
limitation of .......... 0000 eee rein dys Scaigeasievouslace etaieasiesie eee eis alae aaa 175-177
FOTLEIHSA Wy Bhat bese. a: seat csucacsice.siacessavepaiiensuoesed alee, 8-10) i 0%%. 84:5 Gresa a cera cacacaye nA avant AK 294
increased costs, when allowed to defendant........ seadit gladbenentaepeateas ecaie secs ceiaverare . dol
provisions applicable after September 1, 1880............... inh ane CKeEbe ne Bae 362
Action to foreclose lien upon a chattel: :
when maintainable ............ cee cece eee econ det ariee aes ies swe sireecressea:. 280
procéedings therein... 0... .. ccc cece cee ccc eee eens sae Diane aiges seceeee ee 286-287
when not maintainable ........ 0... cece cece ce tee en eeee Se ee cere 287
in New-York, Albany or Troy... ....... cece cee e eee eeeeeees sesecescccesee 141, 146
Adjournment:
DY JUSTICE icisuoe cadet ae Sev B88 8 oes Cee as wee eee (Awe ReeNRe es «AD
on plaintiff's application ....... 0... cece cee en ee ee ee eeeee oat mie eaweses smcen BO
on defendant’s application.......... 0... cece cee eee e ete eens SeGKeesueweaticnds 50-52
SUD SEG ON CS 5 ore: yar sy <a espn cian ataisaracaneestacapsnasaveda ereaasatelacaigpaieises esses SANS Sie Cave Baw oars noes. 30%
conditions UPON ....... cece eee eee eens setae sisoaee ve 52
when attachment issues against witness or 64
not to exceed 90 days ..........e eee ee ee teen cnet teen ene eee e ee eens ree)
on issuing COMMISSION ....... 0c. c cece cece eee ee ence eee ee ne enna seen eaesenes 59
in summary proceedings for real property ........65 Bid dailies saaetae tae 335
Administrator. (See EXECUTOR AND ADMINISTRATOR.)
Affidavit (See Forms, affidavit) :
ex parte, when evidence ........... sca aua-etera cwreiniois tn arairee a Sets gScdde Re a Rares acs 65
on appeal, when read instead of return....... deatevareioieraais'ee 0 elbrBiag aia (Grav avenetecais 85
on error in fact, CtC...... ccc cece eee e eee eee See ee se. «85
to be filed by justice ........ ccc cece cece meee ce en erase eeee Sua daledeavedeeee: TOL
constable’s, for travel fees..... 0... cee eee eee eee nee teen ee enone Siscaceare, 1k
not impaired by want of or defect in title...............
of party or sureties to undertaking...... oS ys Kicks Hegre
Who May take s<icwiecnasicwecuses seed veg see eaie os Stee aig sitiaiae sist enaiargronereteiove

to prevent notary’s certificate being evidence .............ceeeeeeeee
when presumptive evidence. (See DOCUMENTARY EVIDENCE. )

Affirmation, (See OATHS AND AFFIRMATIONS.)

 

Agent:
in stray proceedingS.........c cece cece cence neces So dia eee eaeeenye ae aiaevanienn ees 118
limitation of action against............. cc ee esse eee eeeee slenptoupse tp aaasraveve avecerofetere ss 187
affidavit by......... cece cece cece ee ee eee Mecaseas Soins are pein Os 281,329, 330
Albany, justices’ court in:
service of copy complaint with summons.................206- Uiaiste leis oleyeteidie-o' ie aie 137
proof thereof 138
action, how commenced.... .....+-. ‘ .
provisional Temedies in ....... cece cece ee eee eee cece eens
proceedings when title to real property in question Aaowielscieeee a scan Ve ee sta se ox 139
AP POAlS: :c5- qe weraseyeaSwveuncrvecs Suisse: raceasdcoievaacis we esasns steas er ee ee oe 140
jurisdiction of ........... ay hicarene araianaeestens Mean Saheee a oee CTE sna eeaess . 140, 146
judoment by confession... ........ sete e ee eee cece eee eens Sioa Vas ese EA 147
docketing judgment, execution WMO aausaccarenrcne Rieke: Sai aint hea 147
summary proceedings for real property.............+- ee eee aisia siete Satta ecania beets 327
Alien:
enemy, limitation of action by and against.............++-.eeee eee sioreonegewe 186
Amendment:
Of pleadings... .. cece cece ee ee eee e weet eee ene tenet eteeeececees diels aes ee Ss 43
OD Appeal esse 6 cisis sions siarsiemncwmaa gta tw see s4isie hee cme emer mobs omnes 82
by the court, disregarding immaterial errors........ ce ceeee cree cece eect eee eees 208
defects in affidavits......0... ccsceeeceeuseeeseeees jpliscousaeaamean@enmesonea: 208:
of bond or undertaking ....... ccc cee eee en cece eee eee cece ee neeeeeeeee neces 209
Animal, (See STRAYS.)
“Annulled” :
defined ....... Ko ah erg ER NTRE ING WRIA Geb ae Re Gave aa cdas seems eeesee Nees (SOT
INDEX.

 

 

 

 

 

Answer (See Forms, answer) : Page.
in action for chattel, may demand return........... ccececccccsccercevcscceces 38
what to contain......., kha ea et a eeoe aks ar ewe Ki RGNRCR ALE SER Rha PERN weee 41, 197
form of, oral to be entered, written to be filed..... ip a Siwtaio ate Sievers seis era vere’ 42
on account or instrument for payment of money............ceee crea Sbaseeh es ie
when variance between proof and answer to be disregarded..... ae Pe Rie ee 8 S558
counterclaim......... aeia(aaiaue acon Waren Wersyeeneal eters since aaeours a Bie
consequence of “failure to plead counterclaim.......-..--- s+e- +>
of title to land; proceedings thereon......... Bio euere sei S(oWiralit te serie
in proceedings relative tO BtTAYS........ eee eee Ado ea ata FVIRGG TARE AN RNGR ERE 108, 116
in summary proceedings for real property...........soeeeeeees Soe es eb eetesenee 834
in mechanic’s lien proceedings ..............eeeceee scence erecees asaya aries Shira 453

(See, also, DEFENCE ; COUNTERCLAIM ; ‘TIME.)

Appeal:
judgment must be reviewed by...... ang tiewsiests cas ae fots ate eaaenenes see aris atevetelecachaneape tesa 80
who may appeal; to what court..... Rie ciara uasee gi ove. 8's Sigse iovoswiniets ieiewede ave -.. 80,140, 171
wher ind how taeen sais uc acd nih dain jecejeielis cavebnio a wseleoaje, awit (ep Bin oinresa alesd lade avoiane weave 80
service of notice on justice ; payment of costs and LOG aie) oo si sineisiaceisioin cui Savas Syatar <sdue 81

on respondent ase fafeiastagah eon TERS SISOS 6 bln ase, Gomaneceueds sume eueaeenan: OS
amendment on ................ srbiedetenelibdolavese “eu uaarsvetesovaueny digwece asain 6 sa. ee wie.a yb ecnrnceatin 82
undertaking to stay execution....... ip ESATEESSSA SIRE RD RGAE SEES KeeaeS 82,211, 257
stay of proceedings... ....... cc. ee eee eeeee cd dieccnlseraweiags ap aes re eee 83
when justice is dead.............. cece cee eee econ siskavevnas abe ets Doe e a newer 83
POEULT OM 3.2.2 5.5 fees ore ay s0siertunhavey ayes e-ayaieca a bene dcayaisag @naioa obra soauranoNe Gave ereelannaie Siena S ales 84
when justice out of MEE ioe acahiwenican tapaees A so 84
how compelled, further return ae 85
WHEN: JUStICO IS COAd . cose cap esvecwusrieer Anesraee semis aca heel enaree 85
for error in fact, proceedings thereon. ............ cs eee eee e cece rece ener aees 85
Testitution ON TEVETSAl 6 coe Sienna edie weiss Oaveueeeemeeweelesieiens ave aiers 85
setting off costs and TeCOVETY.... 0... cece cece cece eee cent eee eee eres eeeeeeeees 86
ISDUTSEMMEM US ON erica segs avcvadd scaucta da. 50 “e:auciar acarenielagere 8 FUE | pounced ier oneewds teaver vere ayer 86
JUS MSH TOM OM. 25 sapecarss avoraiesspspcyer avy oa fnierasd acelin myer enoee cae oe 86
hearing of ; dismissal of... 0.0... ...2. cece cece eens ce eee ences a 87
judgment Osan toes eee ee eee te Faiec peas giao neerscecaaane 87
new trial in justice’s court, when ordered 88
proceedings therein... .......... ceceeeeseeesee eee 88
costs on, to whom awarded ........... dciiaites eae uate ore ea haanam era easuann tie Hadiea ns 88
UTI Gf: oer san ley sen yb ued sndrarna eave Sate ores: eCeveh ales ep stacSuaeans /evay rags eemperds Wie Wasted See 89
for new trial, when allowed.......... 2.0 cc ccc cee cect oct eee e eee e teen eeeeneseee 88
undertaking thereon............0.eeee Bi dceresesets eee 82, 90,211, 257
OMSL COs COMPROMISE oa ois sacqugscioraens scat saree get aseoay'si way travessuseouelosouane Wonernayarers 90
proceedings in appellate COUrt........ cc ccc cece ee cece ee ere eee ees 92
offer to compromise after return.......... 0c cece ee eee eee nena 92
COBUSE ee vysia Sa semnei oes cr ceeiel J cluevazeter avers gushsusbvarsuners ances: sretd h Mem Nee: 9S 93
in proceedings relative to strays, from order determining claim to surplus....... 106
from order on demand of possession
stay of proceedings.................
from final Orders: sccrticcisves sists eaeteseisiocarea es
stay of proceedings. ............ 0 eee ee eee eee
proceedings on affirmance.....................
in New-York district courts, and Albany and Troy justices’ courts...............
to court of sessions, who not to Sit OD 0.6... ce ec cece ee cece cee e eee ence te eeees
by party prosecuting as poor person............ WEBS ERATI TOSS Salis hae awe ee os 199
sureties, exception to, justification... .... 0... ccc cece cere ree e cece ee eee tees nears 257
in summary proceedings, from final order................. EPS OSV ONS Rae Cai ew 342
to: courtsof appeal senses. asics 8469 eee ee bode. ape bs 343
warrant how stayed... 2c... cece cece ee seen ce ecene 343
FOStIUULION gg oissies Vash caN ads eee taeda Sh gee eee’ 344
from action of town auditors ....... cece cee cece eee cece ee eeuees -.. 410, 412
in proceedings to remove encroachments on highways........... 6... e cence ween 433
from assessment of highway damages.......... 0... ccc eee eect ee eens Sioeensen rans ~ 436

Appearance:
action may be commenced by voluntary.............ecseeeee Terese re Cr en ret » 10
in person or by attorney..... 6... eee e eee eee cece cece eee ee eee teeeees . 15
infanta, Dy SUaTAIAN, 6.0... ccveoineasien ster eee a eaaaign ches Rae’ Hee aaa wae AG
when constable not to act as attorney... ... cee cc ee cc eee cen ee eues ehdage ae
authority of attorney, how proved ........ ..ecee eee eeee San0S50 Sees tases 17

580
INDEX.

Appearance (Continued) : Page.
proceedings on defendant’s failure to appear......... asia o.aihior eidaia we dele piga cass 17
when to be made, in general.................4.. ese. Gee a gee e aie arava eaten einer wists 18

after order Of ALTOBE.. «ec sed eles wiccesinuie coe sagen sd saves 22

Application of provisions :

MOd6 OF o's aie ceacess vain casas say eens eine dnsis awh oe a avs Se ede eR stHb eG 127, 362, 364

Approval of bond or undertaking. (See Bonp ; UNDERTAKING.)
Arbitration:

 

 

  

  

limitation of action, when claim has been submitted to........ SaiaGacertresian 189
Arrest :
Order Of; WHEN PTANTED se iias5scccawuuie ne @a saad ac nae cbiet NasddMan lo aniaee Wawel’ 20
in what actions allowed 21
order of, papers required therefor 1.0... 0... cece eee cee eee ee eee ence een e ences 21
CONTENU Ol Ni dca spect tora ase peed rein wd viahs wane Si opeidaaahinies DaLbin oeBiadlaaies Ree 22
constable’s duty and return thereon. ............ cece eee eee eee eee eee 22
when plaintiff must appear... 2... cee cece cece ence ee et eeeeneeeenene ane 22
Custody of Céfendant: OM ie; 6s: spaiesmgiiageiiorw the oe ole’ Ses oo Re gee a ego og alee as 23, 168
MOtiON LO discharge Proms 3. sis 6 sated. sieieisinie pieceuestar va sidie darais & crags bas bala Sieeies au iee 23
effect of discharge from ............ 0... cece cece eens seals sie tGah aware areses 23, 24
what plaintiff must prove to obtain judgment, after........... 0... cece cence eee 24
Privilege: Troms cocec 4 sis esas woe Saas aise ee sinoesrs Daalewa ew aaaosnes 20, 24, 206, 228
undertaking on answer of title, after ....... 0... cee eee e cece ete cence etnies 47
custody of defendant on adjournment ..... 1.6... .. eee eee cece eee eee eteee 51
discharge from on adjournment............... Jie nwAwetene Meroe S 51, 52
of defaulting witness.............. cece cece weet e eee eae Rats ers a Jduowsiewuenate . 54-56
on Sunday; when allowed)» ¢é:< cc <i.440% 4 se5.4-44 4 x00 5 Seonraes MS weseees
for non-payment of money due on contract ..............- Seow eS REs Kew LOMSY
must be statutory authority therefor
bail, qualifications, etc...... 6... ce eee eee eeeeeee
witness; CXOMpt LOM es 6465-5 veces Sw sseresidies ons naeaewacoessnmwee ee eead midway.
how discharged therefrom............. 00. cece eee ees Bea Sea 228, 224
When VOId .2..2.c2%-02.candieais $34 Giha ee rE Ra Sidenete yak oae Rana Re tact 224
action for Mle gals v4.< cts ccs coreaiaie a nw eine Boose siedid anes ama URen ere ree 224
undertaking on. (See UNDERTAKING. )
people, etc., not required to give security ON. ..... 6... ce eee eee e tence 321
application of certain provisions, on and after September 1, 1880................. 362
Assault and battery :
action for, justice has no jurisdiction. ................00005 ayfaksib-avay aus abouawermlaleyeedee a 5
id. ; in district court of New-York ............ 141
id. ; in justices’ courts of Albany and Troy..... mins 146
Assignee of judgment ....... 0c ccc cee eee cnet ence eeees 299
Assignment :
of cause Of action, effect Of..csiiceaaniss sees Gunes ene cede eee be seeeiee wag naresre 297
When allowed cess sis <isttio uid Gas oie igh pda Ses ang ewalsiow Se atet 297
of judgment, effect: Of ais co.cc ne Sg eo sd'sl sin ee Seed Gos SS Sie Re en negheraeow 299
Association :
action, etc., by or against, when and how maintained. :.............0005 serene 303
death of Member ccicvess cscs cece secs cessasesacse 304
judgment how executed ..... oc. cc cece eee eee eee 304
action against member Of........... 0. ccc ee ee ee eee eee 805
1d. $ Limitation: Of s:.0)2<.s,00je:0 wieeisin.g esodea acs Saye S440 PAE RED EES OEE ESR Set eK 306
id. ; effect of misnomer ....... eaiiicbere palates ARG NMR Sale 307
transportation, action against ....... 0... cee e ee eee eee n eee e teen eees he ears ose 316
Attachment ofthe person (See Contempt ; TRIAL JuRoRS; WITNESS):
OP WATNORD ory, 2a secs aeiei sce. ernie Rniaie aie Sins HERES Ca Be ees HEHE aisjariarae AbeieleCeos 52, 54-57, 64
OL, FUTOM ivasecaia's sverarwverwecn oo csrada Onna Tadttan SAGES Seay cleaver (iain Cah etaueneulesen ss 66
Attachment of property :
warrant for, when May iSBUC.........ee eee cece eee cee ee eee seine MOEA ties ayers » 27
form of (See Forms, attachment) sewiegis sea see tave Relea MichsvieGle  eitieiesiss 28
undertaking for............ececeeeeeeees sac isiatersinds e siatwlarelete cia Bayes 29
how executed......... cece eevee enon ves nates ee aanaD sas rcesences 29
service of...... 6 HS45 8555 soe Aes SaMNoems Rds aeRsG ds com oene's 29
undertaking for redelivery..... ae ctee AMIN ewe Temnwmeey segues spared as 30
INDEX.

 
 

 
 

   

 

Attachment of property (Continued) : Page.
claim by third person, bond thereon.............+50 ScAeravewemeteweeees OO
action On; DOUG: <i cv dane aa bhc aside We sama eRe Seles een SaeeD ia ‘ 31
return of warrant........ anac 32
motion to vacate warrant....... 32
effect of vacating Warrant......... cece ccc cece ee ee ee eeeeee ee seeeee eS
proceedings when summons not personally BOLVER vncwsiss svivanserece Seateeene
action for chattel taken under. ......... 0. cece eee ete t teen eee e eee enee ae 34, on
title of purchaser under, not affected by restitution or reversal.........e-eeeeeee 85
preference of warrant Over ExeCUtiON. ...... 66. cece e cece cee teeter teen ee eeaee 264
in action to foreclose lien on chattel....... sha akeweeee thin tee Vesna ek cheeaee 287

by people, public officer, C60... ... cece ccc cece cere cence cree eeeeee - 821
when warrant annulled........ ccc cece eee eee eee e eee eees sh «. 8o7
application of provision, on and after September 1, 1880........... - 862

Attendants:
of courts not to practice as attorneys ........ ee ee eee fog be bead soarg:a) Ges srpesetae Saver eamouest 164

Attorney :
who can and Cannot act A9...... cece ce ee eee eee eee e teem ere ee enees 16,164, 165
proof of authority to act asec. ccs cscs caves ce menenewwenaenenewenaeew ceca 17
in action for chattel, may make affidavit. . yous eu vas Besaca Boe -mnariayesteee Steet e Sues 88, 281
PATtY MAY ACH AB a. nee aew ewe ees HRA eas Hees ORES Sn de ea eee es 164
parties: may appear “DY ioc. iesweartagc es eas Hiwed wpe einem Ree ete new aalaial hails gunk G seals 164
certain officers not to practice.......... cece eee eee 4 le Siaceiors eth sfal ds mies gieis Anoibae aroveud 164
in New-York and Kings counties..............0- eee eee eees 165
compensation Of........... ccc cece eee e eee e teen nee oe aie wees 165
communications to, not to disclose... 1.1... cece eect cece eect ee cent een eeetee 218
not entitled to witness fee. . 0... ccc cece cee nent tte ne ne ne en ne neee seas 808

Attorney-general :
action for penalty by, limitation of.............. cece aieiesigig Gwen asad esas MTD
special compensation t0.......... 0. ccc cece eee ee ec eee eereee Cimieseaeetaneesae 320

Auditors. (See Boarp or, etc.)

Authority:
of attorney, how proved.......... aio va avieya asstenarsi gah Galauareteisiegask’s dis inis G vitae envies Sinaia 17

Bail:

' custody of persons surrendered...... spied le ink a ee eth rae Mexae Sheena eugnes -. 168

- qualifications of............-.4. siete toms eeciss 207
justification and allowance of................. sisteceraiseanttiess 207

(See ARREST, )

Bailee :
action by, to foreclose lien......... Se iia Spa ee Oh ae Se 285-287

Bankruptcy:
ground for summary proceedings, when .............ecseee cece eee eeeeeeee 324

Bastardy :
action on bond, in N. Y. district court............ (REIN GSE LE Owen ae 142

Bawdy house:
summary proceedings to recover possession of........ ajo arse si eldeie saters sans guiness 825
id.; proceedings thereon........... cece eee e ence ene ees oi6o-eerare agian aise aeeee 830

Bill of particulars. ........ 0.0... cece cece eee ee cones asin iaiangata we. 48, 452, 458

Bills of exchange and promissory notes:
of moneyed corporations, action on unlimited................ Caweiebte Sia sve ae 18S
parties to, may be joined in action..................85 setecemsarenenecccas oes LOT
certificate of protest of, when evidence............. eee ee eee a obac axel wiane eevee 281, 232
when indorser, etc., may recover costs paid.............. edema ae teansacewcs BOL
Tost, action Ot s 5551 dees sensei es vane Seas Goee dae eaais sada Pieieacieaiexes ees BOL

by the people.... 2... . cece ee ee eee $356 Sed G asa ieee see ceaeesese ss) (O02

Board of supervisors :
resolution of, how proved..... ..-....0... esta eae eaeale kale sieaetiniesisesests ROt
fines and penalties. .......... cee eee eee eee eens maaan enNe eID, 395
action against, process to be served on clerk. ..........0..0 sss eeeeeeee seen 400,
auditing accounts; raising money, etC......-... ec eee e eee ee 407, 410, 412, 414,
ame LAW... eee eee eee eee ence eee een ee ene ee 5. Ree ee

Board Of €XCiS@........ ce cece eee cere eens siewlees Seseca ev eva

 

582
 

 

Board of town auditors: Page.
of whom composed............eeeee eee eees piesa ts aes ase Ween Cove Usidioareaniaes 406
When tO MOts... cc scucSawca een ROE ce PDE E Tae PEEL OG Be FEU 45 od oie dmededaraoars 406, 407
to file accounts with town clerk............ ccc cece ec cece cece cer eecceursaes 406, 407
of supervisor’s accounts........... Hie PEON Sad PRES MERAY OnE Bae RRO 406, 407
majority may act............... die Sie pee a SGrd esas GANG catdea plas Rm eNeTRl MAIER) caears 407
NO LAWsNG: PAY 0 CMCC od sis ce tie: s:ehe F054 vsbsb ence b.cqere Rualace atere-a Quanseicrdw sedate orvlastee 408
accounts, to be itemized and SWOrn tO......... cece cece cece cece ce ereccrsceceeee 408

evidence as to, disallowance of....... boa Harare Suteh artis ae ia Sane sere Stale iclaneuss 408
fees in criminal caseS....... 0.0... cece eee ee wee eens seere Maleate avin ibact aveeiey weds 408
TTAVE] T66G 366 25. ecscaveietra avers Wie erahwithims Ny Ya NWA Olt Ueidd ewbisins aa AYES 408, 409
abstract of claimants, etc., to be filed with board of supervisors...............06 410
provisions not applicable ‘to Kings, Queens, Suffolk or New-York....... SU4RAST 410
to audit justices’ and constables’ bills............ cee cece cee eee eee
appeal therefrom <<. sscuis siete slvieve gales a eitea's setae
justices’ bills, how made out........... teivews
appeal, Therefrom 3 ves oie iiiss auivis shoe o Bd cor Oa Od Ce SS FE FEE HETERO ads 6
bills of overseers Of POOP... 660 ces cece vee Hed Seem ESET Te SoA EE Kas Rowe ce ne ne
town officer to report to, of moneys receiyed or disbursed..............0. sseue 418
statement thereof to be filed................. 0... cece 413
statement of poor persons relieved, CtC....... 0... cece e ee ee eee ceeeeneas 414
estimate, for temporary relief of POOr......... cece eee eee etre teen ee ees 414
books Of OVErseer... 2... eke cece eee eee eee eee eee me Spkeaears CapeiagsCa caGueraonens oh ed 413-415
bills-for sheep Killed by dogs. secs ecco cea cede os mecee tie degen nile oP Gavele 416
FOPAITING DTIGES vaicieisieis dense siesa dna star eens ere re rr re 417
accounts of railroad commissioners..............+-.-+4-- GSN ote es DE ae
to cancel coupons on town bonds. ......... cece eee cece ee eee cece eect eeenaee
to file same with county clerk. .... 0... eee eee cee cence ene e eee ereeeee
town charges, what are...... ccc cee cece cece ene teen ween ee eeees
when bill to state time of service tds SIG 0 he mtiahaio dos BNISE INE dpalenal a Saher grataee Oakes eheigieee
county CORTES WBE! ATO tcacy ais raso- vik sete 'e Wyck Se wlaib cain sa vas gl afelavce Sia a aca lenght Wigrars hana gtehe
justice’s poor account, to be ‘audited by supervisors
costs of removing encroachments on Nigh Way Bisc-cce'e y's oe Scie sisis e's wera etsy ss
of assessing highway damages............. 0. cece cece cee eee eee eens

 

compensation of board of CXCIBO... 6. 6. cece eee ese e tere nett ee ete e eee ee tees
Boarding-house keeper :

 

actions by, to foreclose lets cs iesiscos cua gimmsaind soi 288 oda s boeR SERENA OOS 285-287, 467
Bond. (See OrFictau Bonp.)
of third person, on claim to attached property....... enieeae’s ees pau gahe sts aseed) 20
action and judgment thereon............ ccc cece ee eee eee eee See desis ae 31, 306
required by statute :
when. suMicient. iscsi seis sens seh 's.clus cle os5 804 seis be loelge eee sae eed seas 209
amendment: Of... ses osciea in venareosees aversfare GNewlleus latiiaie's athe otgseucne ecole etelamwtan sc 209
in legal proceedings :
must be acknowledged or proved............ cee eee eee e tee ene e ences 211
when party need not join in; sufficient surety.......... 00... eee e eee eee ee 211
justification of sureties; form; approval...... 6... cc cece eee ere eee eee 211
when several sureties allowed. ......... 0 cece ec cece eee eee cnet e eee e eee 212
to: people, how (sued ssiscccc5 os 599544554045 DARE oMoRPSae EIT RESTS eS 212
change of parties does not affect....... 0.0... c ccc e cece cece cee ee eens 213
to be filed... .... 0... eee e eee M Cueayashstet ape dean cucticaacs Baus is Glaisiarsluwe drareatente Secen Sastyioes 213
ACHION OM PON Al 2.5% 5 ave tore. sieve Gueropaueuaicreud martes Sass mENGROS On ates eke Sa 300
restrictions upon officer as to taking. ... 61... cece cee eee ee cette ee eee tees 384
in action for penalty for taking rails, etc., on canal bank, etc.............-. 397
Books and papers:
subpoena for...... oaial hie g tiaes
justice’s, where deposited. Splat Mie wig daseewia sie Sig aaneld eae ale aA Rae Sag ee ere
certificate on such deposit aia toversleetetitedy vee"s
demanded after justice’s death.............
delivery thereon, how compelled
production of, how compelled... 0... see cee e ccc e cece ete ee eee eee en een eee
of foreign corporation, when evidence.............. ccc cece eee e ee neteees 233, 234
of canal officer, etc., delivery of...... COVEN NRA TES G SESE AS KoA Mawes werae 898
Bounty :
for wolves and panthers... .. -peeeeecc ccc ccccccceee seeceveeveeeesses iieveskes -486
INDEX.

 
 
 

  

 
 
 

Breach of promise to marry: Page.
action for, not triable in justice’s court..... oe Min eae cece eee se eeaeenecne . 3
in New-York district court...........0..e008- SRR OF es sieve 241
in justices’ courts of Albany and Troy. ....... dip ORAS Lesa EE ee Be ss 146
not transferable......... cece eee eee e eee MAGS ED eR RE REE Lestsas 298
Brooklyn :
justice in sixth district.......... cece eeeeeves Heieleate SoG ate teases e gewwse 119
jurisdiction in... 60 .caa.cseneiwicanonses feUENaNTebawee s ei aiede seeds eG Shale -. 119
salaries and fees of justices......-.... cece cece rene r een eeeee Mae weR ees e seks 119
clerk, appointment, salary, bond........... sind RORESERG Dae HORNS LeRS eS See ae 120
duties of
interpreters ..... 2... ee ee eee ene nites
attendants ....... re ee errr er ee oer er ere Care re eet ee rer ca
serving complaint ...........es sees seer eee ee eee eee eee eras. wep leraas as .- 123
jury trial... ... eee eee eee Ainpibis sale a SAGE Seat GAN Fee OeROS DUNNE tasagaES 124
default, setting aside, Cte... ... 6. cece cece ence eee teen eee wiekae missle we eiesard 124
costs, AOI OHalie sca; os oganes setercueta a shaedsaae sae sates’ shes apne gumelayetsverg evariens 125
in actions by working WoMeN.......... ese eee cece serene eect eeees awaewa 125
On adjournment .......... ese ee ee eee ee ee eee sa aisisla ea 3 Lage SR eA ORR eS 126
application of other provisions t0........ 2... ee cece ee eee teen ence eect eneee 126
holding court open.............6 iais wean 126
summary proceedings in.......... cece cece cee eee e eee nent een eees 827
Buffalo superior court:
new trial in, on answer of title ......... LAs dae wae ieee ue Sismeoae ee Neeriads 47, 171
appeals tO... .. eres eeee serene coat ee eeee hd wsapech nal. Xan Gud Sravenh Giateln secermserntene 80, 87
remission Of fines by ....... ccs see ccecer ences eecerceeene earns arch a scheeseteeateitanys 171
Buying claims:
justices and constables prohibited ............. sees econ Bere ees ceeceee 128, 129
defence to action ...........0. eee wncdstemioiess aie dia sida a, wieteity yard Nisin ele acoreiat weiwae 129
Canal:
taking rails, etc., from bank of............ dae PAE ieee see Semantics we sis ba eters 397
books of agents and officers On .......-0-00+ Lola he oie eke ie iorsie lstguste taieisverors inlets 398
Cause of action. (See Acrion, iat
joinder Of .. 0... cece eee eee cece tee eee e eee en en eeee sev auvae pieeiae ures seve Al
civil not merged in criminal action........ .. soe wer eis He cse sees ose iiveves 296
transfer of, effect ..........0.. eee ee eee 297
what may be transferred ...........0.6+ 297
effect of assignment of judgment Aes aden ere 299
Certificate:
marriage, 1S CVIGENCE. 61. eee eee ete eet tence anes a eee dseetseaits sevees 233
for evidence, form of, O66 10... ccc cece cece ee cee e ence meee es ane sane senene sees B44
when seal n€CeESSAry ... 2. eee eee ee eee eee eee ee ee over eeune es yes 244
of officer, etc. (See DOCUMENTARY EVIDENCE.)
Challenge of juror. (See Jury.)
Chattel:
action fora. (See ACTION FOR A CHATTEL.)
action to foreclose a lien on. (See ACTION TO FORECLOSE, etc.)
City:
venire in action between town and.......... ccc cece cece cence eee eees $esness we. 61
service of summons in action againSt......... cece cece eee ee ee eens seeeeses 194
charter, etc., how proved...... cece cece eee e eee en ee eeeee eaices AiessaVee tan ued
Civil action. (See Action.)
Claim of title:
by third person, in attachment proceedings..............+.. Seuiedadeecev ns sere 80
in TeplevVin, sii .cvesssevssseecsecanes Seeseee sce Pese nese, Sac 38
GO: lan dies Soa AN Av tatecundioce Ses VANTAGE NEE ERE 5 LEST REST FIeeveR CE saa eee reaowey 46-48
Clergyman :
not to disclose COnfEsSiONS... 6.6... cece eee eee een cee e ee ee enone bes aw caacoes 218
certificate Of MATTIAZO... 1... cece cece eee eee ee teens wai ieee an ORY stare ncaa 233

584
INDEX.

Clerk (See County CLErk ; Town CLERK) : Page.
of justice not to act as attorney............ see eee ee sdsbaieranatetnsioye are enngty tales 16
notice of appeal served on county ....... 0.02 cece cece cece eee e eset teen ennes
undertaking on appeal, served on county............ cc eee cece cence sce eeeeeesees
of justice in Brooklyn, salary, etc .......... cc. cece cee ec ccc cence eceuececenees

UGGS: Of: 3a sieisie ays carga aiigeeana aaa earn a aamearmre wane el
of city or town, deposit of justice’s books with................c ec eee eee eee
of N. Y. district court, powers of .................. :
bond or undertaking filed with ......... ec eece cece
papers in special proceedings to be filed with county...............
MAY take! Oths 43.0460 diese esterase g's egkie « ae.4 «sited 4 Ew ORE Sold Wale vidas, gra Aee arerelacers
records of, when copies evidence ....... 20... cece cece ee cee ee cence ean aen
mustmake searches .sj¢ is aens s ose vob Ses 288 Fee Fee 84 ae adi geaidady sen eaaenenee
entry by,on judgment against joint debtors ......... ccc cece ees eee eee
service of, without fee, When ....... 0... ccc ccc ccc ce cee cece ees ceceeveceteeeee
definition of............. 22. aera rash Grae na per elalay star vase Guatouasoa se iuaunaasie se aaauneaaaiel Ns

Code of Civil Procedure :

HELO SOL osc sae. ai oe: ecsie: saosin Groeten CROWD N Haale Ge PRES eee WE ge ew ee eee te ewes
CONSETICHON OF oi. cciewis. 90005010 ase entene er oneenes’s

punishment of crimes under. .................005
application of its provisions. ........... cc cece cece eect ce eect eeneee
effect on proceedings taken under former statutes
id.; upon officers and Offices..... 0... cee cece cee cece e eee eee n cence eee eeeene
when deemed to have passed... ....... cece cece cece eee e eet cereteeeeereeecees
when to take effect......... Ica e GE Ee eRE Een bese eseneeness 365

Commencement of action. (See SUMMONS.) ....... eames 10, 188, 183, 184, 368

Commission:

to examine witness, upon interrogatories..............0. cee ee secre e en eee tee 58
Orally soy scew aged sa S20 sak 4 syste Aibckae tale arapaudguavdon 58, 227

when and how granted ........ ...... pe Dawroh sibs 5 shee Siskel esis tap esartiara pe misess ens 58

AGJOUPNMENE 2.0... sea e eee eect ee ete tent eee eee reece een ee et ae eter settee

execntion and return of... .0,10ss2as0«sreeenvscecnncavevsencenaes ananmns

receipt of, by justice..............

when deposition evidence

power of commissioner... ...... eee cece eee e eee cree ence een e cree ene eeee 60

Jor use without the State.......... aetrsnp cava leaves Grelbl'e S'S Sule aS wi Widtierd hunters aejala-a sincere | 229-230

Commissioner of deeds:

JUSHCE: Sos cece ie sce cipistcinee sigiauetaareo ea egies & iidstelice GUGG Sas Lens Ue We eee eed a aume 421
Commissioner of highways (See Hiauways) :

vacancy...... emai aie ares Meas 9 Sihateaeeeins sewn Gd egies Bax's ate dle ca tehdre ates 403

  
 

 

 

Commitment. (See Contempt ; JUROR; WITNESS.)

Common carrier:

 

misjoinder in action, etc., against....... Sireteac ehh awiid Ewa Reo ona Sie eae sine 316
Common law:
of other states, etc., how proved..... Whuwiaesadwrra: Coos akee oreo agealseawese we 239
rules of, as to documentary evidence .. 245
rule of strict construction............. cece eee cee ee eee wieiniala aie reusing wosks Renee 309
Common pleas, New-York, court of :
appeals from district courts tO... 2.0... eee eee eee e ee cece e ene eee eeeee 140
removal of action to, from district courts............ cece ee eee eee Ae isis SaaS 148
Compensation. (See BROOKLYN; FEEs.)
Complaint (See Forms, complaint) :
@ PleAG NG so e/seccccse nade dis sarnd oe taser est BENE isis Gc Riaia tela aha tase Wea iarat ar ecai erate EO 40
what to state............. BAe Cheeta, Tare) sor6 Besse inde: Ola Ince dieiiayeis Sere EA ere EAS SES SNS 41
joinder of actions in........ cc cece cece scene tere eee eee e nee cen sete eeaneeenses 41
served with summons......... Deb nie Saenz, a uanesa cd ecdicguate are dreshu': avers onauaiy wine seat cians 128, 13t
proof of service Of..........ccce eee e ee ee eee oe sve ces Syov"sd/ayesdr ay axaia Syaye Miarave Recher tae est 188
in action against Corporation ....... 0. eee ec eee eer eee eee e eter eneee 288, 289
for non-payment of highway tax... .... ccc cece cece c eee e ee tent een etees 430
for selling liquor............... .. Scarenareintere sekivads Oe vei dasdaiane arenes Savane) ates 499

[74] 585
INDEX.

Composition by joint debtor. (See Joint Dusror.)
Compromise. (See OFFER.)

Confession :

   

  

   

    

of judgment, when may be taken.............. cee eens bodeeed
MOdO Of vec cceei ee een ewe sa genes Seater wibace
WOT VOL eas ssa cesaca olaasarasae eeaie eusin hi bres ow adaceisiore
when to be entered.............. Ghee ies Sei vetes wee swe ae coeewats
in Albany and Troy 0... s00ccwnegouaaseoun se eeeee
Constable (See Return) :
service Of SUMMONS DY...... cece ees eee eee ee eee cereeeteneenees 'statetete’d 11, 15
when not to act as attorney........-. eee e eee ceuweeesits bal Sed ne Sa ciewres Noles 16, 164
duty of, in executing order of arrest........ 0. cece eee e eee ee ee eeees Vea satel 22, 28
in executing attachment........... cc cece cece een ect e ee ee ee neeeees 30
ON TEqUisition ‘to LepleVYs visensscw esis neces sols eased ping Vane aaee sees s 35
wrong delivery of chattel by, penalty.......... eee eee eee eee e eee eeeeeee cee 38
duty of, on claim of chattel by third person. .......... 0. cece eee ec eee eeee -. 88, 279
action against, on such claim; indemnity, etc.............. eee ee eee eee 38, 279-281
power to take chattel ..... 0.0.6 cece cece eee eee ee eee nee e ene et en en ees 39, 284
service Of subpoena. by’: vcs etic ere ei ee eek es Boos hereveredew sas tedaas os 54
execution of warrant at attachment against defaulting witness or juror.. 55,57, 66
Venire, duty On 2ecee;cncgee see sexe seven ges sees ecoys seeeaeene 61, 62
custody'of Jury DY ssiac vaedees cence tee bees oes eT ee ie 65
execution, levy and sale by........... ccc cece e eee ee eee eee 39, 75, 259, 265, 266, 284
cannot purchase on sale on .... 75, 259
VECUID Of; 2.26% 64 Geena ce Fakes ia 76
against the person, duty OU ......... eee ec cc ee eee terete e teen eee 76
failure to return, action therefor ............ 0. cee cence reece ee eee 78
not to actiafter return! day’... co aa0..csac 86404 004 5405 a Re 6000 SH oe obs 78
failure to pay over money collected on......... Lee. e eee eee 78, 405
after expiration of term ...........00 5 ese cece cree eee ee ee ceeenees 78
attendance of, in Brooklytis.sic.c:suesedosctes Sao Hae BAe EE SE TSAO Tee eee oe 123
rewards to, forbidden ........ Bieta icv te REL is RNS BrB i Re Sada er Ror Rios SHEAR Gaim Beste sacmecsetaye 128
not to buy clainis to‘stess ..ssc ssc. cae cd ce cate esd ethes sabes ta esae eee s -. 128
penalty therefor................ ashi splaceraie AVR Sie hie eis Secale aes 129
duty of, in, transfer Of action occ cscs cee eadeacis B40 8 FS eS os 6G GET oes Oe ERE CTS 134
PTIVALS PETSON BS 4 serecwmowacuer se nteitws dias TARE OTS SG bE TS Eee aw TSS 135
cannot act by deputyies:..éces'ss005 shes ae a bates cee tea. MER TAS Nea e eee ER RSE 185
upon resistance of, sheriff may act...............e.ee eee Soa0 Ceeicewe ae eee ets 135
compensation. (See FEES.)
limitation of action against. ....... 0... cece ec ere eee et eee eee ee eee eee eeeeeee 177
TOMOVal Ol. cae). alee DGS wera tage Oeee Geter eat St eee ee eevee seekers 405
game...... sidhiere Gisisdasrs(dvere cxauarismuvecuraedes cele taiuinn nen deroe “aan Raina inmag eas Nee EIS 489
Construction :
of Code....... Betas tate we geek ea ee eared Pea este aes 856, 359
Contempt:
criminal, when justice may punish for........... sedated aebwieve wemie aided ee 8
punishment for: esas c ecw cs ges ayes ceeces ctu ct eevesces ged eee ws aes y 8
offender'to be heard ia. seca cee scree evans sevens eens sansé Sesanacur ses 9
record of conviction.... .. FSG wie A Uae a aisles SOEs eae Heke OMA Meee 9
requisites of commitment. ........... ccc cc eee e cece eee scence eer eee 9
fine: to Whom Paid eons os nret ans euondase snes meas Tete ETRE EN eee 9
arrest of witness, when a@.......... Whe igaKA onan aenaas sisted wile ¥ 504% 224
Contract :
action on, jurisdiction ........ 6... cee cece ee cece eee eect teen e eee ee tenn ees 3-6
limitation Of, 00 s.45 00940904 50-o4i00 6 does soa aes ets SRR wiaiwens 11S
counterclaind. 10.) ssacsaia i sos stew aia aos Hae Awe eS weeee 44, 201
Conveyance :
when evidence..........2. 6c eee eee eeereees tisiies Sea teeOe - 236

 
 

acknowledgment may be disproved......... Hanaheaisereaysves .. 286
of real estate in another state, how proved.. 240
Conviction. (See “ MINUTE oF,” etc.)
Copies:
of papers, justice to furnigh.......cesscecceeceneeceevceesccsccerseccecsssces 133

586 :
INDEX.

 

 
 
 
 
  

  

Coroner : Page,
limitation of action against..... Stes eas ence een eens sabia ecddee paaeaiidiare- ee eco. 177-178
JUBUICOL SS: seortiaiaioss. gids gra sasecun eae Haney axdohauesoy caer s duaiblaiedaietefeavicusiayoinaae cee ectangae aoe

Corporation (See Forms, corporation) :
action by or against, jurisdiction Of. ............. eee ee Siemibintees PeA iia sererei desea teed
Service Of SUMMONS UPON. ........ cece cece cece eee eee eee eee eeuseeeeees 12, 194

railroad corporations sa eriaGae ee ews, Gace waren wie Bena 12, 13
CXPLeSS COMPANIES ... 6... cece cece eee eee ee eens woe 13
moneyed, action on bills of... 0.0.0... eck Lecce eee ee eee teen eter e nen eens
foreign, to designate person on whom to serve summons ;
admissions of member of, when evidence............ fees cece cece cece eeeeen
books and papers of, how produced..............00ee0eee
of foreign, presumptive evidence.......... 0... eee e eee eee
when copy may be read in evidence... Pepe R ER Aten tea anes d ow Wiss OS ee
séal.of, how aflitied i. cg cigs sere gst eiag ekg oss Madge Sea Rablore Maire srapam aioe’:
action against, Complain’ ini, svi. ctshsalsaeasial sewiielaurak aw vauret einem dears gas
proof of corporate existence ... 22... eee eee eee eee eee
MIGNOM OE ¢:c-s0's sacs awn ewslsleawadins Paes eeeverwee wwe s tal.ose a
action; by forelens ..ci. oss sre sons adeaweunneereneee Sables seek bas de Ge vele'
against forei PDs. a4 pesca vveka be Kawa es eee REES ES oe eS HEE REE S ea aE ee OHS
against stockholder, misnomer. (See MISNOMER ; STOCKHOLDER.)........ 291
domestic municipal, not required to give security in certain cases .......0..000. 321
definition of “domestic”, and “ foreign ”.......-...0.0 0008 MOA RST METRO HORE Ta 358

Costs (See Fuus) :
on discontinuance after answer of title ......... cece eee ee cece ence eee e eens 47
whatto be paid, on appeals. ccia vicaiene qa tenrcanie dani garec mir aleieeAneiaiar-diey de
set-off against recovery on appeal..........cseee eee e cece ence en ce eeeeeee een tes
disburseménta on: appeals i isis ssciegisicwimreigrs cunieiaie Se sigle/e sid eS uGi aro edle OSes Ea elegy gees
on appeal, when awarded................ Scie Quis pastes nels Sivabaw iaiwes unas sess

AMOUNL..... eee sere e eee ee ceeees
after offer to compromise......
to prevailing party, WED. s-scs.sisce sinveiesacs-aie we erpisie ie dines digiacs $e Fe ne RE a Des
to neither party, WhEDs 2.6.64 ie edisasidoaesesaueneeeb eebeed tater dee ad se eee eee
Hmite dc cence cnuinna decor esuG.suss sess eens Pe rr err eee 95, 490
ON GOMUITER oo see seve ees e eta semsees pantech GulelatanGie shies Oba bee lese eaelee es 96
items must be stated in docket ........... ele Gla cw table Wiles Maps oe gees Ves vaca 96
double and treble... .............008 Ciawed HAG anes Hees GiNes Aware 96, 851, 495
to one or more defendants ............ eee cece ee eens dhe Ne ava SNS CRE we wes 97
recovered back, when .......... 97
in stray proceedings.............. 107
in Brooklyn ...c.0ccscees oe vei vees 125
in action by working woman..............- 125
on judgment ........ cece eee cece eee eee eens SiR ane eee seg eens 4 134
judge not to be interested in 11... .e ic eee eee cece eee neee seoeees 161, 162
when party prosecutes, et.,aS POOF PETSON....... 6. eee ee eee cence e eens 198, 199
in summary proceedings... 1.2.00... scene eves ecsenenes soccenceesersesesens 336
against the State... 6. co.cc cece cece cece eee cee eens Bie dietansoacsyanai slave 820, 348, 349
TOLALOR: sacs saicis tase anen BGA eee o ecsiaynasecOON Hide Oa Wd od adoeie Cabee be eiess 348, 349
in action in the name of the people ............ SsiSinjonsimanedaw diapeaisebe prelate yore 348, 349
against school officer ............seeeseeeeee Sat bisilecdeh tigsdin ce eieseieteracere, "esha a Sigs Ba ass 349
county, city, town, or village ..............0.06 349, 350, 400, 401, 482, 490
against CXECULOT....... eee ee ee eee Suenliaies, denaliamesiowieieternaa toes case SS rere 350
transferee of claim .......... ccc eee eee iia Raseeayouergisterecenerts, Sale oreo 350
in highway proceedings ............. sce cece ee ew eee cee eeeenee 432, 433, 438, 441
in mechanics’ lien proceedings............. 2c: eee e eee eens vga ings va dots "o 451, 463
under pame: AW: canvases sos eens eee dae KRW EG N SO UE ORE Es oo ees 487, 490, 492
in proceedings against hawkers and peddlers. es Ree sineanares a Seaucemeuek be 494

Counterclaim :

HOW Stated 56 sccsseescassSeseeen sede esas seas Bisa ninGi Ne eaiieaee, SRE Meee e 41
when allowed ............5.6 soseees ioioneens WASaKRe ys aes MOS Sea 88, 44, 201, 202
against executor, CtC ......... cece eee ee cee Siniiee Rogie eel 4 kaeER eR RARaD CoN 44, 203
neglect to plead, consequences.... ... ir faten brah ayateiecSie itetaceies Siskignetieeeen’s eee ve Ss 44
judgment on................04. bia Seep aca ayalere Kuh ere tuele aeRO OR MIME TR TSS ETE S

limitation rules apply to............... oie wsasvaia acavovavereca omega He wsiows menace see 183
by assignee thereof....... 0... cece eee eee eee eee aay nba apatvans Giese ie aaienerenets SHERELS 297
in mechanics’ lien proceedings........... gees sa ane ite ahaa abtsatesceen) Mivveie seine wreleass . 453
     

 

 

 

County: Page.
action by or AGAINSE Leet eect erence rece ener ene eaees bps 307-309
in name of board of supervisors sna saan aed meat aches aiouatorsige ab Ks 7
how tried............ 0.066 Spinb6 sie isr8! GA Niece Wis fase ale BO EOS He
process on whom served ......... cc cece ec e eee e eee e neers
jurors and witnesses................ :
before justices of the peace........... cic cece eee eee
costs. (See Costs.)
COuntY CiVIdEd . csv vedicnseineernGias Keer waa ee Rews 401
County clerk (See FEES) :
duty in filing transcript....... See ae on OGG Sa Dees eee Vs Gee eles 69, 72
when to issue CxeCUtiON.........00cc cece ee cree eeee eens seeeneeenees 69-72, 79, 258
id., on N. Y. district court Judgment. ......... cece eee cee cece eee eee ee eee eens 145
id. on judgment of justice in Albany or Troy’.......... cece cece eee ee cee cece rv
athe Ber DeLana oes uy sees vena Paine ooh eis os eae ceee iceeclonero nee 220
docket of justice, evidence when certified by. . sitdte signe 237
fines, Auty as: tOv ec oaicuviad evened maine eae ae wh wea mee stew loiennce eeetertttions 255
(See ‘Mucuantcs’ AND LABORERS’ LIENS.)
County court:
new action in, after plea of title... 0... .. cece ccc eee ee eee nee en eee cannes 47
APPOAl tO) oss sic oeci0.5s'5.3 aw hos 46 Ra SaaS YE TSS Ales RETA RE RAR a Ry Bre Ae 80
remission. of fines, Cte: . i sasccecacceesee eee 2 achew eat eee seesadadts eee 172
power as to fisheries; ete <.ijs0cc acs eur sn cob dow aweawiansesisca td asian a emien ed dose 518
County judge:
discharge of witness arrested... ....... ccc cece cence nen e cece cnet eee nee eenrees 224
in summary proceedings, application t0............0. cece e eee SMe aces BRS erie 327
BELAY 1), DY aie wise svensk ass Kee a aS 4 ieikis Rae CREO Binley oe 343
County treasurer:
powers of, over money paid into COUrt...... 6c. e ee eee ee cee ene eeeee 209
fines under game law .............. ee ded Gtaicane rs ua easiness cevceesees 488
Courts:
not of record, enumerated.............. Manns Seen e ad Aan Oe eles gb oeia on dorand aun 159
JUrisdiction Of, PTESEL VEU. oc: 6:50, ecsigce soi ocd Sees aie iss ie er¥i ste So: sresd.orme elbnsia doves gtse a: ovale caer
sittings of, to be public..... ......
not to sit on Sunday, except, etc
judge not to practice in his own..............- Ot: Sha gle Setautraie Shanda sedis CESS SS eisees
limitation of action on judgment Of........... cc ces cece eee e cece ene eeee oe 175
commencement of action in........... ee eee eee eee ee Suasheuisdecin eens Pee ae 184
of record, limitation of action on judgment of.............. cece eee eee eee 173
Creditor:
JUALMENt, COANE ox. se:cicccssccsrsrenereemeraiind so ndee aarewiedind mele an qe anlees woinarelaeaeels 357
Crime (See MisDEMEANOR: PRISONER):
does not exclude Witness. ....... 6.66 cee cee eee cece eee ee eee ene eee e eee eeeeeee 217
punishment for, under Code...............- ae ac miaske ovarian ainnaiaintaneauetntiae (av ae eearays 359
Criminal action:
not to affect civil....... Bing Sa Mie a aie-oty Wreerne se os dialee ears sod DES Saw ee ceeds 296
MOAN ED. ccnise-s aueiccaanvencvanatia secs Hae srateieanaa ante 2 arang tease saves pienmioraid ouch eGes sities Godeneonane a aig 355
Criminal conversation :
justice has no jurisdiction of action for..............e..+00. seen Raise aan erate 5
id., in New-York, Albany and Troy.. 141, 146
included in term. “personal AD] UY’. oe cide ceca case eaeas cd ee eae tea eecee ee os 357
Custody (See ConsTaBLe):
of prisoner .......0. eee eee ee ee eee see e cnet etme eneneseeec cee sesee Gees 168
Damages:
in action for chattel .............. asaiia tls taieraunane aienvseh sianardtiarsavese-t-iea g Oaae ee 39, 281, 282
defaulting witness liable FOES oahoge dublin vag oueby sateen nomad ses iiasten aoe: 57
Dy Strays... . eee eee ee eee ee eee efSinaa eimielannlen ance oh ana irenaheankets Sucemeeanegees 114
limitation of action for............ chtini Qadode NRW omeR hers iua aOR Nae wae 175-178
action for, not merged, etc ........... fi ataxic Sitar Seog aeea wey og nig. deecyrah auapw wie biandige 296
for suing, etc., in another’s NAMOC..... 6. cece eee eee ee ne ee ee weeee bie aesisiaaigey UO

588
 

Damages (Continued): Page.
in action on penal bond..........cceeeeeeeceaeee seleueays a Sale a eree a Mien warenies 300
for penalty (See PENALTY) semineiens A sdh eats due Saas Se Seee 296, 319
on forfeited recognizance... 6.6... eee eee erect eee e eee ee enees
treble sce cgac saw y sees coe oes's stad a8 <ahoeAns RRC Aen REA orsies
Death:
undertaking on appeal, where filed after justice’s... 2.00... . ec ce cece cece cece ees
return on appeal, after justice’s............... eee ee eee as eae
proof of judgment after justice’s... ..... ccc ccc eee eee eee
of officer in special proceeding.......... 0... cece eee cece eee cette eee eeeeeneee
effect on limitation of action. ........ cc. cece eee cece ee eect ce ee eeene
alter Verdict, TEPOTt;, tC \.c-cexcnsn ene as Gonercmne aed Reasbar Wah eee gL eS Beees
eLfOTS: VeETdiCt cris. Lackso:s HeiMiseie gaged wipawawapuenrs dy Coane ewes ye cales Soe
evidence of decedent on former trial... 0.0.0.0... ccc ee cece cece cece erect cece
Prestiniptionsof sc. samen can ates cau nehe Ent hed eeu eaees SoEEMe
of justice, proof in case: Ofo,, sis6ieis ses doa 454 i's a isibrs:e Sel erein as ate Hewes Use Senate ais
Deceit:
arrest in action for........... ee eer ee ore ree ear 21
Decision :
of court, when protection to a party .......... cece eee ce cece e eee een eee 318
defined.......... eae hee sare aistraseee Sis Bieta SG eiesUe Sieueae eee Rt AN aa oar eee 357
Deed. (See CONVEYANCE.)
Default :
plaintiff must prove CaS€ ON. 2... cece eee cece e eect e eee ee eee ee ee ee enaes 24
GUS MONG OM) oes eset wes oeegieearemelees Salkauew Heard ener. 17, 60, 123, 450, 462, 466
Opened in Brooklyn. 5 ies careless awaesawa vena we 5 vow Gee ee eee Ses wea Sele 124

Defect. (See AMENDMENT.)
Defence. (See ANSWER.)

 

in action by justice or constable........ 0... cece eee eee eee eee eee e eee eees 129

limitation rules apply to.....

‘by jointide btors.22 3 ous see os Meno ieatsectocnucinn wean warleecr mien enka oa wide aa watelets

improper joinder, when no (See MISJOINDER) .......... cece eee eee ec eee eens 316
Defendant :

designated by fictitious name (See PARTIES) ......... 0... cece eee eect eens 14

neglecting to set up counterclaim, effect of......... 0... cc cece eee ene eee 44

severally liable, action against... 1.0.6.0... cc ccc eee cece e reece ee ee ees tee 197

in action against joint debtors (See JOINT DEBTORS) ............ ee ee eeee ee eres 814

jointly indebted, may compound separately......... 0... cece ec eee een eee 315

defined............ inicio ACEC NORA ENS 2's SUE LET ER Rhye ae SST a aeulderd 856
Definition :

of “trusted of expresa trust’ ec soc 6 cosas oa tse Hes bie d See Ewe ROse 196

of words and terms used in the Code ......... 0. ccc cece cece cece ee cee eee eeee 355-359
Demand (See ACTION FOR A CHATTEL):

of possession of stTay...... 2. eee eee cee ainda 2 then ens Day Wane 108-110, 116
Demurrer :

a pleading « 2<% sxx aoennewdiawad nase eGtNER Nae Sy Fee as Haga aNd MeN Does deo 40

to complaint OT ANS Wel as cnsiwoes 24 Heiw Shea Thee ees ORES DEA Peed OsaNTES 41

general, rules a8 0s sciecwds wey renee ia vin Siaeses  Ue6 bak Sa aaeacmm tame 42

Deposition (See Commission) :
for use within the State..... Bo sdpeda rehanh Sea eeeraiccenalis eas wy eww eth ate kT steigigig ees 58-60, 227-229

 

without the State 229-230
Deputed person:
to serve mandate...........0.0% SRA WSS REM. is aati Heated, Hine NewS, CRIES 135, 890, 391
Designation :
of person tO SETVE SUMMONS UPON ......... eee eee eee teen eens 12, 198, 194
TPEVOCAMON ION creisicioicts aaviedantantee NEDES ORI OS a d-De shee ermine canal week ost As 18

Detainer :
forcible. (See ENTRY.)
 
  

Director: Page,
service Of SUMMONS ON..........e eee eeeeee ee esinddsertiensrsie uae ara ieia vevees 12, 194
limitation of action against.......... aie iaio Win eg tale aie ine ate aire ee weeds vac aiagesiaohtie’s's 182

Disability (See Dzats) :
of justice, proceedings thereon..........

proceedings on appeal.. .....

when a party, etc............

on appeals to sessions.........
of officer in special proceeding ........ 0c cece ee cence tenet tee e ene eeteeeeene
effect of, on limitation of actions ............... Se 2S Heeswewes eeenees eee 181, 182
of aliens............... Batsh) QneA Hanns, ne RE ROEM Rae AMER ERtaSaieS Ae 186
when available in computing limitation.................. seenses sateen see wees 188

(See LimiTaTION.)

Disbursements. (See Costs.)

 
 

   

 

 

Discharge:
from arrest, motion for..... ‘ KieP GE CR ovate RSE ad Oe phous RY ieieeenikenns Be
WMC CEEOL: Serer d esis sycpaveunee wo oiaiorecragsrdani eueinciie ces ea Ghat. ROARS AOE RWS 23
of privileged person 24
on adjournment ........ 6... e cece ee eee 52
of judgment debtor. (See JUD@MENT DEBTOR) WW
from imprisonment ............... Siete eR eee ead ie eter eee te a. 7%, 172
Ol wittiess TOM. AYTESt.....ccca0reeerarseenes Se eeneeees $ikiineennhe tebe 228, 224
of attachment. (See ATTACHMENT.)
Discontinuance :
judgment of, when to be rendered .........-.ceeseeeteeeeeeetreeees 46, 47, 49, 491
Disqualification (See QUALIFICATION: DISABILITY):
justice material witness............. 0. cece ee Se eines ideeuaisbnase, Ghne Heleaeccies 133
substitution by reason Of ....... cece ee eee eee srecabauisnesacacat. (exnlatacuanerelansnreie-ceers 161-163
*« Distinct parcel” :
defined 25 69 snes ie. Scale as see ne eee caus ait eee eeieseieniileys 358
District-attorney :

, action for penalty by.... 2... 0... eee eee ane 5 ae 179
limitation thereof Z 179
PCCOUME OF sexjaisis Siaie's wrslre ode gis eee e 58S 319
cannot act as justice of the peace ............... . 374
duty under game laws. csi siies Gate sivesagewae sees snes Seones Sevens cesses 487

District courts of New-York. (See NEw-Yor« District Courts.)
Division fences (See FENCES) ......... Ra shle does NGINE iced Tastes NOIDA a 425
Docket-book :
fine imposed, must be entered in
costs must be itemized in................
entries therein .......... cc cece ee eee ee
Index theretOs.c.5 cece e is cow te Slee wae b AERA MERE Mane Sao S bE Gera Bate
eposlt Of; ccc esca ee sak sete OE Gee oie eases atthe duis) waite aA dened
when presumptive evidence ........ 6... ccc ee cece eee e et ee et ee eters te
Documentary evidence (See EVIDENCE) :
deposition on commission........... ...- sah: (Wlalelganla Kad aiphielul NEN eo OUR Naini oe 59
FEbUrN Of EXECUTION 5c anindmadt o airciwudsund wdinaedencwmea cams ceeees ons et AES 174
on former trial, of decedent... 2... .. cc eee e ccc eee eee eee ee een ee eee eens 216
production of documents, how compelled ........... cece cece eee e eens 54, 64, 224-226
official certificates, when evidence. ........c cece eee ee cee ete ene 39, 54, 230, 285
and affidavits on file, when evidence. .............00 cece eens » 231
notary’s certificate of protest is presumptive evidence, etc......... 6. eee eee eens 231
protest and memorandum, when evidence............... 6.2 eens Seen 232
proof of presentment or protest in foreign state or country, how made.......... 232
affidavit of printer, etc., presumptive evidence, etc.......... sihetriblistedtaie ieee 232, 391
of service is presumptive evidence, when. ..........0. ee cece cece e eee 233
marriage certificate or record is presumptive evidence. ... ......2.-- eee ee eee 233
books of foreign corporation are presumptive evidence................ Siaie gisfetacee 233
copy thereof, when evidence, etc......... 6. cece eee eee eae 234

590
INDEX.

Documentary Evidence (Continued) : Page.
statutes and legislative proceedings, how proved.........sessseeseeeeee sacenss 284
copies of records and papers in certain offices are presumptive evidence... 235, 236
conveyance acknowledged, etc,, is evidence. ........ cece cece ee ee eens acess 286

record or transcript thereof................. eee eee 236

acknowledgment not conclusive ; may be rebutted, etc.......... 0... cece ee eens 236
what instruments may be made evidence by acknowledgment................-+- 236
docket-book of justice, or transcript thereof, when evidence.... 132, 185, 286, 237, 241
proceedings before justice, other proof of... ...... 0... eee cece cee eee e eee eeees 237
ordinance, etc., of cities and villages, how proved............-..ee eee eee oe 237, 393
documents in United States courts and offices............... ee ee 238
statute, etc., of other state or foreign country, how proved................008 ».. 239
common law of other state or foreign country, how proved..............--20000- 239
records, etc., of United States courts, how proved.......... cc cee cece ce ee ee eee 239
of department of government of United States, how proved......... 239

of observations of signal service............ i tire wer agendememsiady 240

when record of bill of sale, etc., of vessel, is evidence. ......... 0... cee eet ee eee 240
conveyance of land without the ‘State, when evidence, ..v.1uossedes suis nea aware 240
exemplification of record thereof ......... 240

docket, judgment, etc., of justice of the peace of adjoining state, how proved,etc. 241, 242
record and judicial proceedings of foreign country, how proved................. 242
effect thereof ............... 243

documents, etc., of foreign country, how authenticated. .......... 0. cece eee ee ee 248
certificates to copies, general form Of, etC... 2... cece eee eee cere cette eee nee 244
must be under seal, except, etc..............48 sede Sesyiataransie 244

certain officers must search and certify upon request.......... cee cece cee eee ees 245
foregoing provisions not to prevent proof according to common law rules, etc.... 245
return of sheriff or constable 1... .... cc cece eee eee eee ee cee er eee 89, 54, 231, 285

“Domestic corporation ’”’ (See CoRPORATION) :
defined ....... Se ee ee ee ee ee ree ee 358

Drunkenness :
action against seller of liquor. (See Liquor.)

Earnings :
of debtor, when exempt. (See EXEMPTION.)
Election :
Of JUBHCE jouer dae wae cosine) ane ed ee Sioa dues ann a eaconan ae maancgn ee 386
uty Of JUStICS Bb TOWN. 060 esd oe 6 void owas is sed De OL Seine Saw eee dees wor 401, 402
of game constable.............. SEAS ouasdl ole Weeds Olas is waldleeare ant eieracaPoaand Cadence 489
Embracery :
Penalty LON s.< i ssiawaaen saehiervenguac de eee Kel ae L2UeG wad Meu ESe aod emea tans 258
Entry (See LANDLORD AND TENANT) :
forcible, summary proceedings thereupon............ cece ee eee eee ee eee eee ees 326
issues therein: <5. sccasscssacs. oc se 05 5044 Bd Ses eee aes eae ee ese eeee cee ods 834
Equity :
justice to try, etc., case according tO... 1... .. ccc eee ee eee cece teen ence 7
distinction between law BiG; MOOLISHE 5. oo o5s 4053.4 ais Gre ears ats lnsvovarginea bree sosvaeaceate 856
Error in fact (See APPHAL)..........0. 6... ce ee cece eee cee eee eee teens 85
Escape:
limitation of action for....... Bip Resa ye gk Gee Rca ood eka mbar ea Sia peanut eyes anemia taniaceaeensuo ea 178
Estate:
tenant of particular, removal Of....... 0... ccc. cece eee e er eee ee ent reneneee 824
Evidence (See DocUMENTARY EVIDENCE; PRoor; WITNESS, etc.) :
constable’s or sheriff's return, presumptive Bebe RES RS Se Se GEA 39, 54, 231, 285
depositions on commission, GUT ier as an cones, eae eens 59
entries in justice’s docket-book Heidi aioe avSnd w Gilayare- anand dvena Svarneay maces argyle 182, 185, 2386, 237
on former trial of decedent......... ccc cece eee eee ee ee ee en eeeeenee 216
admissions of member of corporation.......... 00... cece cece cece eee weeeeeaes 219
séal, Of GOMBIeTALION J 2c acceeceie cai: Sad 05 Ssh a dren eeesrdema orate aGeeas 219
death, presumption of ................ ee Sa gala Wisse”, lath Scbgh ONO p OD AVS Dla ROU 219

591
INDEX.

 
  

 

 

Evidence (Continued) : Page.
secondary, in action on lost negotiable paper ............. Kirbieidduiewend a OOl, 302
judgment against joint debtors, when conclusive....... Gb feiaitareraso lois ot eue Side Sc eihie's o.5%s 313
of publication of notices...... a neala lavage Me wrevid seaman ate tates eee aie Verang Hace weaves 391
of foreign corporations; Ct in .cis08sndieec deme a eer waseeew ase ieee ceed 289, 392
of village Ordinances; ebeisiscceseccs vies ooneeesas Medes NewS Cae oma e ee Hees 237 393
of handwriting......... UNhos 48s as oh SEOSeNaNyS aaroiedewietsiate a arateiate ota 94a she 8 393

Examination:

OL BULOUIER. 2... crsrcicese-dacerene Mardis Vale SiBe Hadie Sedrre Roieieis iieviwcccceremercnwesscier 20T

Excise:
board. off «jax wav anenaontees eascaatsseuie seeeueeeeres Ss wacinigiuisiais einisienwiereewie's. 2000

Execution (See Forms, execution) :
after defendant’s discharge from arrest....... S neieseesen ane aeBeis eeu gee wee oie 24
on attachment not personally served.......... aWeaauele Raat AS Sea DEE isle hares 33
in action for. chattel. <5 <.css cee: cater was ase seein eels cieiewiaien se eres. 89, 77, 258, 284
against defaulting witness or juror..... Fuse Wy Se ses eee Wee es aoe veiea oats sales 57, 66
by: county cl @rk. 03 2 s-c.s'e cies oan ais oS oa We sae Sa wh See Sa a a NR a ietere ewe 69-72, 79, 258
against joint debtors .... 2.2.2... cece cece cence eet ee teen ene eter ee eeseeeres 1
when to issue..........-.-.-
requisites Of .......0000e2 sees Je ewes
indorseMent Os sci. cacds caress sbseda wane yeiASGEaeces Gus Gals sieusears’

TENG WAl Of 24, caaciesieseres ees ewes ca xodewnes eis Sioa a soreouctenoeie aiiets 74, 391
exemption from’... scisdes veers eersdiaw sae eter enwarinne s Ooes oes emoaemes aeeerers vis)
indorsement; of, levy ON s sien sare cose ¢ awe Sess Mas bas Hew Glew eee s ROR T EEN 75
levy and sale under s.cssasanestiss ses selena ake ses cokes av eeains 75, 259, 264-266
return. of (See CONSTABLE): cesccsess ve shies scishe x oe eels BOG Ose ae aysteeres 76, 78
on docket of justice’s transcript ........ 0... eee c cece eee ee eee 69, 72,79, 258
stay Of, On appeal 2. 2. taesteateaies cksaese Dssia4 Siete tye Bela d RE Rue sarees 82
purchase under, when not affected by reversal of judgment...............+-4-- 85
in stray Proceedings... . ccccwestees sed caecaceed se aves ge eye eee de eee eee sing 107
on filing transcript of N. Y. district court........... cece eee e eee eee eee eee eee 145
id.; of justice’s court of Albany or Troy ........ 2... ccc cece teen eeeee 147
when presumption of payMent......... 6. cece eee cece eee eee eee e ee ee eens 174
by and against executors, etc., when allowed ............ 0 cece cence eee cee 208, 293
officers not to purchase under........ 2... eee cece eee eee nee ee tence eens 259
EXEMPt PLOPETtY 2... cece cece eee teeter eect ene rete eee ee reese eenetes
when personal property bound by........... cece cece cece e cence eee enter cers
preference: AMONS. . oe scscdcaeee Cee SS Vesa ba EG Sea ae
when attachments issued. .

title-of purchaser, before levy. ..ccswaisesisvicces aseenenor geeks as eevaeres sone
levy on money, and evidences of debt........... cee ccc eee e eee eens 265
bailor’s interest may. D6 8Old cds wierd oats yee Peeters tees sa eg ease were ee eS 265
against person. (See EXECUTION AGAINST PERSON. ,
against public CMCers wi. .isacivseseavie ee ee haw iE See eee REA SE ae 309, 400, 401, 490

the pedple. ici. ccctn earns SQESEEEERESASSAS REE Bee cl slain dace 320
in summary proceedings, stay Of. ...... 0... cece eee eee ncn teen teen eee 338

application of provisions on and after September 1, 1880

not to be served on Sunday, or Saturday in certain cases

nor on town meeting day............. steerer initereee tae seedd aaa emeamae

to be served by marshal in N. Y. city. .... 2. cece eee teens

in. tax sale proceeding s::...c00cc4049448 454 45244542 SRN OH AMOR Ren eRe

after division of County: 220.2 nicsensekaens, SHARE Beet Pees) Sasa nay REY OS's
(See MEecHANICS’ AND Laborers’ LIENS ; anne Laws.)

Execution against the person :
of defaulting withess.-.222<ssssc<t santa ta quand Ae he sian eeeecewe eee needs
after docketing transcript. .i0sssececess beeen kG eens 84s g 88865 Lea ed OR ENOe
Upon JUdgMeNtic 2c. ose Saves tas REM E NGS eis 5A TAMAR AACR Sem EINa Hs
imprisonment of debtor on................ SNe PORTOLA TORE ORGAO EOE
discharge theréfrott....c.c0c.65.eccr tata se seabstaraiavdaoand
constable not to act under after return day..
in: favor of Working WOM.) ¢.0 vsdodtioons ches cnet uonncnie tae oh ecteaeeenEBl
discharge of judgment debtor. (See JupemEntT DEBv1OR.)
custody Of prisoner. .... 6... cece eee eet ence ee ene tent e ence nen ees
OE FOINt deDtOR ced wacwiayguased Male eR RI ES RDU AE eo are tae ae ae 71,
application of provisions, time Of ........ cee cece ccc ence ne concent eneteeeneee

592

  
 

 
INDEX.

 

 

 

Executor and administrator : Page.
action against, justice has no jurisdiction........ ish DUO RRR ES Raine gee 5
action by, may be brought.......... ese cece eee e cece e et tee eee teen eee 6, 393, 394
limitations of actions by and against....... 6.6.6... 6c eee eee eee 177, 180, 181
TAY GUC BODO sy egan couse wae dois oa Rae MG Rao OANA Awad QeecNe > i aaaea a ET a8 196
action: Dy, HOW DIOUFG sos wade eoareacids akan e vee ydewebals aie wh Ue bveimeeNy 292
counterclaims against ........... 0c eee eee ee eee nialexaisedinsae eA eres eusecemiaite Mae 44, 2038
unqualified executor not necessary party ....... 6... ce cece eee eee eee cee 293
execution in favor of, and against.... 2.0.0... 0. cece eee e eee eee eens 208, 293
execution on judgment recovered by former...........0...0 cece cece eee ee eee 293
what actions may be maintained by .......... 0.0... eee eee eee ee eee eee 393-394
rent; remedies: for, byico05 sire sae koe es okey Lek S, Pe a sing age asides wale Oe: SS 443

Exemption (See PRIVILEGE) :
property exempt from execution. .......... 0.00 cece eee e eee ee tees 75, 260-263
from. JULY GUY. csc ois case sae ces Ve eene renee bese BITRATE TEAR ES EN eee 247, 248, 388
of witness from arrest. (See WITNESS.)
of debtor from: arrests <.050. x0 case sess doeneaveewww Nees tewweg Keee tes ssae ea es V7

Express company:

BOTVICO UPON! cases sstes4 Made wks soem Reine eee ye. Pees kee ges SEER Seas 12, 18

Extortion:
penslty: fora. siias seul ose tngesesioeeinns su AA AR Rae lau ee ke Aneta eae 352

False imprisonment :
justice has no jurisdiction of action for.......... cee ee eee cece tee eee eee es 5
id. in N.Y. districhcourts.c4,0s nseaceesaie tiem, anes ett SS ie ge oe Rese ase savees 141
id., in Albany and Troy justices’ courts.......... 0.0.0 cece eect ce ence eee eens 146
limitation Of action, fOP..os jakcia ses vie ieee Pbw RE RE Ea Se eR ET RES Sea wee O 178
ae PCTSON ALAN JULY ha oss. 2a Scar eme@iuaniead saa dunes ouahes Sao S OSLER OM aD eNeaa eS 357

Fees:
of justice and constable, on attachment of witness or juror ............ ... 55, «66
of justice, on sale Of STAYS ....... ek cece ee ce eee eee eee et ee te ee neonates 104
of justices and clerks in Brooklyn... ..... 02.06... cece eee ete eee e teens 119, 120
of justice and constable, on transfer of action to another justice............ ... 134
deputized person, not entitled to 2.2.0... e eee cece eee tee eee eee 135, 391
for taking oath, acknowledgment. ........ 2.00. cc cece cece ee ee eee ee eeenes 149
of constables attending Court.... 2.0.0... eee ee ce eee eee cece t etre teens ce tee 150
of justiceof the peace Inaction . ici cesswes vee ccw cans Seen eews eeeben ee eases 150
Of COnBtADI eS ais sslicad ies ning hi erelee aie ea Renae RGR VE SAH, Seto a eres 153

afiidayit:as to: travel L606 accurate: aiqui, AOLde Sik ste grave crsiaela glare 154

ON COMMISSION 6 si sivieteaist hacns ga Weieseinke ara s ¥ edict hbase ev acai asic ag seb ne Gaavarsinnal separa 155
FUTON Ayes xis os exo 8% Jie SANG Hes US Ka sAMaEMalinunnigT Mote Rey ee eee peMte Ste ess 155,
WItMESS'S sivadiuiwne Hews SOE ES ee oe soar eRe Sule Sa RENAME RIOT TELE SEES 155
prepay Mento 5.2 cs cigs snag 44d see Wek de DERE ER SEE Yo Mee SH reedeg seb Eseelow es 155
by whom to be paid.... 156
special laws excepted ens .c5.0vexs wis vee 4 Wee ioe eHeteranEr aN KEC Bee PEE ETN 156
change'in law'of, provisiOn- a8 tOssi.sancssesavssvws os eg ss esse Rese Ess ea es Gases 156
when. justice; ete., cannot tak@iess. oxjsedis save oias ches sees oh 8525 6 Os cam a aRR TRS 163
party prosecuting, etc., as poor person, not liable for... ... 12... cee eee eee eee 198
not prescribed by law, cannot be taken....... Ria atiegmeteeat es Seeevesese ss 3 852, 408
for services not rendered, cannot be taken........... 0.05 see cece ee eee eee eee 352
CXLOTHON, “PEDALY:, 24. neaccannumaseead denideg” GPT AS Se bees Teens eR eRe EASE 3852
to be accounted for, provisions aS tO. .... 66. eee cee eee ee eee eee tee een neee 353
-parties, attorneys, etc., when not allowed..... ... = 353
for official oaths when gratuitous............... aoRinchesd hamid das eke s eemT eae oe 353
officer may charge for fees paid for oaths, etc.... ...... baie ans 353
may demand fees before transferring paper............ 02 eee ee eee eres 354
comptroller to audit certain............... sisscigigna slyisrs side siete letens oleate) As Asiana 354
application of provision...............04. Souler saaiets vey Liens Deerbaeaeas 156, 360, 514
county clerks filing eng .e 0. oss specie ones cate wast Geceh pila ooe eas coe 449, 461, 465
NO Naw NO PAY Lcdscigweue Kea seis yaede ender els Seg ils Co ng Raeaaede 352, 408
of fence viewers..............220005. wo ae waa ae Siaie wisbanis Gael alsiegi mom asenNdr 424
on highway assessment........ 22-2 ce cee cee eee teen teen eeees 441
of game constables .cc0% ieee soo ocead aecenbeeds HiRes sie suGe ee Sie Gigs 490
of excise board........... sOeeay yews vras 2269485554 Ges das Sarees WS Brees 500

[75] 593
INDEX.

Female. (See Woman.)

 

Page.
Fences:
division, who to build. ........ 0... cee eee tent eeeeneenes eae weeeviewae eowees 425
on bank of stream 1... 1. c cece eect e ee eens ah seia iy Sadist de Ane adsis@uneiess 425
when lands may lie Open........sceereccteeserceenceree sete eeeeens 426
refunding, for fence built. ...... 6... cece cece eee ee tence ee enenens 426
after transfer of land. ......0.cccrccscccececensereeneeeenecereeeces 426
fence viewers to settle dispute... ...... cc cece eee cere cece cree 425, 426
how chosen .. .......... ebuateenuanslaxsranacese acbnatinane sue snansusinees 427
PPOCEEMIN GS: DY. cies sesiaseiees nse vo ceiesmaee ae, we aiosaroravs Qz
damages, how ascertained.......... aitbsSvaiauesitea Blan s Rie) aeigeoNantasayavatN' Glu iG FLAN 427
when party injured may build... ..... 0. cece cece cee eee eee eae 427
POW OWL. O Ls cas “uaa sos ca es sebictec dh. cies okena es SSIES BRON Rhea Aldea anteaTane Sha 427, 428
injured by floods, how repaired............ esc cece eee r ee eee eee ees 428
witnesses may be examined .........c. cc cece eee eee ent en eeaeee 428
penalty for neglect to keep a ‘‘ sufficient fence”... ........cccseceeeee 428
sufficiency of fence PLESUME ss: sics ssieise ewer aiace Sisiais Sieisa eee Ads aR esl 429
penalty for not building, etc... ... 6... cc cece eee eee cence ene 427, 429
Fence viewers (See FENncEs)
dutiesrol) Tees) C66. gg cinucicu dawg geeas eres Saag eRe Se 416, 424, 425-429
WHO BIG 5 sre ao saay anaes sre tans syNasap on ets pour Sagi Scale ac annaetavar y Sarthe wraaigrn g aiatere ere RCE EG GIES 429
Fictitious name (See NaMB) ............ see dc "tae ayaseaaueaaraaiteanialamie:, uae 14
Filing papers:
Place Of. 6s ccs daerG¥ hoes sessed ese hease ces wee Soesene eye sgassete ees y eo% Tl, Bid
In Special Proceed IB x, ash sic: gi aceteits ei armeads se aR Mra Nae ais ss aS cone e Te eae e ENE 213
Fine (See PENALTY):
POON DOT os socc scene Conse He EPE LA KSEE TS BERRA REE GS 8, 5, 294, 318-820
FOE CONLEMIP YS os oc 2 Soied Sie bie Sao EG Rd bs ei Sha OOM NGO RS RoaR ASS teh aE Saye 8
1d. GOs WHOM AIG: 5.0 si vecasinies Verlensmaielecianer srsadla Wiawue ere tne ai walarers Solanpoueen me auband 9, 395
of defaulting witness.......... RejieREReOE SQSARGRA AREA OTROS ROR eee ne SS a 56
execution therefor..... 57
of defaulting juror 441
of sheriff, in special proceedings............ cece ete eect teen ee eeeeeeees "166, 254
remission of, by superior court of Buffalo ........ cece eee eee eee cee eee tees 171
DY COMMtY COUT. Sswisoea vi nacisleeied to4-sisiedie acee tale ra ek oe eee eee. dae
Jim itatiOl Of ACO LOR sc. sieced ores oreisiers ein. 016 86S RENO Ow Ew DEAS Rarer ere rede see ga 177-182
of officer, for not attending JUry. .. 66s <se seed dane s Sed becee ase adobe eet eeaee es 254
action for, when not maintainable... 2... .. ce cece cece ce eet e teen eee eeees 318
in name of people......... 6... cece eee eee eee nf ie Sihe ee ay Pee 3820
proceedings in. ........ es eee ee cece ee cece eee eens 295, 296, 318-820
application of, in towns.... -...... Fac ee cece een eeeerec ee obs OG ar dowaies Sraeys Sialenes 395
district attorney to render an account Of ......... eee cece eee eee ee eens 319, 320
for USine Certain, DArTels, CtC. con eens cesinneae cesses pewseeewewneamenee eae seats 396
action for, in New-York ‘city di eee hd RS Bears, wy Sr He MiewenLsewa see aee w8 dogg BOT
for taking rails, etc., from bank of canal.................. DieRe DER CLES ESET 397
KCUOM TOR, Dy GOW. Disp .o.cc ova ane susoncaro auecartetcopa\evevires Gnaceiau'e bens Lecer at = aiaiaud loylg: xavaiausy avei¥l Shavers’ 399
for: Mot pay inp DAG way WAR. < oisissc siaye-Seoreyarechcous seas hase auprens auack prea bua gore amar eco 430
of juror, on highway assessment .......... 02. e eect ence eee eet e eee neneeee 441
Folio:
CeGhed: .ccwoers tiessews sles Rinks. ae aOR. aeR aN er SaIN Oris ule aamuasiomaeesmeweaees GOD!
Foreclosure :
of lien on chattel (See ACTION TO, etc.).........00e iGuoae cian peviatesinweetnceswn 280:
Foreign :
corporation. (See CORPORATION.)
laws. how proved.............ee005 ns alice ai'eveie'e stele ol sts eieiecaaeie’ese.er sisieelersacend dean 239
records and proceedings, how proved... .. i EERE EER DL Ma kw ees buen sone eeeaNes 243
effect Of ... 6... eee eee Saiamarerecss sidisioigiaiuiseeieieacereaueaiwiene 243
record or document, how authenticated....... weakens caer Re cio i ed wen Wine 243

Forfeiture:
action to recover penalty or. (See PENALTY.)
limitation of action for..... ....+++-e---- shadce Wekeeee eNOS 177, 178, 179, 182

594
INDEX.

   

Forms: Page
acceptance of offer of judgment before answer... 1.2... eee eee eee ee eer nee 545
ON MP PCAl ciate anne ee aeiteges Shee ete 554
GCUMOWLOAGMONE. 5c da wiey ev hSSaRs, eased ayaa Desai Meeebed Sarath ag Sb aie PONSA Dis 519
affidavit, for order of arrest... ..... ccc cece cece eect ence eee e eet etenaees 518
OF TUBE CA LION 25x72 a ceicturs anna dnsaiivaldve dlansrs mat aaiale Ac aaG here aaah eat 519
for warrant of attachment............. esse eee cece eee eee cence etes 521
for requisition to replevy........... 0 cece cee eee eee e eee beeeeneeee 525
by defendant to reclaim chattel replevied... 0.0.0... 00. cc eee eee nee 528
third person to reclaim chattel replevied......... 0.0... cece eee ee 529
for attachment against witness. ...... 0.00... c eee cee eee eee eee 585
of service of notice for commission........... 0... cece cece eee tees 536
FOLICOMMISSI Oy e5, waist ys sealer aetahas eiedlec vyeewe teers eees, 2 eeeses 536
confession of judgment................ Sede d whe ease deans Bares ees 546
prisoner's discharge is. ossiei nex doweseegei ede suse snecaseaaes ee 551
of service of acceptance of offer of judgment.... ...... eves teva Nex.es< 554
justice material WitRes8 i. isc sacecces sce aeconsGnes wesc eee rersesess 542
of service of precept, in stray proceedings.............. 00sec eee eee 560
Of NOTICE1O? QUIt cists ccckaneaw eines SER LEAN OES CEES EATS 554
of precept in summary proceedings............... ceee eee 568
to stay warrant, etc., where premises sold on execution................. 571
In action:-to foreclose: Mens. ccscwsuderc: Gevadey P80 LEIG eee ta Resende 573
agreement. to. Stay SXECUTION, «5.0 cs cco apecesaeenciieis Gihies, Ais kas bea oe eee Ewa Re 546
Q@llowance Of BUTCTIES. .. 6. cc cee ccc rete eee eee eect nett tena ee eee nes 529
GNEMEL, BONE] LOT «se cdeseinca sininieioceia ie ie weed M8 8.9 aw eesa BE byes S44 SOE Sa Ose alas 580
IM-ACHON TOT Chattel cc ncwae-covarstadsedee ag saiedecae oe mesa ae 6 oeeee 532
in action by or against corporation... 6.0.0... cece e cee e eee teen eee 5383
OF TItIS! tO TaN: a wipeninies erie te whe Ge cu Se es ole ea Real OH REMOTE Mae 5383
in BUMMATY Proceedings. «0005. ec e ee Ka sae oe ME Nee eS OM ees ine 569
In case Of forcibleventry, ete: 2 cess cee ede erstaiewie b Hee weiere Hate Hie Si eiers 569
QPP FrOMJUAYMENE 0 6s sss Sere cecdeoain dg ea ee ase eg eb ade ea we eae ea 8 551-552
Notice to! HimMit gos ions erga sig eo os Hoaretes waasiee ger -. 551
NOWMCO Of icrig eri geieas eee e lene GAGs eRe HORE Re ee 552
undertaking Onewe ig ice dy iee'ees ceed eeese gees sashes? 552
PEUIN OW ib wyteses. 3 oul seem ct sade SERS Puke eA a Reres 553
offer Of judoment Ont. sci wisi5s wom wiea.a seresarearraenmectser 554
from final order, undertaking On... 1.0.6... cee cee eee ee ee cere secre eteens
application for a guardian ad litem... 0. cece ccc eee eee eee een eee eens
approval of suretics, CCC... 6... cece eee eee
arrest, affidavit, order, undertaking, etc...
assent, to interrogatories on commission. ..... 00... 0... ee eee eee tenes
attachment, warrant of, affidavit and undertaking for
WEITHIE «cc 1605465450460 454 AOU ER SER ER eee eee
INVENLOLY Oia .a dadenea dcactee kee ase ens Sieh sek
Certificate thereon... 2s. dviess sass Aa eNO RR OE
defendant’s undertaking on. ........ 2.6 cee cece eee eee
bond Lov redelivery” Onis. 260 cc cucristreethisnionsio Cases oRs
Constable's TEvUIM, Oso. o. see ceeded etee eae waa se
ONS E WAP oon oda 6d ed 19h a Sd he Rem eee
attachment against witness, affidavit for... .. 6 kee eee ce cee ee eee e eee
WATT Ob TOG 3 edna tess Bes ann wa aves ehaties Sev bils deed inte au Nee ease
COD VICHIONY. OM, 46.57 .c a aidia eigiae- Slaven Comets woolen ella s
CXCCUHON OD wisi n cies s caw side ened ss cae ea ears CoN O eR
warrant of; commitment on........... 6.2 c eee ee ee eee
APORINSE JULOM aii: ses: caleecnne dye Real ote eR, BARA a Rka re Rae eee
authority to serve summons or other mandate. ......... 06... cece eee ere eee
bond for delivery of attached property to third person
JUSTICE’S acsuaive chy as ees ose eae weledin Gru eTeeh Ase Hes cae s
certificate of copy of attachment and inventory............. 60. e eee eee eee
of service. (See return.)
COMMISSION 6. cee swenee tenets See BAG HORS AS SRE SEG ES FOS RRO SO GESTS HE 538
NOC OP cic Ped RIES TSR LES SPs Sad Rae Ate nligt AAeesk Goa Heee seas 5387
proof Of service thereol wicca sie shsesswer WA Fede Pts SRERwEhNW okey 5387
Aa Vt: LOT aos dis 3 Seige hae a chee Eee as oe A LO ARS As aoe 587
‘ commission to examine on interrogatories... 6.66. e eee ee eee eee 538
INLETTOPALOTIES ON, Et ese: cd ccied yee nace a anes Hide Malsialaistig cia dae See mie iene sale 538
\ consent to oral............ bias Naisiabeeten a lo obs t Obs Diahabe sec N ee taees9 yet adapta aah 539
commission to examine orally 1... ... 0... ec cece eee eee eee 539
 

 

INDEX.
Forms (Continued) : Page.
commission, oath to witness by commissioner ...............-e eee e cece eee eeeees 539
GOPOBIHON OD cise se unaiae c pepe ene ees Conde e ees vee eee sdp ale a ateibey 6 540
indorsement on receipt of...... ates ap Sayers sles lateiehase pista cigs laks "ok vee 540
complaint, general form... . 2... eee e cece cece cece eee eei eee Uiwneoe se cleo xn os 530
for work by domestic...............0.ee eee ewele'es 531
for penalty ........ Sn ewn eee ceeds ste a tise he's --- 581
for chattel...... sins a elateWionta mbind net aAsie se stata ora ssa’ sa wid eve we'd aiay 3.4% 532
in action by or against @ corporation.......... cece ee cee cece e sees e acne 532
by wife to liquor dealer. .......... cece cece eee eee ae oe eee ees eae 557
by wife against liquor seller ........... SOnsee ta seine sie ee ere 658
to foreclose lien... ........ ccc eee ee eee cease Suey ees eines ease ay 572
commitment Of WitMeSS ... 6.0... cece cece cee cence ee eee e ence ee es 541
Of JOTON ves cedars geeess woe seg dseeu sete Eee ee Eee rR Eee tee ne 644
confession of judgment ‘ 546
consent of guardian ad litem 6.2... 6. cece cece cee eet ee eer eee e renee ee eeeee - 518
to oral COMMISSION. 6.6 ccc es ec ee ec ees eee sete ceases ase tues sckes -- 539
constable’s return, etc. (See return.)
contempt, warrant to arrest for 2... 0... ce cee ce eee cere ee eeeees divies ane wee ODD!
Tecord Of cONnVICtION TOF cavsaces acseeevosavied ade'd SGiww seeeenaie va wee 555
warrant of commitment for..... 2... ccc cece eee ee eee eee eens 556
countersigning answer to title to land ........ ccc ccc cece cee cece een en teee 533
conviction, minute of :
Of WIINERE ye. d ee cease Coban se Yee aesin alee we maar as 536
GE JULOR ies, 4 x Sceeaiess o4.6.ci 0G weed ised sora baceusie be areaeee eae . 544
for contempt..... Beau es Ses Des (ne ash wa tenaiarayeees ovarian eyslane ee 555
demand of possession Of StrayS ........ cece eee cee ee ee ee eee Ris itianace his ended weoemease 562
deposition, of witness on commission...... sities ehsls ai ere yeasad Gisaei tr btete 8:9. Gadeel Sate braces e etale 540
discharge from arrest, notice for and orders .... 0... 0... cece eee eee ee eee een 520, 521
docket, entries in, in replevin ........... LAGRGHEEREES CEES HS Hehe HARE EERE ESE 547
INSRITAY PTOCCOd NG Biss Siete as dase sere SG se oe: ame eee? 561
examination of sureties, in repleVin......... ccc eee cee tee ee ect teens 528, 529
execution to collect fine against witness ........... 2... cece eee cece eee eens «-. 536
to collect fine against jJUTOT... 2... ... i eee eee e eee ee eee ene eens 544
PTECMMEN EO SLAY sisi did 5 aiaiovese ark Sih ores seas, 98 Haves NOS averdg B Raveeeedase 546
against property........ Sisia s Taree cae RRS AG Gia Mae etes dares oad wie nay 548
against Person. ........... eee eee eee ee eee Ruler cap beste Sevaged aye tes His Deore 549
in action for chattel, for plaintiff. .... 0.0.0.0... cece cece ee eee 549
on attachment ............. ave) sy skies aeaa iad cues Gua Sauls Genes enniete tre it 550
against joint debtors... .. 6... cece ce eee eee e eee eet ee ee ee eae 550
indorsementiOf JEVY ON s..6e seeerdetie tare theta abel asebees wiereerereeere lar sual 550
TLOLICS: OF SE] OI acc Layee sararesd saan sid aOR aces srs yecahciSia- Sie Grains alerise is Seems WSS 550
TENE WAL OF 6ce.eceispeccoierstcvreie aise acdsee Pinicsseeetrvat uaied aoe nciae es SAb 551
to enforce mechanic’s lien ........ 02. ce eee reece eee eeeeeneens
Sorcible entry ANd Getainer sc. occ ccec cee c ccc ccc n cee e eee eee cee ees cee 567, 569
(See summary proceedings.)
guardian ad litem, appointment Of... 2.6... eee eee cee ee ee ee eter e eens 517-518
indorsement ON COMMISSIONS .... 2.60. we cece eee e ee eee eee eee etaee 539, 540
on execution against joint debtors........... 6. cece eee eee ee ere 550
of levy on execution............. PELE ERR ee CE ee ee 550
interrogatories For COMMISSION. . 6... eeeeee ABC etoks TOMAR AR EGRAES SORE AAS 538
LVOOTLONY: OTA: AEE ACH IA SHE asa ise ay oce seco nrbee AN Rah ENE AR i aia BONS Araceae aie sts ores 523
judgment, on defendant’s Offer ... 6... cece cee cece eee e ence eee erences Rate 545
CONTERS ONLOL Sisco patie Sb TRIS alee a sae la LEIO Ysera aima ite gate ete pase 546
ATi PE Pl OV AN ccs se ace descecdcaseit SA Sei SEE Nie PA De Ae aN “Haale ang areas 547
HPAMSCTIPC OL svsisua siaisuesteceaie disk Gee AAAs Tonite sacw RAIS 4aaeR vere 548
in. action to foreclose. lien. 0.6.6.8 0 sasa see cee veisin denice bees bieer ones 574
justification of sureties........... et Niece Srceueniaysty a ota a Sue sucioasectrone menisince acace his 528, 529
LAM ALORE: CE TEMAIVE soos arc. snag sds aoe so desca bs disne area Hig aire Oba Ree. hale RT SOROS 563-572
(See summary “ proceedings.)
MANULE Of CONVICTION. 0 cares cnccnccnnenee scene nent er ate eee e eter ees 536, 544, 555
notice of application for discharge from arrest .............. eee ee eee eee ees 520
of exception to sureties in Sepia sda beoteterlans Sak Siaite a bdesene’ Srases Sig Sian Miayates 527
to reclaim chattel replevied. .0.. 0. cece cece eee eee eee ees teuese 527, 529
to plaintiff thereof........... LGiiswh Sacet nea me ee Meshes Danser dined access 529
£OT COMMISSION ay a ese c sean es God ah nk Dosh esaens bee asni doh iecag Riau Hressuew. Bsadds be Nae 537
to produce paper on trial... 6... ce eee eee cee ence etree teens tenes 540
of sale on execution ............ Sivikaet ese eines jas Sinise Hees de sista eas8 Heyes 650

596
 
 
  
 
 
 
  

 

 

Forms (Continued) ; Page,
notice limiting time to appeal.............6..e00ee obs nae ots éderelemiadayoaalticn cosas SOL
Of AP POal 4 age sectea made mune an ROUS TaD eleidd Bosh, GPA ene arate Weateaa aceite 552
of delivery of undertaking thereon ...... gb ig el eernelee Greeley ow Gwen eamed > 553
by wife to liquor dealer, not to sell, et0. 2.0... 6. cece ee cece eee eee oe 557
TO PAY TENt screws cogs Heise es wesw ee sees ee aSidaenereelnduesiow Semtaaieus eda t 563
COVQUIti-c.0.52 sternviedaen wae Seen nea y OSes Ladwea tae WislaE dena ea 564, 566
by neighbor of bawdy house ................ Se ee eae ee ewes Bey wes euseeMtons 587
of sale, in action to foreclose lien
OGbli, JOLOL'Ss.s sand dasiswaniew ra teh ness odes kee RED 4 SOMARER GENRE Meee Ray
WANGS8'S as ccscyrcs here dukes ae Pine ATNN SLO AR ESSER A Mae eewne
offer of judgment, before answering... 1.2.1.6... ee cece cece eee eens
OU EP PCa ss is srese saa. gdavis seater ie Suers Wash euendcarew eidevsenauiwd aanwimad eserO eens
Or Ger OF BrP est, AN aVAE LOM a oc cs amareirgaw asain ae) GH eUda Doan pes aise ede eee
UNd eran, LOR sca aeikia cn So he sialon ha ara tue, (G eaumuermeuremeieneasana
form of
return on
notice of application for discharge ................0.000% alae nea
OTAETS VACAUNE oises site saad coven es ane wed Ska 6 Rees See ee
order vacating order of arrest ........ 00.6. e cece eee eee eee tect eee ee eee
Vacating attach me twas. ctexisncglestseigavaivasaceicin i iteiacs Saves wiate wi vievi sa reibia'ece Messe HG
Of Bale-Of BITAYSicacyis wwe readies oh eos egaeaseat aah ad bya stnargiaeinton
awarding strays to defendant.......... 6. cece cece e eee eee tenet eee ene
transferring action, etc., to another justice
final, against tenant. ..............0.- eee ee
petition on seizure Of StTAYS 0.0... cece eee cece teeter e ee eeeee
In suMMAaTy ProceediNPS, «<4 esse cee sok Ard anes esas Rew ecetses eens d
pleadings complaint, general form ........... 0. cece eee ees cect ween eee n eee
answer, general form...............6. Slee wa Apes cise iva dacaavehanat ayer a 5380
complaint: by domestic: .:..s0ss00 4 sass visas Heer Meee snes Keerous wee
for penaltyscs:sceveg «se hbb ca vay S46 aKS4 Se CA aes meee eA oe
for chattels. ...02.5.adenandedtea tied sinsbsssuedieee Series
answer in action for chattel........... 0. cece cece eee ete teen teens
in action by or against corporation
answer of title to land... 2... 2... 6.6 cece eee eee
record of conviction for contempt ...... 2.6.6. c cece eee cette eee eee nee
renewmal-Of SXECUHON:: ¢ 2. cA BAG Hee en So AMEE aA om eee area aE RELA Ac
precept on seizure Of SLAVS 0.1... ce ce cee ne tenn enn eee eeneee
in summary proceedings .......... 0.0. cece ce eee eee eee eee tenes
proof of service Of Precept .. 6... cece eee cette ne teen eee eee neta e eens
(See return.)
replevin, affidavit for requisition. ........ cece eee eee teen ee eens 525
UNGETARNG THEPEON Ss saoncan Sanam Wem srauasivlnte Wn ealaaialeld Hauearrrwd Capa es 526
TOQUISIMON y 2. Oey eich avait’ arate aullnchynadna simuisoe wien a Satan toma meen 527
constable’s return... .... 2. cece eee ee eens bid diane Alia aslo tops 4 Se ase a 527
notice of exception to plaintiff's sureties................6. 2 eee eae 527
notice by defendant to reclaim chattel......... 0.0... cece eee eee eee eee 527
affidavit: thereon: 5 jie soc -aies raw sieeers Ohioradomaeviincnner Ciearddnamaaemes 528
undertaking therefor...... 1.6... cece eee eee eee cece eee eee eens 528
examination. of SNTEHed 55 sie5 ss6is.-so SHliaava Haka eaAUau Raa eee 528
allowance: TheLeOis is iiesssiewiewis seas Maa Ses aN MTST he NEM ewes 529
affidavit to reclaim chattel by third POLSON 6-55 ou jsie os Gielen AG ee es 529
notice thereof ‘to plaintiffs: :. 64 jes leeoes gee nrg eeiid amar dewaweens 529
undertaking to indemnify constable ............ 6... eee e eee eens 529
entries in, dock et-bOoke oa: 2a jincsineehiens eewewe ee euisen medlioaeane s 20s 547
requisition to replevy .. 2... cece cece cece eee teen teenies SAiaaepadwllaned 527
return, constable’s, service of summons 516
order of: arreast .s2050245044 gents sass aes Saws emeeenEES
attachMents,.0.c sensineccces ese oes {is PoG se eeteeeeeaeeeeeeean
requisition to replevy
subpoena.............
WONT 2 has Baa cvevseansuandnacsrusassciies igh euged cece sR ASU TUNES! eB aiebeds
service of precept in stray proceedings......-...+.....-2050.5 560
of notice to pay rent ......... cece ett eee nee es 563, 564
of precept in summary proceedings .......-. 66s. eee e eee eee 568
justice’s, on appeal......... ...... eee acavaes nea rate nein aNdieguoneus ocala OO Giana tend 553
Sale on eDeculion, DOUCE OF oc cece csssaieie sg Fee oe gee eee a eleiei siete pare ighalel eAree ee 550
service. (See return)
settlement of interrogatories on commission ........... 000. cece eee eee eee teens 539
statement of person served in summary proceedingsS.......... 2.0... cece ee ee eee 569
 

 

    

Forms (Continued): Page.

BAY Ss POLITION. tO BOIZO scons daa see we does bbe bb.nb wblene de dodeanmana meses 558, 559

precept thereon....-..... 00s seeese eee enes aushevanes ati Aa digi shea arta aeeeenwin) Ne eiAdaets 559

proof of service of precept ...... 6. cece cece eee eee Madera nee eeeisnns 560

ORDER Of GOs se ctegtences Medina ta saber sae Gowan ceeded atoaiie stil ays 560

Warrant: tTORCOR 4 oessan May soe Tihs base ogy Mine Ole Malan walgeend Ae area ae 560

Verdict fordelendant cab. 406 news cesar erating ew ua awed da naheslga-a ane 561

Order thenean so. ssa cone twne diva sa an wrguenne auteur ee sige e HoeE eG Oca bee sins 561

Warrant: THETeOn 1 csxse snes ean cs saaidawvnbadda sap Aun ewade ne Talla sae 561

demand: Of POSSeBsiON.cds0tn ca ceuakasaesanis : eGeie aie v TAUWe ENE Wels 562

undertaking Gn appealiiss.s isis cevlece es cgew Maedgereadeeeewa raed evemess 563

GUD OTD 5 ces say tasks insvsto pier He grat WERE OL Oates BS NORGE wae VERSE ade wenGIse 584

WD AOTELOM, WACHON acinscs a aise ce sulbie Ue quaaieele weld eeaiseerls wa eie ea ocr es 556

SUMMATY PROCHCUINGS v6.6 00 dG os gee ogissie 8 gad ea Ee Need eb elkab we ge a heeded enone. 563-572

NOWUCENO Day TENG sas de cite G Men isclaseelaas Hage aes ewetleale catbee Dea vebas 563

proof of service thereof ........ 00. cece eee ccc ence cea eeeaeeeseevene 5638, 564

NOWUCE LOQUIts ws iicwiedageclewaina sitions Wel eswarmanakidaaiuannien a saeelsaece sees 564

Proobiok service: thereok 225 wavanuancavaeiass winks vacda sissees deaarde sees oo 564

petition to recover leased premises............e. cece cece ee eee ee eee e eee 565-566

petition to remove tenants of bawdy house...........-eeeeeeeeeeeee sewers 2 566

notice by purchaser; etc., to QUIbS. i502 eva cse pie ancaeesaes Oe atoms sane e's 566

petitioner by purchaser on EXECUTION, ClOs coy ss dea boec's ses sole sae ga wees a2 566

petition on forcible entry or detainer.... 0.0.0... eee eee eee ence ret eeeeee 567

notice: by neighbor toPemMove yo .ics vsie's genie ess bee sed paseueussesedaxseaves 567

petition: by neighbor... is seeseaecdsesis sag dae sey cleaecbaractneeieeeeryss 567

PICCEDE. eres cee eee eee G wes wad nde Tess yee EMER ED oie ead ss ae 8 Ee eae ats 568

proof of service TC He aie ly OA Face ete 568

statement by person served : 569

QUSWEles Moda craeaiae sans eae edsageer She eek TaD WR eee Reman ee Eales F 569

final order against tenant ..........0...esee ee oe ee ee ee re sae 569

Warrant: to: iS possesses, isaac siwela so ale Qoies wales Rh aaae RMON RDI 570, 571

Undertaking to: stayreds sis. sa's ounce dela wale csp heheh scour meee deans wens dgies 571

aiidavit-to obtain: stayie scsi casa aeenpan adders pie in Mieeeaee a wee Bese 571

undertaking thereon sey. enya ew wae nga Saws w a Minn Goa a nue we ee eeure eouie 572

tndertaking on.appeal.......2s:eces eyes teber guste eet etensacemssawies 572

SUMMONG » rarsisisteisi tgs sa gisie digre e'ey, og PRS UAE NS 1 ASE e SOE BERN. slide oN Hee aws wee. 516

Tetra of (See weturn) ¢o2% ccuid aewedavwes ass eek else Hea eian see Wok » O17

BUHOMIGY tO SERVE oii: 5 cere idaivans jiuha iat ahalmevaedinalainalaredy «aly wakes aterm eee 517

SUReICS, VUstification Of 4 o...0<%s wise wersisindnsancakadauin idee tower sewaae 528, 529
tenant, removal of. (See summary proceedings.)

transer UDC OF GUAGE canis wicle Si noslah acta rep puxcntias Bee? Agbeisaele Resco bad wees 548

under mechanics’ lien law...----+::+s-+++ ceeeeeeee 455, 463

undertaking, for order of arrest ........ cc cece ce eect cence ete ee tee eeteeees 519

TOF AttachMen bs 55.45 260s; eauscchacarnsaraaa Maier ee ashes Pasa aN nes Ane 522

for redelivery of attached property...........6c.eeeeee cece eee e ee 523

for requisition to repleVy.......cseeee cece cece nese aee weaeee neces 526

for redelivery of chattel replevied........ din plas yowewieeg Seales eas 528

to indemnify constable in replevin........... 0.6 ce eee ee eee eee 529

On Answer Of title to land icc scsisie wie sis sais $8 ee peas WeieisieRaNeRONs 4 533

for adjournment by defendant...... ..... ss Nee heritage a eacies 534

on adjournment to discharge from arrest.......... ib sitesyeewawes 534

to indemnify against lost note, ete....... .. sisis arglgietatere’s treo mare 543

OD APPA] si.scsine weseais a wists ev ges gover suis Siam oiwin acelin distant ardse' sularaane 552, 563

in stray proceedings............... NP PS Gaon ee bcenta wea war pa 563

in summary proceedings, HOBtAY! cc.ban ened ws le Ced ew sens end oa 571, 572

in action to foreclose lien. ..-.. 2... scene eee ees ne cseeesenseneneees 573

BONUNG oo desstcs 3 tie sweaya class otatete ols Pieineieae: guid Rash sy aes ei Sletins Suneeioarenls decease 540-541

motuucigah Benvied Ol, ac: ce-uay's fagie@ gu wi esey mee aaimmcdyasd = leuk 541

verdict, general form...... 0... cece eee cece eee Siniadsisld enineaekeeNaemeNa re wae Gale 544

OUARCIZUTE: OF SIPAVB) sss sce a paelese alates gists eel adainatene wisioadwes ans 561

warrant to arrest for contempt............ Paiwdle eae ea kes MAG SA's Eee eee ee ose 555

of commitment for contempt.............. cece eee eee eee ee ences oes 556

of attachment of property........ Stetouaees 522

against witmess.............. ai seeeee 586

of commitment of witness....... 0.0... cece ee cece eee eect teen eee eees 541

of attachment against JUTOT .... 1... eee e eect cette enn et etn eases 544

of commitment Of juror........ cee cece ee cee ee eee sere eaas Soae 544

tosell strays.......... ebge O34 50 WORE SBR Sepa eN desea eeaeee veeaa aes 560

598
INDEX.

 

 

Forms (Continued) : Page.
warrant to deliver strays to defendant ......... 0. cece cece cee eee cece eee rene 561
toremove: tenant; Cts cssies ¢ so eece sini swernscewoiwnd seed vies 570, 571
to seize chattel in action to foreclose lien......... 0.0... ee eee ee eee 573
Fraud:
limitation of action for.......... ie Lihat hap etateetee ees VA eles Sawing eae eteeas 175
Game laws: =
as to deer and MO086:... 6s ieee dena eed aweenene ewan ee Seems ae eee Ceye eee eee
wild duck, geese, or brant
mode of hunting’ aed Paweedes
quail, hare, rabbit...........
woodcock, squirrel, grouse
eagle, woodpecker, song birds, etc 1... ce. eee c cece eee cece eee eens 478
Tobin, meddow lark, GtG. so. 65 cies seas ama avoe csceatacoleceldyaidg aes sean y etalasoee eded 478
BRAD PUN S: DINAS is. saaie-srsraceyavovdcotenars doesevecauesas Saas deusspuniosace Ries Boia Oa a Oalacwisee aia. 6 478
exception as to persons studying habits of birds........... .o cece cece eee eee 478
S10 CESVO YING NESS ook cd ened EARN WOME TO GA! Mdiieumunenaaee res 478
tIESpASsiNg On Private PaLrksainn sak swawsdossewe tea sosen gies iene oa oe yearend 479
notice forbidding such trespasses....... .o cece cc eee ence cence eens 479
OS 10! LOU bi cvs eases te ase Heese REG CeMEE Sede Se aR RS Kee eos 479, 492
MDS cases Ge einatataa triads Sesion Mrbac alos halite archabiclalehet Gacdhd Meda Metesoeete etwas 6 480
Catching ASN, eo oes acsse ge! ctens Cigje ca arabe ANON teresa ads Ws GAAS Ho Whee te wee eA EE 481
selling or having fish in possession, pemalty........... 0.00. ce cece eee eee ee 482
possession: of mets, snares, (C0 s. 6 ss. tee ates a HE SES eee Se oe ga EE EE SS
deposits in streams prohibited........ 0.00 cece cc cee ce ne ences seer tees eeneee
size of meshes of nets and fykes
private parkas << s22 dccmiedsudasiag a2 dais
taking fish from...........
alons iat, ishsways . << ciao awerneds soe Gas Gew Tadees GIES HORE Seb ENN ERRORS Eee
bounty for wolves and panthers
hunting on, Sundays cs.sese2 sees cass ocevce sane se ea Seeeedesesee soe goes ee eee ess 486
penalties under, how recovered ........ 0. cscs cece eect et eet teense ne eeee 487
judgments, how enforced .......... 0c. cece cee eee eee cee 487
execution thereon ................ LHe Aa VETREL OH Geo eOw ees 487

misdemeanors, punishment for
jurisdiction of ...
fines, how disposed of...........

 

 

4B TOVENLOTCS LAW g.o.0:csi0%s. aes Shay Basis Alseatanarsy Auster aeaaee uh cae cane emia dias sear Soe AS
duty of sheriff, constable, ete... ... ccc ccc ete eee ene e ee ee ee . 488
Pehal ty LOL: NEGTEC ss. cs ovecesernd:drorcignstareisiaperaidtaseraise te elas daa ied Seeded eras arhan toa 488
selling and having game killed POMONGUML a5 coast ves snect cis aioe Boeehes 488
regulations by SUPErViSOTS... 1.6.66. cee cece cette eee eee eee e ete et eens 489
game constables, how elected... ..... ce csceec eee cence cee Papuobaslbereene a dees 489
CUty Ofc. pac nani aeno eh askensas aera niaeniuanatnantls amg andes 490
COSTS ALAINGE ahscas Yad ed saue.e Mee kaha whee ed ele He RR EET Chee 490
Arrest: Of 1OMCNAESTS 4 ope accisies Ss candies ay aed GRE NS Rowe Chm aw ade ages 490
Search: warrants)... ceviaigaccad inion nike cea hue sinbig CAA WAS AN A OSTEO oe 490
TEPER IOP is nav cisnny gis ti wv mars gare eae slg aang Naan MEMES SNC ew OS eSNG ES TE 491
discontinuance of action under ........ eee eee ee te eee tenet eee tenee 491
as to oysters and Clams... ...... 0c. cece ence e eee cert tenet ree ene e ee eeeeeenes 492
JODStCLS cy cencseeea cet Seas eSSEy. Sores neRieEss eben ee eee e eee e eens 493
Guardian ad litem:
forinfant plaintiff coool ceases sea eieuciGait ae Manammun Gaus eee Les 16
defendants, oj.¢ cis Sides hae eeulos cane Mercier eae eMstes, DkeCa mae hee 16
Guardian, general :
power of, over money paid into court................08 seamen ale ee Meus ab FE Ge 209

Habeas corpus:
to bring up witness to testify............... ee eens eNale sca saeaes Soe saneeets 821-822
Habitual drunkard. (See Liquors.)

Hawkers and peddlers: :
proceedings against.... 6... . cece nce e wees iuAtea Gagne ea ge ee es we ES 494
Health: Page.
public, duty of justice as to... . ee cece cece eens Ws Hosta Wilow odd baipeawearyelece AVB
“Hereafter”: “Heretofore”:
OTN G Ga it a soaszey ach ch ooeas ae atancosneveeston ta akc Sy muatiastone Antero Davee. nan danas Abvbao.dhesasshare sweet: 359
Highway tax:
penalty for not paying, how collected....... sheiniglantacnsievearecese ois ieiaio oblige nite ovale ocnieiar 430
Highway:
penalty for obstructing. .............22.065 pisses a aigisieieralary ha Hepewacpe seas 431
encroachment upon, by fences............0.0 see eee a tsi g nS giaieew sisiaiais ereimieleia 431-435
swinging gates on, regulations as to.......... Sofas Sine ths2 teeta ee enee o/sjnbiai See ene 434
damages for laying out, etc., how assessed......... err rr tre rr 435-441
Holiday :
‘‘public”, when excluded ......... Sinwltilsbyeadidisuiats wile d's eran ale Sinlatensin bee tates 210, 211
Gefnedes esos ssa shee gin va mio eress aed isos jiaisioarmietniewarecenareea 358

Husband. (See Liquor.)

Husband and wife (See Liquor):

when witness for or against each Other... ........ ccc ccc cece ewer eeesereeeeeeee 215
when cannot be withers wisscccuscemeni Visiwnesierieatieroreersecsewensnens 216

  

Idiot:
not included in “lunatic”. ............02 ceeeeeee eke F5, Falee 34 Meee si Paes oor. 898
Idiot, lunatic, ete.: : :
effect of insanity on limitation..............cc ec ee cere ence seasaceres eons LBL, 182
Imprisonment (See EXECUTION AGAINST THE PERSON):
POP NCOMUCIN PG sit cses aySisis ces y se Se avene she “8 Ay: Bs SSR ARNE siestsRacsests 8-9, 57, 66
iSCHaT eG: PROM 4.254652 ces dager aoieu oiara eA einer OR OS BE HEGRE E85 76, 172, 487
on execution for Woman’s Services ........ 6. cece ee cee ee eee cence eee ee eee 145
for non-payment of money due on contract... ... 6... ccc et eee rene eens 160
effect on limitation, ... 6... e cece cee ee eee c eee e ence ee cnces cnsietavater eamnsisiatibs 181, 182
Indorsement. (See Summons; ExEcuUTION.)
Infant :
guardian ad litem for....... 1... cece cece cece cece cede et enes 16
effect of infancy on limitation................... 182
right of, to bring action .............0004. one 200
examined by court, to test capacity... 12. cece eee eee eee eee stbieatal vist aigsieNwiaree eee
cannot be juror ....... .......6... s srstshaatatie nee wage heete Siealeneee ene wale ese es 246
Informer:
common, action by, for penalty, etc..........6..-.. eee Seas tae wale eats 294-296
Injunction :
against suing, etc., effect on limitation .............. 00. e eee e eee eee Cee ecw ROR 187
who not compelled to give security for... ...... cee cece eee cee ee cones +. 321
In SUMMALy procecdiN7s secu do cescevewsviessae se taed seers Neale Sees ERS Melee ee 845
Injury:
action for, before justice. (See ACTION)............- Pewee Bwatonard a slereabzere 3
in N.Y, Gistrict: coUPt: sige: dae op sie stare sia tis e'eisiecerecere sendarseies aus . 141
in Albany Bnd Troy: sis sa-siecain spas aieievacaians sais’ spo siv wisi sieuns sia sisrersieieisinreoe ws 147
“persona, defined «65.50.35 ushers sass giana eisveuigyermp eialaelceveierhareie-s Sspachs ailoiaisssiehar 357
“Injury to property”:
GeANEd ne cedecsee see as sarees apes etee sees ReelSossees ses $56 dein esiee cases: OOF
Innkeeper:
justice when... 2.2.2... cece cece cnet eee eeenees sinatanersteecater® wee eeeeeeceeoeees 6
lien of, foreclosure (See ACTION TO, CUG)) sn ohieticse teeRe hears seas sees we eS! 285, 467

Insolvency :
ground for summary proceedings. ......-.seecseesoeessccssceecvcsces ereenss B04

600
INDEX.

 

 

 

Interest : Page.
disqualifies judge ....... au slalvaiee due eateititeted vn ee (ebsagesanaenrs Miles Gysvoeaetstees 161
does not disqualify witness... 0.0... cee cee cece ee eee ee PC 215
judgment to bear.......... ade aise ase Re eV "ORES TS ES eh cB osc 5c Varna a at entastn cradle 256

Interpreter:
in Brooklyn.............. seats ees eSia gical hey abana ees lade aenaniueeass oe 122, 123

Irregularities. (See AMENDMENT.)

Issue of law. (See DEMURRER.)

Issues (See JoINDER):
after answer'of title . 00s saex swasacseae vee ass sav enees ea ret Aa eee bine sat 48

Jail:
service of papers on person in ............006 Sle seleiarasave.s St aqare siguhetebia siemens see, 220

Jail liberties :
who not entitled to... 2.2... ccc e ee ee eee eee 145

Jailer: ;
duty of, on imprisonment of judgment debtor , 145
when to discharge such prisoner .............06 487
penalty for not discharging him. ............. cece ee ee eee econ V7

Joinder :
of isstie; action commenced by ss i saciwiecad enews ecavees ve eae ee eaeeees eee 10

{iM TOD. s ick scionenteenss see sea one tea bes RST e Care Se Re TET A Cas 40
IN SUMMATY PLrOoceeCINGS cscs sw oes seeders GELS TES EA RSET SORE ES SeRe 334
in mechanics’ lien proceedings... ........... 00.05 cee ee cece enone ed eece 453
in replevin . 1.6.6... cece eee cece eee eee e eee eee we kiinues erseee 272
in action against transportation COMPANY’ Sic tst2scesete hese, sie eee he ses veseee 816
of actions. (See CAUSE OF ACTION.)
of parties. (See PaRTIzs.)

Joint debtors:
judgment against, when all not served ..............0... ee reiterdevinnweete: Ty S812
effect of such judgment,..........0.. cee cece ee eee stows agrdistd eeu ogerrrah ava 313
execution thereon ; indorsement ........... ccc cece cece ence ee ee eee eetaes 71, 313
execution against person and property of, how enforced....... Be a seesesiseeerers eAeaeag 313
such judgment, how docketed ; effect of docketing ................000-005 71, 314
action to charge judgment upon property of defendants not personally sum-

moned ; complaint in such action ........... 0.00 c cece ec ecee eee eee 71, 3814
may compound separately with creditor............... 315
mode of compounding ; effect of release 315
satisfaction of judgment thereby.......... 0c. secs cece cece eee ene teenies vee. 816
rights of, not released, not affected by composition......... ......... se ccosetbiaco tiara 316
action against, engaged in transporting passengers or property ..............00 316
when partner not sued remains liable... ...... cee cece cee cet eee eee eens 317
certain provisions concerning, apply only after September 1, 1880 .............. 862

Joint-stock association. (See ASSOCIATION.)

Judge:

WHET NOL TO CE sister “a, ceeceeriacaie ras siavavs 6 were? aha vaoie uate Wawra vesiate al alethde te ge 4 dbigiene bos re Bae 161
Not to be interested In COSTS esc eicscs vin a ccie eco 04 8: 4ie Gin 60. Sie wlais'dletcing rere erie wle wena vae 161, 162
partners or clerk of, when not to practice....... Phi ak ee dies oles oa a wideeieaw 162, 163
Nob to take £668 s 2 aucsds)- aVceeiguessce anes coesees Nepal Ssiaegeeeicty idoeameenees 163
disability in special proceedings. .........- ec eee ee cent ence eee cee tee teens 163
penalty for illegally allowing attorneys to practice in Brooklyn... ............- 165
May take Oaths; Ctevccssvesuvased ca aes Ma Unratnss Wher eds geeeuuMe eee Hime cae Ss 220
defined ... cw.scnesmenear senders cs ee ee eo Ce ere 356
Judgment:
ACHION ON + ssi wesw asa ewes ose wees she ais ainieyeilecsunceretseiale goers 4, 71, 184, 175, 187, 299
of nonsuit after arrest ........ cee eee eee eee aspiate aielag a sisiasite slaileeeanualseuie eee , 24
when attachment not personally eI gellvevaas eesranuichuenuceueuctnnnatunte cons 83
in-action for chattels. ccc. weewvyok suey e eee s 644490 54 MENS Ne ERR OE ASS 88, 89, 283
OU COUNLENCLAING 2a ices e et eees Me ke RIS ei aa hee as he SEES ewe eek eee ee 45
when accounts exceed $400.......... SEN Rete sacs eeeaeain APOE FH Vee Seas 46

[76] | 601
 
 

   

 

 

Judgment (Continued) : Page.
of discontinuance... ...... 0.0... cece eee e erence ee oe se cela oa oPalavaavaia ds 46, 47, 49, 491
APANSt CELUI OS WATERS... ccawenieine cowwewen wed auraien swine niece em siesy emai ore dase 56
MDAC CLA ES: ccsva aussie Guctes etuayne taiens oe seevesovtana ghelinde paticla Gentiva ane bidsaaa lad wllala clammuaatavasenasanas 60, 450
OL DONSULE j-2s0cmw ds asera ames ae Syahaiigud coined syle Guevaly adevata- aiscavo/aueagakenane 238,24, 68
upon verdict, etc............ tecipGeteudckah Oyhea sateen nls daira ery oyteud, vopalap saesaurneaurebaatex Spaietetons 68
WHEN TO: 6) TONGS PE sco dpwitvor alsin are crore ean sce’bp ng lncay yvavn se alisiste shes cnyesds Seeusaasrlabie» 69
upon remitting part of verdict............ cece cece cece eee ete neeee aepaapetne 69
transcript of. (See TRANSCRIPT) ........ 0. cece ec cece cece eee eee 69, 70, 72, 454, 463
AGAIN JOlNt AEDES... ccceccerercneee qe ew sus wieienie Carp sier eens lel eee de 71, 812-814
docketing in clerk’s office.......... sibiauy dee ndusadotnavanrati ls NakeGre aawdrngewr miasine hare i

TDC BNOCHET:COULLY. oct. seiiaid aiteiane ca tysmne ror so tne stl oce Svinte, nla Wibnal & Veae za Oat aie 72
AP PSA CROM: se eceigiaraniaivrarervesceeieisa eee a ae Doce oray SoMa ASO EOEDaGG, eeu 80
in Brooklyn, on-serving complaintsic05 se vocsemcn cc scmiene sete twwssaeaess es 123
certificate of, in docket-book, deposited with clerk.............. 000.0 eee eee ee 132
action on, when costs not recoverable ......... 00 ce ccc ce ee eet eee ee eennee 134
PLOOE OL) vies cicie siacast: ae aie ena iecele aa ela a Bea PUES MNEs MEN A TRE AR OMAN. Warde keen caece 184
confession of. (See CONFESSION.)
no arrest Tor MOMs pPAYIMNENb. srcemishsrss Dares Ayvag deste gaia v Tory wads srgritcs Parlay dar arssapagudes 160
presumption of: paymentOl . isc ces vseges say ensig ss wa sdes Bee biel ae Tiles 173, 174
limitation: of: actionsODNs gy irawiaeind: ineh ede ae weste Ysa ts Ohba awe Gee + Sah ie Bts 175, 187
on counterclaim in action by or against executors, etC ...... cece cece cee eee 203
where ‘party idies before. Verdicts. 0sscidnuu signs paisa teidahs pureiuw wale awe amie oe 210
against: Married WoMaD 4.0656 hea siewuuulenesaoweaaaa tes bieiledad tales aaWia aes 256
INteTesl OD ice duieairs oiadieisineie aeiead asics sua atrdawsigetel anata Gignneiag hee seis dalaiie ethers 256
SHO UNMER i 4 monwadiagin deus sind omsemsalenls Aba Gane. sekiacuiaale cosine tee 6 75, 259
in action to foreclose chattel lien... 02.0.0... cece eee cee ce eee teen ete eneeeee 287
against executor, etc., how enforced ... 0.1... . ese ccc ce ee eee eee cent eer eeees 292
when assignable: <oiis. cere s ede ceee se eee ne eee Neth e seme oe Kee aa Rese eaies a dates 299
reversal of, effect on assignment ..... 16... 6 cece eee ee eee ee cee eee e eee ee eee
ACHON UPONs siicindaenncwad eked eeu Mee dewa ta vey eee cenisage mas eed wer anqwe ness
action to charge joint debtors not served
for costs against people. ......... 6... cece eee eee eee
defined essya pe neiueey ocesee ees aeeRS Ceeee Oy OK EV EER Re ee eda EE NSOS Veneers . 3858
application of provisions, time Of. ...... 0... cece cee eee ence cee ence enee 362
after division of county's. ¢ sci ssw sxe 9 Kan awed oes nes Haar i Had eds Ke QONG we 401

Judgment creditor:
action by, against joint debtor not served......... cc. cee eee cece e nee 71, 314
EARNED ica eee ages Bk Shain PP MAIS TOKE SSRN DE ade tN ceca 357

“Judgment creditor’s action : ”’

SHS 5355s. ci adie atin Gece ai ecto NO lcs A caeer a cecal OS ops uans ape AS iy sala hoarse (eeaen ores oe. 858

Judgment debtor :
dischargefrom; artestcnncswsasiess tisk Vederske ceeu sees asd aT SES Meee eee 76, 77

Judgment-roll :
on appeal...... Setunsiuns PENG Rh OAR Ae Gee See oe R 86

Jurisdiction (See JusTicE OF THE PEACE):
of justice, must be specially conferred... 2... 0... ccc cee eee renee ee cee nee 3

PONeral CIVIL cas auie eh tata dad avs oe aleraaie S danloawlaonwaneaaeuan 3, 896, 399
MOUELIN, COTTAM CASES... vie: alancetusrsiaiionsa-aiace eeudn See sek oneaia wie ieaea widen 5, 399
CONLESBLON OL. JABS os de savere ie sesh sun destin Miuonvdngr oder sriota natin uel snemn aie 6
in actions by and against officers, executors, CtC.......... cece ee eee eee 6
tavern-keepers disqualified... 2.0.0... ccc n cece teen eees i 6
member of the legislature... 2... 2... eee cc ce cece eect ee eeeee ee 6
general powers of justice.... 1... Lecce cece eee 7
in what town action to be brought
to punish for criminal contempt. ...... 6.6... cee cece eee eee eee ee
not affected by defendant’s discharge from arrest...........e.ecee eens 23
vacating attachment....... 0.0... cc cae e eee ence eneees 83
in, Brook yy can scdisee aroha Raa ee eee sine es Homa Te 119
Of News York: Cistrict COURS Gy cusieeisiadaioneh aor Ws ois vacess siesgisnasoveu wataeietevew “avelenela 140, 141
of Albany and Troy courts.... cc sscee eee ee ee rene ete enn cece: a Gayarsne 140,146, 147
of municipal court of Rochester, .....dccsec ced ewes aieegeip ue de cae Oe OS 148
and powers of courts preserved. ... 6... ee ee eee ence eect n eee cette eres aces 159
of courts, etc., on Sunday or town-meeting day ...........0 . ee eee eee SEG Eans 160, 382

602
INDEX.
Jurisdiction (Continued) : Page.
of justice, to foreclose lien on chattel..............66 cee cece cece e eee eee 285, 286
under village incorporation act. 1.0.0.6... 0. ove e eee cece eee eee 882, 383
Civil CAMA Pe Ali. viata s MOU Nba Dae wade bene Reena sent eoe 883
taking bonds, P6strictiOna.. ois ve eee sad see cece eran eeecneeaseaees 384
Of PolleS:jUStiCe, TH. VIMAGES o.oo sewer qidce wid a suce-wie tears’ ogterew'atdteaieraue allgecerensncemnys 385
in action by town for penalty........... URNA tec cee eee Eee ws sewales eas KOR HES 399

Jurors, (See Jury; TRIAL Jurors.)
Jury (See TRIAL JURORS) :

discharged: On Sundays.icsi.co su waeerieu seas eaeenesayeeepadeaperduaines see8 160, 382
not to be questioned or liable for verdict...... 2... ccc cece ec ccc eee eee e ence 203
‘penalty for. taking pitts, visi dateghunsdeage se Saceneeenes4 eee ee ink Sr SReS 253
embracery, ‘penalty: £0F ws sew aieadaedincmosie canes vhs ENOMSEYse4a SRE, SEAR a 253
neglect to attend, in special proceeding, by juror or sheriff................. 234-255
term, “trial jury’, defined ...cqetacmined see aed C288 o sb 404S3E6 oee a eek anew oun’ 358
trial by. (See TRIAL.)

to determine encroachments upon highways............. eee eee eee eee es 432-433
to. assess highway damages... 2. cis cciscwuiewses soaanwdtee es s¥cedeuae es 437, 440

Justice of the peace:
jurisdiction of. (See JURISDICTION.)

 

application of provisions to, limited......... 0.0... e ce eee ee cee eee eens 127
mandates, HOW ASsied: DY. sca sak sarewedistios Lam AT ERE ARR sreeea a hak ke vee He 128
HOt tO DAY Clas: LO SWSs hse: seseste Persaadaaiasa navies auieelee see Raves Ree eR RR 128
COCK CE DOOKK OF a acaiiesesarsne ois esd 5 ga haw Waters des ale gig mc BE Nea wibeaiminG: eiesesh eugene 95, 129-181
ALN GS PaPEISigx- dae.» aisa's geisigagedianhgpersde stains aguas We Wig: Sa Gis SEED Goes 181]
deposit of books and papers with town clerk, etc............ 0... eee eee eee 181, 182
to furnish.copies Of papersiiss sei. sseiwee das Shoe Vee Kee RES S Deere Heese ad 133
transfer of action to-another’ 04 seas ose.s Sgsarsaelonaes KUEN EReEe Exes Ae 33-134
Material Witness. 6.60665 vss seed wee wecrwnedoeeee's rasidie tana wate twa dots eeg was 183
penalty for not paying OVer MODEY:o6. 66s vasa cecieoseesadees 6 LSD Ue eee ORO ee 134
deputing person tO STV POCeSS 2.2... cece ce eee eee ence eee eee es cab eee beens 135
when not to sit at sessions 162
May takS Oaths, ClO newness vadess oes Cee See NEES s Seat e SET Ae, Semmes 220
deposition taken by, to be used without the State.............. 0... cee eee 229
docket-book, or transcript, when evidence. .............. 0... ee eee 182, 185, 236, 237
proof of proceedings Delores. oc sjcoiiae asian eisaieed ME Owed aeccte bee HF w Sal wmcdnreinns 237
Of WAJOMING State) nccawrew iv icd dee dees ces 241, 242
habeas corpus to testify before... 1.0... ec cece eee ccc e eee e en teenies 822
application to, in summary proceedings. ...... 0... cece cee eee eee eee eee 827
MEF FOr, AMCLUG ED s, sescacsy casesocure ayuancn Fe baes oii ahh lich aed 6 bs Soayeuat Que Med e-¥ ach So vald Iyvaysts aca unseusnegh-eye 356
adjournments before. (See ADJOURNMENTS. )
compelling attendance of witness. (See WITNEsS.)
trial before. (See TRIAL.)
judgment before. (See JUDGMENT.)
executions by. (See EXECUTION.)
appeals from. (See APPEAL.)
pleadings before. (See PLEADINGS, etc.)
costs and fees of. (See Costs; FEEs.)
power of, over strays. (See STRAYS.)
in Brooklyn. (See BROOKLYN.)
age restriction: Of. 2.64. a054 sana 4 cithanesub Wage see Ha S848 Hos 4 Seeds see Se ASEH 367
TOLM Of soc wes cA UN SE eee dss eee RS Reese een satya teedste ayes eeeee 367
election and removal of, to be regulated by law....... 0.0.0... cee eee eee ee eee 367
term and powers of, in cities, to be regulated by law.............. 0.0.2 ee ee eee 367
TEGS-Testhicted : LOsametnkons syetay ame coe teeteeds sediicae tes gee weed DmeeR wae dee 368
BJU] OM CEP s 20%: oss das hats SAR icin nea ada ow erie Me ane arene esd ca Seen. sigs RIAL 368
how elected Gnd classifieds «sicsnie seein cena dds used s Osea ein baa en ei mucdiene.s ue 368-373
ANCE W LOWNSs a eneiee! Giedis cus ceaetavdieciide’ pateangee MaRS gph d Rua RRR eS 368-370
TOsid GH CO OL os, ced dts icesce isha ate wicca t aoue: <u gte itaata ldo. 8 Sooke, Bis dng eid aud avery NE 374
Qa liMSAtONS. OL. ¢ccsae alire esis easterassinarsenue Geecdcocertin Astle ara armas wR disae 6G, 161-168, 3874
Oath an PONG. 5.r.sce desi evevnssiencserede: tsauese.n. ca. bvee Wea ale ka soak wearaias lovacusll wpe a ACN (asm lOned 374-379
TOSIPNATOD, OF cis aeeationagdr eave siond sessing W ieinte Va OS Owed 4 eb GE Taree WN Oa eee wes 379
removal OLfe2 2154 sc. honierGae Mesnchin sda sanw sete nue wanes wbmewtintaeMRte 379
vacancy in: OMG Of, HOW CLEAted sic secs aiceiee aie sie Hace eg ch, clon ghee Wianaig Siar See srt 380
Owflled oo a .nugsiensy ane saccades Se Uwe sauia ew Ghoy 381

603
INDEX.

 

  

  

Justice of the peace (Continued): Page.
not to hold court on Sunday or town meeting day, except, etc.......... 160, 882, 389
JUTISCICHION OF Ii VILLAGES. oo; is,cuwiitneriardeatreduainacnogy.r sc San nWaewoasimaneac

under civil GATATO: AC bo susesgiecsyie d.gud ab si0a sbi wD oven 4 Giese Beata chat
taking bonds, restriction as fe ch ater h:s a bt aaa eee estaieanenenanamenanaeiien
process not to be issued by, when ...... 1... cece eee cece ee eet eens
detention Of. Gainall DOaESs . aact.ci.esnipehicavne tthe Waseda eran ac penesnn weeds amantanaliee

Cana] HOOKS, BtCh. ceiaies tnadd aecec:c dee seus oS SST aoe

jurisdiction, in action for penalty....... 00... cece eee eee ee ete en ee enene

by or against town or county

CULY OF, AG TOWN MUSECIN Gn cgace area die Wala wmicanreineeswatina annie detnanetnenirrantsds la aieislane

filling vacancy in town Offices, by........ 0... cece eee eee eee e ee

removing constable from CS Gl nd aie nae

subpoena by, on application toremove sheriff, etc.......... 0.0 cece c eee ee eee ioe

duty of, asa town auditor. (See BOARD OF AUDITORS.) .........0.00ee eee 405-421

has powers of commissioner of deeds ...........0 .o cece cece eee cece eee teen ees 421

acknowledgments by......... Pore Ea Lapis Sen Brae eS ee RUG ST TSS Hida kG Ae gS 422

AS COTODER siaviesans 2, 2s wicicexstcpainesistse Dede eta arnica ionic w srepNavany dis end galcne gt auton ope oseeaa alata 422

vroceeding to collect penalty for non-payment of highway tax................. 430

before, for obstructing highway ........... 0. eee e eee eee eens 431-435
encroaching on highway....... 02... ese cece ee eee ee 431-435
maintaining gates on highways....................... 484-435
assessment of highway damages..................... 435-441

to foreclose mechanics’ lien (See MEcHANICS, AND Lagor-
ERS? JUVE Vsotiancaase ued tata ies lshsee eat glares be-atcterg 447-474
under game laws (See GAME LAWS).............00eee ee eee 474-493
to cause persons having infectious diseases to be removed.... ...........---0- 493
proceedings before, as to hawkers and peddlers......... 2. cece ec cc ee cece ee ceeee 494
absconding parents........ (iS eA at ees oe ka ean 495

relief tof, poor’ by:.. cians: sae ate ge wiaren ye sieeve a isiidata a eoeemrace mature emis ya sts 496-498

may forbid sale of liquors... 2... .cee rece ccec eee ecenecones spicata tafe paeesaeaie tes 498

duty as to excise COMMISSIONCT....... 66. cee cece eee cette eee ee cee ee ee bene 500
Justices’ courts (See JURISDICTION) :

of Albany and Troy. (See ALBANY, etc.; TROY, etc.)

NOL COUTLB.OF NECOPG sy. wate heey GS se ERO LN SMO SO ARN eem Gg eaw a nee dee aes uke 159
Justification (See Bai TipaRnanENdy Siilecleeahatate eee talpatncualy wee eam vlca sarin 207
Kings county (See BRooxkLyYn) :

SLLOTNEY SAD ois. 3).55 shies ee eis Aes Sea aians ee le tea d dee Kee aU e cess Maen sees eee 165

SUPPOrtiok prisoners: Wie i+ sic ste ae cities, Sie hes ed de iece WL T CuRIC TES Se Reo AS 168

trialjurors, dies d svar eia ean iak ee adee et aie bya chests wea eee Scee estes eae's 252

gamerconsta bles $s Koss Ges aie sae Dagan sls.’ 1S MG Law E Pee Sie ReMi 489
Landlord and tenant (See SumMARY PROCEEDINGS) :

lease forfeited by sale of liquotiess isc tevreiecance oad twee rome See sa se eeee ees 384

notice to tenant at will, ete., to quit... 66. Cece e cece nec eee e wenn ne 442

how served i ssi sayeeu saga sxe pe wow sve wee 9 6 we Ce ws 442

rights of landlord thereupon..............e0000e 442

penalty for not vacating, after giving notice 442
tenant holding over..... ... ..... 443

remedy on lease for life................008. Be ss. 443

rents dependent on life of another.......... a 443

remedy of executors for arrears of rent........... 0 cece eee eee Seuee ekg TeR ese 443

executors, etc., of tenant forlife, ................ EER LERG TEES ERGaS WARS oe 443

assignee of lessor, Tights Of... .ccceeesscacses PLEGW Weed ew OEY CEE RREe 286s 444

lessee, rights Of...... .0..eeceeceeeees die sb Sa Mes ewes aaeses aus 444

lessee, rights Of. ..... 6... cece cece eee eee S04 Sanwa ERE Ecis cotiasaeeeralte ee 444

use and occupation, recovery for.............. 444

penalty for tenants not delivering notices 445

distress, for rent: abolished «....0 6 :e0% saad sede cesadwas shew Gdwes Series anes ereee 445

when tenant need not pay rent.............00. eles Sei hare yed s Se. $esheRS! emenies 446

‘when lease: VOI avin eooasce us: devsuay sees maak Sota Reet Oak eS 384, 446

illegal trade.........5-46 amen eenswewins ee ee Ok re cere 446
Laws repealed :

miscellaneous definitions aud rules of construction of Code............ 356, 3861-365

604
Laws repealed (Continued):
MOCHaNniCS; MEN si 2.5 2.0.0eoe sais Gods p andemne RA Wwe awa ede Ses Medea Gas eeGatbewe
PANES: f2 oan cedar ny hk Any
general repealing act, 1880

Lease. (See LANDLORD AND TENANT.)

Leave of court:
to sue bond to people.............. cA 4494 Re OA PaO EERE aw Es Ex SPREE S
to compromise action for penalty........ ccc eeeeee eee eee ene eeee

Levy. (See ATTACHMENT; EXECUTION.)
Libel:
justice has no jurisdiction of action of
id.: in N. Y. district court.............

id.: in Albany and Troy............. SR doMAeC aka Ma Rhea we nanEearediaad
COGN ie sco bd tace eed Meeks damental oetS Hee SRN RE See EAS Game DE als

Liberties of jail sce3 uns Seka noe ieee Mee is Ra eee 76,

Lien (See MEcHANICS’, etc., LIENS) :

OF CRECNUION 5 os canidsdepeena cia oa te ws vadedeeg Hin eee Gee nseeeeen Fa Sae aes
on chattel, foreclosure of (See ACTION TO, ETC.)....... 0:2 ee eee eee eee ee ee eee
Limitation :
of action against sheriff, on claim of chattel ........ 2. cece eee eee ees O83;
{oO Issue EXeCUblONs 225 /.0.5 344643 Wien ae esau edeerader send Herhays ess Re StSe a ES
of action for ‘seizing animals. wi .c0ecsccsecsctcugdesGeacee eds shee teeataseeaee
other than for recovery of real property. .......... ccc cece eee ee eee eee 178,
of action on judgment of court of record ........... 0.00.06 cee eee eee eee 173,
On sealed AMStLUMONG: os deiforitn eg ietinrncncibiGiremidanen He Rhy SEL Ss
for breach of simple contract. 0.2.6.6... ccc cece cece eee ee teen ete eene
for liability created, by statute....c.:c00 0c caucccuea ne te 2b peo oe eRe wae
FOF INIULY LO, PFOPSPLY sierenidseusaeasaunierwied deen eS oa divas e ced Saat ewgses
FOF PETSONAL WY WL Yes ye a5 ors sy siiezqueseneisuonsrelevers cies sisiete wae dan ed wee 175,
to recover a chattel............. Sidsd tesahehaauhaasade G tote tare Oca lpasld Byes beak Seep Pes
for relief on ground of fraud.......... 0. cece eee eee eee es
Pov establishia Will, sca nesinnew anieaa snares cae we Le eRe ae sow howueuEn
on judgment of court not of record ....... cece eee eee eee
against sheriff, etc., for non-payment of money collected..............-
against constable, except for an escape........ 0.0. cece eee eee teens
upon statute, for penalty, etc., given to party aggrieved, etc............
against an executor, administrator, receiver or trustee, etc.............
for libel, slander, assault and battery....... 0... cc eee eee eee eee
for false: imprisonMEentic.c...9:ne5s seis ca siaieecnsedine oaaeiurs ene ene EEA
upon statute, for forfeiture or penalty to the people................-.
against sherifl OF COrONe?s ciaisicadsveles po eeiggie eld gat sekuins Vas eek
TOR ESCAPE: oii i's alee did us eraiscais asian eieis swe uaa aete BENE a dig dane ee aoe Se Bae
when cause of action accrues on current ACCOUNt.... 2... eee eee ee cee ee eee
of action for penalty or forfeiture given to prosecutor...........ee cece ee eee eee
not hereinbefore provided for....... 0.0... cece eee eee eee cece eens
by people, same as of private actionS......... 6.000 cence eee e ete e ene
against non-resident, upon a demand barred by law of his residence....
effect of death without the State, of person liable, on............ cece eee eee ees
cause of action accruing between death and issuing of letters, etc...............
on bank notes, etc., against money Corporation. ....... 0... eee eee eee eee eens
against directors, etc., of banks, etc. ...... 0.0... cece eee cence cee teen et ne tees
acknowledgment or new promise must be in writing.............0 . ee eee eee eee
effect Of disability Obs an ands oe taassaewss auceamn a Ve sie eee SE DSR ES CRW SHEVA SS

 

action, when deemed commenced for purpose Of.......... 2... cece ee eee e ete
attempt to begin action, when deemed commencement................-+45- 183,
absence from State, excluded from time Of. 1.1... 0... 0. ccc eee eee aes
effectof death Of PersONs oaciescagd nenawaws sac wuueess see uece ented owen sada 185,
time of war deducted, in suits by aliens.............00 esse eee he oA AEA DaRAGs.
provision where judgment is reversed. ......... 06. cece eee eee eee teens
stay by injunction, etc., to be deducted. .......... 0... e eee cee eee eee sae:
certain actions by principal, for misconduct of agent, etc.............- cee eee ee
disability must exist when right accrues........... 00.0 ce ccc eee eee
if several disabilities, no limitation till all removed .............. 0.0.0 cee cee ee

 
INDEX.

Limitation (Continued) :

 

Page.
provision when action cannot be maintained without a demand. .......-.....4-. 188
in case of submission to arbitration.......... ...... esa vie Haiaieafsvese=s +. 189
where action is discontinued, etc., after answer..........-.eeeee eee ee 190
objection as to, how taken in pleading. .......... 0.0 eee c eee eee ee eee eee n ees 190
cases to which rules of limitation apply ; exceptions........... cece cece eecee- 190
word, “action”, includes special proceeding, CLC Lsiiuiveinrienean re Roy aeeeEraen 190
mode of computing Periods Ole #5 cass sees uses hes eeGesieeseen ee slesaueyee ys 191
of action to foreclose mechanic’s lien........... 0c cece tence eee e rene . 456, 466, 469
for penalty against hawker or peddler.................0.0000% peste d PRESAee s 495
Liquors:
civil damage act ....... cee cece eee ee eens : segues KUHMOE RAT ERE EER ET ELAS EOS 8 383
notice not to sell to husband, Die aiteles suka senaa arn Radniee "498, 499, 557
complaint for selling’ casi oa ieee bees 0s OSs Lata Ra eORLR TIDE RTT ION EES OwRIDD 499
board of excise..... 22... eee ee eee ee eee beeen e nee e eee Cte eee ence ener ee eee 500
Loss :
of docket-book, proof of judgment........... .... MiG kteE eee aes ama eee Sic 135
action on lost negotiable paper ............. Jone et Teese one eas 801, 302
Lunacy’:
COMED 5 sascis a Rune Gasencecaveenste sonia Sa.S Beare satiety haa Sere Se iaaw es eee ERR see 358
Lunatic:
justice a, effect on appeal.............. Sisindiviess Siaesaueietintere te auerssernielors sierestees seeeee 85
COBNIHOD Of iii ieee da cde Ne sen ee ees Biol vate wie Sraueys Bvaiseagisises-solosaas, sncsseroinusterping +. 858
Lost papers:
EVIDENCE: GE i. sored Saddeaainies deseo MPA RNEERRETS OTTERS wierd suerere seeeesees 200, 231, 302
Mail:
sheriff may return mandate by .,.... Se Saw eielelalsiane dle e’aln S'sia'e'e O Bieta ewes Sees exe 166
return of commission Dy...........seeeee cece ee eeeee 2 Ss Ri siedeewan Resale 59, 227
Malicious prosecution :
jurisdiction in action for........... selintende ate Susie hisielitis enlae kira wats deena wale 5
id., in N. Y. district court..............000e aigtaig shai aandta:la(yi ale: gud: eieve:'s eiadalersterateraelecese 141
id., in Albany and Troy....°............ pbigieceistctn’ Bae drareists yhocials eters gre Seay everea aes 146
Ce Hinde. anyesie ss rsig atoeta salves eislialy aa see Sieh Laewle dG MRSS A eeag ce abies woh eo caus. 357
Mandate (See Process; SERVICE): :
general requisites Of ....... 0. cee e eee e eee ween eee eee AX tee eee 128, 160
executed, by private person ....... ea iaaphere wanes an Siete iecoietea ire staiee 135, 390, 391
by constable..... 2... . cece eee cence groves shinee Saseceiginere’s wate ele era w siete 135
by Sheri fesse aww watts. cassie wie ommmiaalers Geiv eerste ie caley were 135, 167
form and requisites Of... ccccecrsieencies a¥ae See ee ce eee eee seen ew eeseeneee 160
defects in............ sh Giaty al ela BRIG w praig g HGR. « oil e UL Tea Sig ee wae ielars WS Se we WD Sae Noy 208
MeMNE visi wisisians img dgiele ey 54 Shag eee GRE S'S sae fa ealele oieaciseaee ese ns ek sees 356
application of certain provisions
‘not to be served on Sunday ..............4-
on Saturday.......... pets
on town meeting day ....... Megs eS Spee eeu end 388, 3889
service of, in N.Y. city... 0... cece eee eee cece eee ssoidie Fesetietle acne gdase ss 390, 391
Marriage:
6videnCO Of wp winks aa eaaaicensielanddladak aamntoee gaiee a eiee aiduee eee vaadewignsigiats 233
Marshal :
in N.Y. city to serve: procesS sini: semaines eas aaee oeuy sees aeldaw eu seats 390, 391
Married woman (See WoMAN) :
action by and against, how brought. .........00. ee ceca cece eee eee eee ee eeeens 196
WHEN, WITHERS). viii aost Tas eeeee tes Mee Es TERS SASS RAEN o MES EES 215,. 216
judgment against, how enforced ......... 0. secs cent cence teeter ee nee ee teenee 256
CXEMPUONPOL oreo rons nels ehse CAR CER PSs ae TON l eG sods Soe SERRE E ES sD 262
mechanics’ lien against property Ofsss.o¢250009 54095594 Mise etna dere amedmaes 459
transfer of claim to, by husband ...........00. 0 cece eee ecco ence eneee GIN. Ys. 178

606
Material witness :
PUSHICOA sic hena aa rel eee age a rauenee Geko aways aoRe se Hens mane nlaweeorns 133

Mechanic. (See AcTIoN TO FoRECLOSE A LIEN.)
Mechanics’ and laborers’ liens:

 

on houses, etc., how acquired ........ cece ce eect eee tee eee eet teneeeenes 448
MOUCO: OT as Seed salsca eos Aces pais aus wo tesgaiuoniee need Sh Rake atnag doa lett GA Aa ony duaeiataneer 448
POAUCCHEO sc cton tuners voto eGo NR ada Oh WORMRYR OR Uae DORDAA MATER EL Abia eS aT 448
not affected by collusive payment ......... 0... cece cece ence nee eee ten e ees 449
NHOtiCS Of, CONtENtS OL c24 areas amc smrcaaste dw Orns Baa mEN THE Awa WES Biase svelnarienE eA 449
when dnd how fled )c51caes cseaenwraemeyadgzies gone wlan «arlene 449
LES LOR MIN occ seers Seen ue egies Sipe Sees tatg $a. wre arin cSedg ha eae inte NN A SHAE 449
evidence: to: establish: jj. saacsiesiarss's | xo isin es pee ee ab wre ip gid slalaraicenigrecglonerdcyap wamnetaneds 450
ACO: In. SUPTeMe: COUN). tick os ices bi sle gale uence sees s lee nave medio meee 450
pleadings’ therein: scc0c0 seis ee ee sa oP aae seanictesosaewedenae ees oe 451
action: In-jJUStICE’S COUT re iadeyeevs Seed Cederer eras samEswEsasedadas  weaanigets 451
notice TOappear’ oi vsscssearorertaentassecsiasee or eget wise ease REGO 451
service: Of NOLCE ss sdsvadenee ce edawk steers be getses estes saeeetease 451
bill of particulars. iii. sccavsicsassssssisemiaiedunedowarseeee ree ras 452
proceedings) on défault, s...0244ss202c55654 5454 iaeneitaosascawedees 452
JUDGMENT thereon issadcsc os cts sc00s4es e.0408 aad MeecRMReEaS 452
Oxecu tion PhereoM iso -seis os so3 2 Shee EAST Ge ROMO ORRR eee ome 452
PMS WV OV) NN oes eee aysile 1h soaaninte hie se: pesibe bya dbvancuceces CavetieraastROh cual uth Bia oss ies RES 453
defendant's: bill of particoularg..c.: <i ccs neseen cakes soewe se tov he hued 453
issues, how formed in justice’s court ..... 0... cece eee eee eee ee en eee eens 453
AVIBL IN COURt OL TECORC riers sa 5.v dase o:¥s Ch arash w 28. avestdi Ende Baal axsranmrearaceugaunrsuemens OF arle at 453
TANSCLIP Eby [USL CEs. o.asexs.cys. ceccaeseszncvnr ss cauncey wach wuratarceniaks Greraseluearuess dee Fat ee Baa Oe 454
TEterence, Of ACO sic case tans cece nha ne eee Shane Oh. pe GieRa Male meiawminis eeaed ® 454
COSts. ANG diShUrseMeNts 25. sacs eis pace nawanamerindinnee ema n Tul easeaied Eee 455
transcript issued by county clerk... 0.2.0... eee eee eee nee eee 455
HenjOf jNdSMEDE: i .0541 ain eene enema e hwnd, KIA TE AMEM ARNE Lo ESR aS 455
Gischares Of Weticcccis ik eaten secs aaa 4 Meee enone Regattas decd ewes 455
bringing invother claimants. wc. ce cc cccicine ce mdaw ene dwidien wdwe-egins wr Maid chee 455
notice to claimants to present claims ............ ce eee ee eee cece eee teens 455, 456
SOOM. cusetkee: Wek: Kareies Soh hemiaing: BA aan ge Yoyo Mav ete at oer ceteenae 456
stay Of proceed mgs sc oss 9 548 oes eae 9 bs Sie sistas 8a G Paseo emy>n ean PE SEAN ARR 456
jJudgment.on:¢laimg) sc: sscaple dae seesaeriigaislaaieuieaanm germans oem gee ama te 456
continuancerof Wiens. agis ccs Ses saine aay aecsua alomeeie asia seals hisareiies glee es ese 456
judement, how enforced cig oe 3 iites pe ean eidee dele sens eee viel Vawsldie aa Saeme-oe 457
APPCAlis cisva's vais wus India. aelaoagensomaae Gsleedabbass bina edea, Gabtieae yd maa sees 457
judgment for deficiency. 5. ass cseidcer wind yee iene daeknele hae Beecow spe ese ses 457
priority in. paymentof liens... sos. cc's adresses sage care eavgaGesaee samee ee es al 457
lien; how- discharged. . sc... sec: wes Keasieee oCSe¥eee ee aiener eres geen pie neee eles 458
4D CHUB 2.5825 Sele eo RAS ERAGE MRR ROR eRe eReG eed oes Made EGS eM ete ee esea es 459
ON: OUL Welles CLC: oss sins oie 3 Xed AS, AME ROT SPERM EROS IG Pa OE TS see eae roses 459-465
of railroad employees, who entitled to lien.... 1... 0... c cee cee cece eee eee 465
notice to be filed; fee therefor ..............02 2. cece ee eee 465
evidence must be given. ..........0.05 cone ce eens eens 466
action, when and by whom brought...............02 20005 466
Continuance Of lien. : cock ceesce ee cece taes Wasaea ened - 466
Priority of PayMIeNl Of. 4 ie ieewiiweriee ses e¥as esas neanees ok 466
GISCHAT ES: Of ascii. he ane Aaereauee tanto a da oad wade hese RES 466
stockholdér’s: Viability... .6...ce005 048 Secaace aeeedswe es She 467
for public work, who entitled to... 0... ccc cece cee eee eee ee enter e ees 467
BMOUNG- OF sea ces Geode seedse eed w athe 5 eis ayains as Genoa eieiettatene 468
Noticocf to be Hledec..c 4 .rcess seed sre bw aaa eavennd saree bnd eran 468
entry thereof.... .. Guigvalpeas antenna: craguaeebaniaaiannen, 468
Guration.of NMeDss: si ces (be oidekn et cat ov teoored osetia wie 469
action, when to be commenced.............. cece cece eee ee wees 469
When:.created ens civics is eros dg aid Saino ees Pee seoan daswoeee
action, where brought
defendants, who to be... ... 2... ce eee cee eee es
ANS WED ag sicvv odes goa 4s 584 5 we F Ree ae DREN ae aaess
JUG PIMEN tess tcc seen tees oe oe 5 ia ee e844 seas Adee eee
CXCCUION v5.25 58505046 se ese Dede RS RenNTeSeeeheeeebead aces
appeal geiicsccaedeg 5 Ceca ged ac ee. CEASE Se eee ge Sinn ees
priority of payment... 6. .c0:.04 tsa aiken eee iee orks Ge aes
consolidation of actions; COStS..... 6... eee cee ce eee eee eee 470
INDEX.

  

Mechanics’ and laborers’ liens (Continued): Page.
for public work, personal action for... 60... cece ee cece ee eet e eee tree eeees 470
discharge: Of iei...+ + seisasc sed j.ne Oe gcssees 4 yee ea oa bdegeeeses,. 84 470
“contractor” defined. ....... cc. cece eee e eee reer eres eeeeeeeee 470
Member (See StockHOLDER) :
OF JOBS MUTC: cos os. Gecee eo esennine vised aes ene srnmemas stm decaeneet se AFesae eee 6
of unincorporated association, action against................... Bites ave sea ehtye 805-307
Merger:
of civil and criminal actions..................20.005 peuae a ECE TS 1E6 FERS a eee les 296
Military :
to aid sheriff................ gatas ig eigen vor busin o's un lara caine ia ginialig'a tee gio g's whe adetaryata 167
OXOMPtiONS..AS tO. iiicc sanding case ud eda ped eesh yee gay ee eee ag eee ES ee 268, 388
Minute of conviction (See Forms, minute of conviction):
for Contempt) <casacke citewnapdta yas aces ae ie ESAS Yea bie Giese NENG SS ase 9
of defaulting witness..............6 0 cece eee ee eee eee $2 aces so Sais erhbe0 sees 56
of defaulting: Juror: 24x25 sc22csecetees es kGessteeesesaes sa eeaceas ees ieeseage 66
Misdemeanor :
justice not paying OVer MONEY... 1... LLL cece eee et ee eee eee e teen eeeaee 134
acting as attorney in New-York or Kings county............ ce eeeee cece eee eee 165
judge permitting it....... the Walaa g CG-15 aces te Seat VES FG AS oat ORR eee Besa Bee 165
refusal tovassist Gherifl.. 6c. adns oseeaacescdes hase a wikta cobs Cees eee wows Saale arene 167
officer refusing to search. 2. 0.0.2.0. fee cece eee eeee ‘ sales
for not delivering precept............. cece ee eee eens 333
officer receiving, etc., illegal fees................006 cee LR REE RES 852
punishment: fOr. scons wiass here eae sees eo ses wa ee aes cease ee Aveaguned uve . 859, 375, 512
justice acting without oath or bond........... G20 96-0 Nee any don yd pee hoees Mee 3875
Jurisdiction Of. ncswsisawies cee es ra ertnewmensesnces Sema Re G GUNG Ree 385-387
serving process on Saturday... 2.0... ee cece eee teen erence eee e ete e eee eencenes 388
under game law. (See Game Law.)
selling liquor vs.sewisans crn eeseteentwi seaweeds snlenswae teas RE 499
Misjoinder:
Provisions PelatING tO: soe. ceeesesacesi ods coder veseerens 42, 43, 195, 196, 208, 316
Misnomer:
waived, when ............. ticles tui ale ayain wp seed aaaiteinne aaa eaceleens st aaraie talinaiindaza™ langcotegateys 289
not available, when, 224232426 p00d55 bd 3 se sconlaase Tames Kedeie tee eremmuaneteatenae 291, 307
Mistake:
when disregarded .......... cs cece cece nese scene eee teeta sense eneeeeesnneeers . 208
Money. (See PayMENT INTO COURT.)
Motion:
to vacate order of arrest... 0... ccc cee teen cece meet enter e seen eee eerees 23
attachment .............000 Spaveales seeews see aaned eens 32
fof COMMIBBION... 05.24.0002 ees b ee cee ae es eee eres ene s iia esses gras iat lileas Glgaeiseini 58
Municipal court of Rochester ... ic ccceeeee seeeeneeseee teen ee eieee 148-149
Name:
defendant designated by fictitious........... be ise ew es ee eS Paki WUkee see 14
suing in another’s, etc., action for... ... se eee e eee ee eee eee e eee ees Noi ceans 296, 297
Negligence:
limitation of action fOr... 2... ec ccc cee eee ce eee eee eee ee ences a Siete aisinte siwlalios 177
Parks:
PTIVAtE 2. cece eee eee eee been e teen nee e es eee eee sie ewees Ges .ee «484

Negotiable paper. (See Bruis or Excuanak, etc.)
New matter. (See ANSWER.)
New trial. (See APPEAL.)

New-York city:
DLLOTNEYS ID... eee er eee eee er ee ee teres eet enaee ides os Se Gawe Noose eee else 165
608
INDEX.

New-York city (Continued) :

 

service of summons in actions against... 10... cece cee eee cee e reece eens

trial jMLOTSAN. «sce. yuan aceeedene eats MRNEGS SH 25400 Keele s.5i8'6

provisions relating to, how construed........... whee SoKeas

service of process In... .... 2... eee eee SSE WhS EON Rake Sele

action for penalty in... .... cece eee eee ee tvaaeues Merteve keds sAaese% 397, 398

New-York district courts:

not courts of record............. cee eee siya Wis caiaydin re Aver cstaue Gaavera tie. ah Gas as yetol ote

service of complaint in............... ee rewtei een Sisal erasalg behuavates atalSararesnis 137-18

action, how commenced 10 6. 6.05. aycwndysranicramupeereranees yhaase pews acenieaed 188

order ‘of arrest, attachment, requisition to replevy. sists Bas awERS svaysaupia sxsiwngesh Wierd 188

Title 6-Teal Property Aa cass gees oes: EaMa ie duls padeewleraelae Ges weed 139

APPOalSArOMe sso evi ionews dale! aise Sy eeises ieee Sha eS oe bs ule Lay eeES Sea ee: 140

jurisdiction. :..c.isenimgeeadevss Hes 29s vas ee bcouun Satis ats Saar eae Re 140-142

removal-of actions: LroMsijsicspisw sade cag poles Mie vane eae deb aGee ess be eeeanemareistsles 143

Order Of, ATResb iiss, Sarscnseaneusedatad sdeneies wed teh ae see B9 es 148, 144, 846, 3847

Undertakings Is piscwscciwwwrs Wau as saew CLA REO CTE CANE SERRE TE Res eee mee Os 144

judgments, executions ...5 2s ccveoies ahs aoedion esas aed cems Sues O¥eE OES 145
in favor of working WOMEN... cc cseeeees Meghesseaudeats <iesee es 145

habeas COrpusi we cesses. SAcueadpluaies Hasse Mea see e eee ee Goes oe ERASE A

  

SUMMAFY PIOCEOMINBSs.sc0d cased s cia Ho eS RTE STE TC co TaE TEER SAG ETE ORN
process of, how served elosseecoG eons Sespaes mioterattie

 

Non-joinder :
provisions relating to ....... 6.66. ce cece ee eee ences

Non-resident :
arrest of...... agaiaeaten cain dies slistatenn cle siete alate oa Movers Shea hale mulso Se hemes ee 20
attachMent Against... 1... .. cece eee cette eee ee ee eee ee tenes sacar 27
limitation of action against.............-.200 Omi ee TER erase ANE 179, 180

Nonsuit. (See JUDGMENT.)

Notary public:

MAE Y CEU GOALS ia. 'saceais coi suecg cera dod Sve ao, Sass. ns ecsia-a6:0peyaidsteep ee Gira a acauanasd anand Seabicuaaesuyorntagnnai 220
evidence of protest DY... ... cc eee ee cece ene eee eee tee es eeeeteeeare 231, 232

Notice (See Forms, notice) :
of defendant's arrests i's ssi e055 ccd se decks vinaes 244 Fee Mae G ails Basan eahe sens
tovacate: ordersof arrests ..4:<. je ees < bend oon se diese ews Osten Sop wees Mae RIOD sda tin

attachment.............

of application for commission eats
penalty for taking, dOWD 3.0 ses sees dss Hiss imor ewer te eXteetaereeoweseer
OL SUDSEPUNOD .c.su0 aoe tes t244 ose eats S WATS ns BAe Bae Brees eactuleniays
publication of, time how computed
CO, QUI ii, cccsavercusielcnotsnraiiea ire demas stag tea ee ROE ERG ae RAT ata eee ee eS ¢
of mechanics’ lien. (See MECHANICS’ ETC., LIENS.)
to produce paper..,..,..+.-+ Fie Beh aaey ws ye fas cites Pep etocsy elare pana btu as tae eager 540

“Now”:
LOLI CGS rai aac tc haina 20g ara an vena VOOR Sta ups Nao apacapee WG Mauetanene eiauic eines Coeds MERE eee LESS 359

   

Oaths and affirmations:

OL FULOR. gs 'siss casas ene Gen et ALATA NS Aw TORR tAG PROT eee eee owt eye haa 63
Ol: Wat OBS irse'se.ces- 5 arse sie ets 5.a wiles iste cease ele ia ewtted cho miosues Saniiea accel smaaduen adie’ 63
OF CONKADO ns cscceweeccntes hs ve reeees Kigag was ols aiaieistacainmrguaier alana Heian 65
whor¢an tak@y y..¢x esses esis atord aay Saw OMS Game een aA ed caw aa HoE4 OREN 220

out of the States cues cisccsensin chia alain saier Sih WS sR a oes 221
mode of administering. ........... 02. e eee cece eee aiesieae ein wescne wos Eee ee 222
kissing of gospels, when dispensed With. ............ 0 ee ce eee eee eee ee eee ++ 222
form. of affirmation: s.244cc.-sssent is Grol See mi eceet doa Ree ee eR Teas egen 222
Other Modes: +0 csv sseeeces ss 24445555404 se easereedebes<wacwer else as da’ Bi Rn souiete 222
DOL IULY «ay ge ad. cies Ags seared Geos Reece San E Sse GREY Meee sete aorteale 223-
fee for. officer may Charge. cco5 05.0%. Sees. sete cision ee see se OhUEE Re s 149, 353
Official, Of JUStICes. 6 sie o55 45 4aiete ety eid ae aisieveue seve waren wai dd wre RIES es wap esse ee 374-879

[77] 609,
Offer: Page.
of judgment ....... ccc cece cece cece ences alaWieiepsisisle Wis oie sie's siaie Siac e. oneeleions te EE
on appeal.............- Se ee er sreseieacs Seaenteeaeaenone 90, 92
Office (See Vacancy):
when forfeited.......... asain hae aubea is eA Ae ee te seceeeees 129, 184, 375, 380, 405
effect of Code upon...... Sja'e aigratahy eleia quis S\aemin ele oxerane een nar cere siatoeseae ers .... 864, 514
Officer (See PuBLIC OFFICER) :
of town or county, action against...........-..56- Ped dseee ovens 6, 307-309, 399-401
disability of, substitution of.............. 0c. ee eee eee Ce Oe eT eT aoa cases 163
when not to act as attorney. (See ATTORNEY.)
execution against.......... Hee NG er PSE Posed eSoeesE Reed esses sacs ee sarees 309

costs against. (See Costs.)
fee for administering oath.............ececee eer eee
may charge fee paid for, etc.......

   

7 354
effect of Code upon...........eeeeeeeeenee Sivsedinraches seated dareivvarecameeerendaaee 364, 514
fees of. (See FEEs.)
resignation and removal of......... acasraradhsi bre Sesievac areen a apt aaa aces Seca 379, 405

Official bond :

Official oath:
Of JUStICO nica Warnes aen Gadaeeek in weweenwes
Official tenure :
OL J USELCO sais rece x's'e genre easels a Seale estes Ss SG DAs ea Ss
Oral:

pleadings. (See PLEADINGS.)
commission. (See COMMISSION.)

Order (See Motion):
of arrest. (See ARREST: FORMS, order.)

 

 
 

transferring cause to another justice.......... ai dhe Waters SiS dae SSeS ay o) ehskewiaers 188

disobedience to.............. Saravgineeisraves acetate st Sesjanakayois Taetasstertistarsy acere Sal aceyaial arora 160

to prosecute bond to‘people.......... fsbghar'eeyeieiersiene aisijaiserge naverenas Kidewesaens 212

in special proceeding, where entered .......... Sasser Brees class aushids Sed heratel ow iaresaya 213

to produce books, etc.........seeeeee os Syshigguasacgua a arah cha sisiatal te wiaretsraver sign ahiat ory 225, 226

defined .......... a URBia SANS KORG AGA Sale Siete eels eG Swe aaa eES se deeweeeee 358
Overseer of highways (See Higuways):

seizure of strays by..........- SS Oe a sUaGUweNea ewewumaeas esas heaters - 100

cutting trees, CtC...... ee cee cece ee cere rene renee sisisibis Stel ssyaratare: stats asf eleve'araie'e’s - 269

vacancy in Office...........eeee Sererdmeraraitste Fea eeaaeede esas newsaees sueeaeeesaas 403
Overseer of the poor:

fines paid to... 22... cece cece cc enesceeees ss seeitanle sPdNENNS CERES eee ereCeT 9

fine against defaulting witness and juror...... Sasirg wawlaare Kearyeasrerseiss OG, 66). 441

powers of, as to strays. (See STRAYS.)

vacancy in Office Of........... 0. cece eee esasisecsae 408

auditing accounts.....

absconding parent ..

relief Of POOT coc. cisws teed Veaw HOON See Enea s . .

forbidding sale of liquor ............. ee eee wewemaom ni sean verre ee ereee .. 499, 532
Owner:

GOANED shccccweteasesewoanwiaes Sal woe aolasinminenea es auiroanevaneeaicherenSiaieaste -. 118, 448
Papers:

production of, (See Books AND PAPERS.)
evidence of. (See DocUMENTARY EVIDENCE.)

filing......... Sides gateve tte scoibsesete tere aaaessaew Sapa leiissitwietis sevevweverenceas 131, 218
Parent:
absconding, proceedings against......... Pe OO

610
  

INDEX.
Partner (See Jomnt Drsror) :
Of justice... .... cece eee acaueibiets atatetetariraye Jiiisise wa Seles nee ausmte eioeiaune tne
compounding debts CAMS saws sees oes HaeE RST PRA NERRETeUTe eC eS
engaged in transportation, action against.............
Nisbilityofs ss o5:3.0 ws sites oben ninivinea caries wa Ota sa be vas uae Mares vieiardlenys mane wae 317

Parties (See MissoInDER) :
appearance of. (See APPEARANCE.)

plaintiffs. ............4. shin! ava wis Giaueaes Secon! were teieagta ae eats CeEe.s eels 195
real party in interest ............. ee eee eee NE k HSH Se HERS NAE Seer nmosteiie He 196
executor, trustee, etc., action by........ Sone ow adie n awe eerie tums ees 196
married woman, action bY wate ee cies ess iGo RAT Y Br ROO RR AEE SEN

 
 

liable on same instrument
poor persons

infant, right of to bring action........
death of. (See DEATH.)
need not sign bond, when (See ForMs)....... oP heeaniteneiere wares dispeiinpiateteungrmtiene tae 211
bond to people, how BUG ij ciierecesdars seis ikateeaue SySs apdidse ack Auauara sbarstmacsieteanees Leeks 212
change of, not to affect bond ............... Sick hyde 2 Sew SR cate ath okeeuatoruaaancendialeg 213
as witnesses ..... etegrenerasand sAiet eh araleacc%s eiiseiranslel Sie ley deere aeyase Aiacbwaeyaee a 215, 219
misjoinder................. disinaravetieis arecetahrans Gis tisidie Raa tee 42, 48, 195, 196, 208, 816
Payment:
_ presumption Of.......... cece eee e eee eees $50 Ss BARE MERA ORR Vek ea BANS 178, 174

Payment into court:

 
 

 

   

 

  

securities for money, action On...,.......02.0085 Budi Neca ein etne BEE eRe sree. 209
Peddlers:
proceedings against .............06 weeeeee asain Wide deceuewe Meee panmitau ees .. 494
Penalty:
action for ...... eee 0see : 3
for contempt.......... 8
ArVOSt: TOM sevice csc ctec ts yan raed an ee ies 21
for wrong delivery Of chattel: o.c:5 sisscxe.siunss: cased sig aay doled hele Go Serene econ’ HOSS - 388
ADMINS CE WILIESE 5.35 sion diesen sas ws sh osg ais gah a “eae Beudye deauaes ip sun ar esnaea dence lait oe Srelensic 55, 56
JULOT sc fectc crates cebiecni aussie sercenaude irish mss iene eer ae isle wa giecisor seers aes 66, 441
execution for............0. ee eee Sispaupaar GmUaesenasmUatiouaies MP WEE aera R ooo Ca A nee ee 74, 295
for refusing to release prisONer ....... cece cece eee e eee eee eee Stoatogeeed ees GT
for allowing animals to stray...... 0... cece cece eee ee eet eee ee enees 99, 100
action for in Brooklyn.............. detet lied i dpdadate eunmeatealoe sean saneod ip areaeti tannin tes 119
FOF HUYING C1AIM 10 BUC... on rcinc eee ecsdwnad oon sha Noe hae a eeae eae Sa es ceees 129
for not paying over money collected ............ ccc eee eee ee eee eee ee eeeee 184, 405
FEMISSION OL: Aasicavtuse canoe sak caw sa oaee oe mee ioe tears OR OOM a aM eae ele 171, 172
action for in N. Y. district court .......... 0. .e eee ee eee eee eb Od wertre deans 141, 397
Albany and Troy......... acuetenioins a safaioea datasafes a gress lmoaiesaiecavn Sea ove 146
limitation:of action: TOPs... s.ssesistaides heedaisie hearse eos bees oases 177, 178, ae 182
taking down notice of sale ....... cece e ee cee cece eee cere cece ee eeesesene 5, 209
action for forfeiture or, by whom brought......... ates sian daineimaey Gane sate 294, 532
compromising........ sskave sarees wisvGnle swe ses ewela hee 294
Service of SUMMONS iN...... Lecce eee eee eee eee eee eet 295
not barred by collusive recovery.............- aisisnvsiwiaters 295
indorsement on summons ...... Sei 5s chs Baas ainda ein 295
TOCOVErY IN... nces ce eeeues os % ie 6 Eee Sas Os Soeaeiteracies 296
by Off COP ss: <2 sc cseccasnancn meee wRaneee 807, 308, 632
by POOP Ow escsieiectised cece ean Cee RRS Tees ES Se 318, 319
action on forfeited recognizance... ....... eee eee cece e eee eee eee SRehaweries 319
proceeds thereof, how disposed of .......... Vside ewer aay Geter -. 319
for receiving illegal LOC 5 ccavein's, nasca'sivnn ware oes 352
application GET MOWDS esis vine aoa See be ae ers bie aa asta oor aol Sradla alae gp Raeerade. wes 395
for using certain barrels............. ahs faye hfe ass RMD Sla MH ake Tins as lala mvovbuane Suetegs 396
in N. Y. city, how recovered ........... ccc cece eee eee cece Sa Re Bardia astra 141, 397
taking rails, etc., from canal bank, etc ........- eee ee cece tect e cece eset neeees 397
action by Hi LOE hss sss os | aue eeeAas ee e aicelas cab aro 399
for not paying highway tax...........c.ceeeeeeeeee sates a gu Buea dcuuaieesenes 430
obstructing highway........ Sag thw Sade H NaS BEE ES GUEROS amsare seeee 431-434
encroaching upon highways........... Saad asi ae saps m eee eee were eee 431-434
 

   
  

People of the State: Page.
when may be party....... cece eeeeeeee biateivalo wismaeeue Hee eies as ceim aes ats sate wiece 5
id. » in Brooklyn... ....... cc cece ee eee eee ees oak sea eels (haves eed ae oeye Tectes, LED
id. in N.Y. district court..............0000ee inane eee a tans iiee veseaee egiinawae 141
id. anAlbany aud (roy: ccs adie ue vad Wand ones vaeaaanes a igtiewene seaicaae i 146
writs and process to be in name Of... .. 6... cece cee ee eee cee eee ee ee ee eeeeeenes 160
limitation rules, apply to.............0005 er er ee ee ee 179
action on lost negotiable NOE: wowietaieirateasdwmnouseceesuie 802
action by, for penalty, etc. (See PENALTY,).. sdaenenws sswowsan 318
to be in the name Of... .... cece cee eens eet eeee : 320
judgment for costs against..............6 LE RCTR ECG Tae Dae aeswase dela 820, 348
eEXECULON APAINEE. sa. cnawarrendineanide shi ndenenceseEeeew sae Gi Niece Siosbcharate 820
TOBOR sais Aadaaceaer Heated aes taumic ta ee ee eee ere eee 320
security, when not required fom... s.665 secs cies canst ee ae eeeden nde: oamenas 321
Perjury:
defined nuacse exercise seedas bs ea via saga EAs FAR VEdEA SOR LEGA OA EAA Seba) Hee * 223
Personal injury:
Jimitation Of: Aétion LOB. sisi sie de dia aig 4S Ae ae Sele ka Ge. GG BEG SOE WS GaSe e 176, 107
defined. scctccsea rei) dae Gueos uae oka Saito gEG MAes Meads Sa Name ahaa 3857
Personal property (See ExEcurion) :
exempt, what is ............... eee ee srisialdAverecechcoen Gomubtaes ht abe eeake cou uscd, 75, 260-263
action for seizure Of. ....... ccc cece ccc eect e recat eteeee Scaitenere sistas 75, 263
when bound by execution............ceceeee oh Et nb ded abs ee alanine rio ia 75, 268
eH The, nasa, Sac p vcore or ianaj sree dacantovg epee tanta ec pustavascna bees wiaudbia lta ade See aasAmaioberees 357
action to recover. (See ACTION FOR A CHATTEL.)
Petition (See Forms, petition : Strays; Summary PROCEEDINGS) :
to prosecute as poor person....... Seiad sisnechavelenerele sick. a Sinitunde ruaynngnaiad eee yi . 198-199
Physician :
AS! WITMESS 3 us. Min eau wats Maia ani wen a lc ewale GEE Ges eee eaees<aeaeee eed 218
Place of trial:
Of ACLIOI2, <tc leone ewesis ie eke webs weeds Sasa Ss fk Re EEA ES 7, 374, 896, 897, 399
Plaintiff (See ParTizs) :
must prove his case, WhEN.........eeeeeecceees Panna aee Gass 17, 60, 123, 450, 462, 466
notified of arrest; Must APPCAT sc 056608 cer aew ews Aseemecessaienseeeesene sees 22
Telatorsaasiecerscae sec AeiMidg ese eahss Soe Seemie, eee eecs avai aces near avawe-s,aer eras 320
ENED sas dinie'g de gs lan’ Sao bare siendlaiiows Gsrstelesh Gasi'e bahls our ee’ eae ae eae 356
Pleadings (See Forms, pleadings) :
when to be made... 1... ccc cece cece ence eeteiecdeup ede eee wash eee s vas 40
what are 40
contents: Of. cc hiee-se0% loneeeds es adsncleld Grstoseies <aid?s : 46
FUlCS AS: 10555 sarsiste. a qelslaclolleiges saves oGieaieacals es peee Os eh sees ahaa ee Daeg ete ete yes 42
AN ACHON ON ACCOUNT. oi wins cuid seven wees epee FO CASE OE EGG eee ee Ba ed eEIOS Oe ESE 42
IVES TEQUITE .: on6. ig eiaisy vers else angels Ga Skee wie Weed eis Wee 6 oe Seana eMac MeL ws aiS'elsty 48
immaterial variance.........6. ai aeeehteiwaiees sigh haha ervicces i-th sahettigee catane Gearwgh VAR 43
amendment of........ . a § Sinise lactate ae 88k i aseteiwixts tyeatotefisbasieigny, eglicee cee a amiga octal 43
counterclaims.............. . Wetelesiaselators Serr ne ince oceMolemse teat 44, 45, 208
answer Of title: to: dan disci savciarsiscejnieists: theg oroge ov digie ecg ge ade e esine WS Ee sues a See Ee
in new action, after answer of title tO TAN 21.6 cn awinted sche gua mena wee™ ee
must be in English ; abbreviations
verification Of. 5.060.066. sage eeee cos Sas bees

GOTO C GST Soni diaisi aie uitsnpranel nara telsie Vee eR CER a dates aey rs oe xe

Pledge (See Strays; Mrcwantcs’, etc., LIENs):

levy in case Of... .. 0. cece cece ee ee en erence eee teeeeeeerene vetoawes wee eeeces vee 265
Police justice:
election and jurisdiction....... Hiaena weleare vias tawane sedi doves veveieieseesaesea 1BBD
Police regulations:
“BETO PAM Ee wien aclay elias ceieany wath seats wacitan fe Peaielsu esa leieaid ide oe. 474-493
as to public health. ..........s. ee eeeeceee oe Sse c eee eee ONS BA ogee ete Saw ee se sie's 493
hawkers and peddlers......... gislsleliis W Sielgie p Nog ey oie Seigial W Sake Ned cede yee ss 494

612
Police regulations (Continued) : Page.
absconding parents...... iehaaeetaussie. scat soniosotee ck owners s Sas seaweed ees 495
relief of poor...........eee0e sei Seek satan Sede eaaeaee eter tes caieeae ewes wee. 496
sale of liquors ...........0.e000e arse ares S(ateg cin areuea tien iinnedersie fae RATER A 498-500

Poor: ;
relief of by justice......cecsee cece censcccccas a ipeaeteeiate Bekig FERC a DS re eater 496

Poor person:
petition, to prosecute as............. aoe SEA Ma aaa peheeuyugenew ‘ba pees 198

FOV Of ais joresciatenieeiafece srs ee aggievelaseis-s settee docsinedaiel de dew eaw we eae epee 198
When: oranteds ss sids sus. ovsericislore tia ea cieraeictes Seree ss oa vee es savecacearssisace 198
costs and fees.......... slberaieie £5 sain a stersinetions SrBielai Weiss Ginn swe riaw sa yaaa ae arate oesats 198
leave annulled...... glia owivia Gide s Sau relink Ame thmemlanel ee gan weg ak sows lae sete degsay 198
petition, to defend as.... .. Lk RA Eee hu “ebeee ayaa ee see Be 199
fOrM: Of. 5 65 is ssi eres OURS EL HGR E SE RA SY OSE RES RE OO eo hes aHeRes 199
proceedings on...........0.. cagrroRnOS ses saowe Se eedenex ges wes eo 0s . 199
appeals bY. .secc asic saamieeracdoed isaesned desesets sted a ee avvea 199
costs tO........... Sa weusainkasee cas dex eee ee ee eee eer eee aes 199

Power of county:
to execute mandate... ..cce.seccseeeees $42.8 pda Dag. NalnoreMNeSire a GMaaeomeway: Lod, ALO

Powers:
of courts preserved............. sides sinlel sfeieie’stora ewenie dea'sinapenseremurenaseesrs. “LOT

Precept (See Summons) :
in stray proceedings............. raeee wh aes eens . 102-104

summary proceeding. ..........0..20008 steed ieee es Soe -.- 830-339
highway encroachment proceedings ........eceeeseeere -. 431-433

 

Preference:

between attachments, (See ATTACHMENT.)
executions, etc. (See EXECUTION.)

Presumption :

  

    

 
 

of payment of Suvemtens s Mareaeeebeeaeaw HeeweNee ears duedie stew a weeteleasistgewany Lid; diva

of death....... Here sbewss NewS asia ia ste lasaigiatpieiete-t.0it'¥ 86% o's! e we etme sae cielaieriecs sia 220)
Prisoner :

discharge Of. .......cescceeeeeees

CUStOdYGLs oc edo g ess ds esse Sees heerReeee saa ceese seek 4

BUP POLt-OL s,m cea cn eae saiinain tse ee

charges for board of, ete exter .

service Of PAPETS UPON... .. 16... cee cece cece cece e cere er ewes slates vcaidiwreresetioeane's 170

for contempt. (See CONTEMPT )

habeas corpus to testify .. 1... eee cece ee ene eee Boh NOR RMG Rae Ao ARtS S “Ves 822

provisions applicable to Civil 2.2... ce cee cece een e eee teens Habiawe sre aes 360
Private person :

execution of mandate by........-.+e-0+- SUES a aarawes iMacs setae 185, 390, 391
Privilege (See ARREST).

from arrest.......... sib arenes dé eialdharb iets cw vece ‘one’s gente suGvaaw ees - 20, 24, 206, 223
Process (See MANDATE; SERVICE):

form and requisites of.............. eet aeons Sos sired elarens

service of, copy delivered, return........... ‘Cad ae ame ame

officers must execute...........0 eee eee Shs deckatielasdadvaa gigs’ se

TESIStANCE CO.. sass divedowwnca sees wee ses sates otek wie ishasteretese adilec aw aioe eR - 185, 167

punishment for refusing to assist...... eibiaersie' via. ais SiSiaigie Nay erstenars tise aivgrereeaary,« LOT

defects ins. ss ccc%. wwnessebase oasis Ree as ese eee Syakstisrsy arabes BS avian eter 208
Promissory notes. (See BILLs of EXCHANGE, etc.)
Proof (See EviDENCE ; PUBLICATION ; SERVICE) :

required, when defendant arrested .............. aes sie hee pease os 24

of charter, village ordinance,etc.............4+5 Aisinnowiesewie ee: ais eiipie wees aise Kacbs 237

of corporate existence .................. he pad BONE SNAG 4 AKL See RSE eA 289 392

of publication............ 2.44. scat hea) RiarasaodscrOVargtere CISC siweeseaewereees 02,991, 892

 

613
x“
INDEX.

Property (See Persona PROPERTY) :

 
 
 

   

 
 
 

Page.
injury to, limitation of action for..............000% Sashaee nine aaieuardarere's 266.0 Gie'e wit aL VD
qualification, OF, BPIGL GUTOR yeas teea sagas wend. as aay ode eee jemesgine reece 246, 247
definition of........ Se asin ws Raw ceebisrnistiealsunncaereees 357
injury to 357
Public holiday :
excluded in computing time............. dio vianieratosoue SGstue seis detaaveaves” dared wyacgreie, LL
CODE say: epsceceas’ eto er'bd 8 Aso re wissd Caco ape es Sveti cera aeeGguaauRl naudaragtasreaiere artim ortvarsiaves Sys) ands - 858
Publication :
of notices; time how computed... ....... cc cece cece cee cet e eee e nen encceeesnee 210
IN AGJOMING COUN bY, io nec. see hes everee eae os eees eee erma see eet d Sereda Poe 214
affidavit Of. .c0csscs serves cues ih ROE a Fa Ge WAT RES Bere © Mis RIN SreiwIR TASTE cane See 232
proof of, under village laws...........0+..005 (ee BEAST ONSI MEE Mee see BAS 391, 392
of notice, under mechanics’ lien law..... Sided sieis Sala ne awe EEA a eR tate sete 451, 455
under game law...............6. seuee ees etalais tsi isisialipidis ada ere acersasenels 484
Public health:
dW OL JUSTICE AS! tOie nod care karan ds: amend pine linaimcedmars staiarelsiutersiclsectelaae a 493
Public officer (See officer) :
arrest of..... pace ard eee (Ae See SS SR Aa cae SS cs ade ve Balateloy Sica Aobeioioatew sementas 21
records and papers of, when evidence........ ccc cece eee eect ce eee eee eee 235
seal of how -afixed) i ..0 a4 tcscuwn de teaiuca cio tdananiais sadn awe Geeeaslen Saiempeate 244
Must searcland -cOrtily sis: ss cree scodce asic wigrcaseeendesisisie isidieigie; iw Rede diaries srewigupxes 245
as UNOTS, Gisq WAlINEM sc caves sarsccivis- scenester ne ait aad ener oleate Se shales nig sie svakerac uate lamas 247
ROM Pb srg ce he a seae tcvah cscs a va iota econo are el NR Oya erg le od Snes drebiieiaie aM giatels 248
(See DocUMENTARY EVIDENCE ; SUBPGENA.)
action by and against town, etc...........-e cece cece e eee ieee 307-308,399, 400
security when not required by. ........ cee cceeee ec eeeeecees WS SaiGisa cian swlesiav se 821
increased COSTS tO... ..ccec cece eee sees tena ececees Sidalewate ateleie-stse ca asag areG 96 351
fees of. (See FEES.)
bondiof: 2. cektaaedawdewinee wane deb aineeewulnion cb pets teides wipiniaied erwiesnaelaeete +02 814-379
Punishment:
of contempt............066 ae ge R a eee a eis dcals eleialee sale gee Bees eee te seessee 8, 160
WUT CO Gs van 04.4040 Moe ERS 89 SOS rd Whe ee eee is Peslib aaa ee eee aes ~. 359
of juror, (See TRrau J URORS.)
of witness. (See WITNESS.) ‘
of sheriff, etc. (See titles of such officers.)
Qualifications
OL FUStICOA a is ccu sa Bag-cacaans se ede eee new tS Seve ges Mee steno 6, 161-163, 374
Of JULOTS ac 66a sac dee abies aes issereped saree Wire sda beet ees 246, 247, 252, 399, 401
Rail road :
corporation, SETVice ON... .. eee eee cee eee e eee ee eee Pete eeetbads seeing: AQ) AS
commissioners, to present accounts to town auditors..............6- seaeocivegee 418
Real party im imterest....... 0... ccc ce ee ee eee eee hadeerera aeons, 196.
Real property :
guardian, etc., when trespasser... .. 0... cece cee eee e et ee ee ee ence Keidriwiedeee Loe
action by reversioner for injury to... . 21... cee cece ee eee eee een ee eis Seared 267
by joint-tenant, etc., against co-temant............cee eee e eter eee eeeecesecs 208
for cutting down treeS 1.2.2.0. .... cece eee cece enn eens sseeecscvacces 268
treble damages for forcible entry or detainer... .........-.05 Uewewase SSE RRS 269
SANE, oss. crswranmiacydsrtesasceten Quien oes es wees meee ee tstmecees B57
action by executor for damage to........ sees Dudes TOES sanduciseseawesess SOE
private parks......-...--.-+45 eeaman eae SITthas Geass sats senate ABE
Recognizance:
discharge of prisoner........... 172
forfeiture of ......... 319
action on forfeited 3820
money collected how disposed of. 319
Record (See Courts) :
in English... ......-+. eee eeee a Dialalaiuiahala aiave: -(giaisiw'sice Mes sauag ato ibare mahi temmeerentels .-. 160

614
   

Record (Continued): Page.
removal by subpeena.......... oiSe seaaititars cries owes mun eae aoriehur sane 225
when evidence........... Jas Ss 285-243
Of CONVEYANCE; AS CVIGONCE ss ios wdciedie sinned eaw ends ie 2g hee bao eon o oes eee ead 236, 240

Recovery (See Damaazs) :
collusive, when not a bar to action.............--052 jes Has. ave elcie ea Seana ass 295

under mechanics’ lien law.........<. (3 RA AeA RE beer ah e 449, 462

Redemption:
it: SUMMA y ProceSdiN BS woo ioe lcs food cele esis dieses ee eles caste wererm eraveaumionentondimalaiers 839-342

Relator :
when to be joined, indemnity Dy. ........ cece eee seer ec ence cece eee eeees 320
Costs AGAINSt.... ee eee eee cee eee lac eie vi whaivralaaseeaeaniashe ep deasialorait tele Gieracarbimiiaibrersine tes 348

Remainderman :
action by for injury to property.........6 cece cece eee were tent ne ee en et eeeee 267

Removal:
of action to another justice... 0... cece eee ce cece erence ee eeees 22, 188, 134
of action from N. Y. district courts........ 2... ccc cece cere erect eee e ee etenee 143
OL JUSTOO. curser deasciin iia aes 6 0.8.9 $6 8-4 29'S savas eas “a siavehe al pi otaaR Rew are aleve AR Te alosiie ae 379
Of CONStADIE: ge ese vse co04 asus bx OEY ease eee ee eto comeune sae Fane ssa 405
of sheriff, Cte, SUDPONA Os i soc oscars sc s.cee cred saed edione ss ysmeot Gewese sniee cele e 405

Rents and profits (See LANDLORD AND TENANT) :
recovery against trustee, etc., holding OVer........ cece eee e eee eee cere eee enes 267

DY! OXSCUL OR, CEC 2 sso: sudisercpavs eancedinioscis sous sieves agers sssieyerar sere eeien oe Mee BREE 443

Repeal:
of mechanics’ lien lawsiisiscciacecs iia saer iver denn seweercaoes eveeseaey eee e's 458
Ol GRIMES! TB WSs ieisdgisnehegerd. sage WE 6 Rare e st adie 55584 ater eee iOmie theres oe ele as 491
general repealing act Of 1880..... 0... . cece cece ete cece eee teen teetencees 501
OM OCU: OL. 5. .ccce cavsiatsrans aoe 6.8 ise 8 Giese. 5 ebihAh fais Miers cores Aacecei ar AES COU S TRL 356, 859-361, 512-514

Replevin. (See ACTION FOR A CHATTEL.)

Report:

OHNE sas eiecseis vote eae ales’ le'e's yews 9.5 ss wishes etoeeis wpe lores wis ewe atels ehe's oie 8 Sloe ee oes 357

Requisition. (See AcTION For A CHATTEL.)
Residence :

  

OL USCS less eae ai Ses 684 Aa a ats aie Mina) WAM Cenelen Hewes See ESEGN sbtece wee NOEs 874
Resignation :
Of JUSTICE sc tase cen 4s ae Voter Heleiea) Se ea mEMIS Riemaien a cure Hei sOMeiee 6'e'sis ew ON ES eiae. 879
Of TOWN. OMICOTBiccisc css vine 449104 ee weie MelsloaelewnoleeweRUiee eee Sems + 6 si5je e'e'ei0 402
Resistance :
tO: MANGAS. soos isos blots cas saecinernensoeies ERGs Kole GaiwW Bates Sass eax S'S 185, 167
Restitution:
on reversal on appeal..........ceeeceeeeeeeee ai au aybincdraraisteietelaieieeaioiares aaah iete aisudeewes 85
{M SUMMATY PTOCEEdINGS.,...c rc e cree esac cecenee evvveeeucs seus asacauatacetauauaeee kadotnae 344
Return (See Forms, Return) :
OL! HUM ONIS! 54h shee hos -aiehe osteo gera ey Seale wise wnolesioneal " c-aia Gh wie Save TE a ws 14,15, 18
Of OVdGr' Of, ATLOS er iiccietes is. Hs cis os Sve g ss a HAD ORO MELON AA Deeb Rata DeeNNhGleamW dees 22
OF Attachment is ses ic eise’e saa weighed asian eepetderee date siwaiew taal Uae ead eee CEE 82
in: PEPIEVIN wissen ie ak a ooo o 52 AEE Feelk HL SHEARS em ee atraS ciadatelapece iets ebay e Basta S. Sie 36
Of SUD POONA ae 4 < estas siensaier el vieieielers mien nersie Shes SW a ea EA ele Se Sat Sele Seale aM 54
Of OXCCULION seieiaeidawe cay cm swinsisins oon.’ sy. 8 2 Gai e'eeu wea Meereaee haart wae eae 16
action for not returning 78
ON appeal vn kecee ese acters tse ae cee eae 84
justice out of office 84
further, compelled. ...... cece cece cee eee ioe WEN SEG SOE RERT EA CSV ER SSX 85
after justice’s death........scscccecsanasterecesecseesuesseceeseeess 85
of precept in stray proceedings. ...... ccc cece cece cette ee cece tenet eeeeeeee 103
in special proceeding where filed ...........csceeeeccercecereetetereeeteeecees 213
of commission (See COMMISSION).......ccceeeceere cece rc cnseeeeer tees «.. 59, 227
of precept in summary proceedings ........eceeeeeeeveveees aargreauneeuwies 330, 331
Reversioner :

 

  
 
 

Page.
action by for injury......cceeeeee cena wieiere selon Sewiswe es feisewens Coram ann 260
Revised statutes :
portions repealed............... auadese ens ee were Sieiaie ewibtarewnw vase evan ees .». 445, 501-503
Right of action. (See Caussz or Action.)
Rochester municipal court :
jurisdiction of ............ edb wee ecoa net wietebig pareeae ea tegete iouleieees 225 148-9
Salary :
of justice in, Brooklyn. ss .3 ic ivevacesssaes sede seriees sueeeee si400d % aeene kes 119
of clerk in Brooklyn ........ or eee rat eer een 120
of interpreter in Brooklyn..... 00... cc cece cece cece e eee eens 122-123
Sale:
in execution ...... Sa Fa sei8 Sag Wa acca rat aud sara asayoi avers Seadaranend Gui cacaraseratjuetaueg 259
OF: Stra YB sewcniswiveG bres os da wie'e oo idee haa owas ee Aone ahs ee Sateen 104108 424
of chattel to satisfy I Ee AAA REE AE SRR ACERS Oh skin ays di Gren ose 287
tO Batisfy ‘mochanic’d Nene.) cc tas ceases nese dace cd eaeaceeesetanen Govese ens 452
Satisfaction :
of judgment by innkeeper justice ......... 2. cece cece cee eee ee ce ce eeeeeenes 6
against joint debtors ......... ccc cee ee cee nett eee e tee neaeeteeeses 316
Saturday:
AB SUNDAY’ ss wasewes weeds 4 cake dew Mee eS eae Coa ewe eee eee eee eas sae as 888
Seal:
evidence of consideration. .......... ccc cece cece cece erence ee cent ee eeeee 219
of public officer, or corporation, how affixed ..............065 Oeer ewe oe ads eed 244
Search warrant:
under game law. ........ cc eee c eee e ewes Toligiels Sipe Nee ou Uae ee See deies 490
Security (See Bonp ; UNDERTAKING) :
when not required of people................05 sa@n SUG Sade Lees eeeeaeeeceane 321
for search warrant.............. cig pastes sewer aieleiarerer ati oterers os Ce oe as ears 491
Seduction :
no jurisdiction of action for...... sida sii vais Gerke -e. Seayy aie'G sighs Pause wis ais ete wistevectia 5
id., in N. Y. district court........ 0.0... . cee ee eee puke UES Res a eNG ke nos wie araoaigrs 141
id., in Albany and Troy........... see eens ieee Sis eee e Mewes Eee alae 146
Seizure:
of strays. (See Srrays.)
Service:
OPMSUMMONG so ie'50s lle hieteael ails. Sek VV vine eames cas OA Neuen tie 11, 166
upon corporation, eC... cc. cee cee e eee eee e eens 12, 18, 194, 399, 401
and order of arrest ....... ... era rarechanuni ape nese Mae euenre see 22
and attachment.............. si gipiaha kg Gat she’@ arels e 6 Gai wie eee Gea seas 29
AN TOplOVin: PAPCMS s:< .oac-ni6ds o Giss ge Soe Pee dee gees das wes ye uy eee 35, 36
of subpeena.................. Saibiteracer ei sieeve nis eye siate aon Gatun Salem eG ols aera SSS & 54
of notice of appeal.................0. eins ease Spe aus Meee awe eee sees iste oe 82
precept in stray proceedings. .......... see eee eee ee cence eee ence teens 103
of summons and complaint in New-York, Albany and Troy 144
ef process, how made 166
OM PFISONEL ... 6... eee ee eee ees Fase we 170
affidavit, when presumptive evidence of 283
of precept in summary proceedings... ........ cc cece eee eee eee eens sees. 882, 333
on Saturday, Sunday, or town meeting day.......... i> mss aia sleanvane sepsis 3887-389
Oy SHEP pcos csioacreste hwinae yr gawaieearimrels nein RRA Sle mbaee a Rie eRe Sepa 389
et Ny Vi Clty ci occa cue scale ey seeds cinwg ae ys Seuss es es Sees Seissinceleae te 390, 391
under mechanics’ lien law. .......... cece ct eee e et ene e cc ee ee ete e eens eee neees 451
by Game constables ics sacs wisi aaraiereieisiswieeeypisiere wes ead eiyrake eee aie a rawness aie Hel eNS 490

Set-off (See CounTERCLAIM) :

of recovery and costs ae
when not allowed ............+. 395

616

 
INDEX.

Settlement: Page.
of interrogatories (See COMMISSION.).............005 MMS NEEM Ia ST eeeee ake. OS
Sheriff:
when must discharge judgment debtor........... 0.0 ecceecece cece ceceeneeees U7
penalty for Hotaccsave ved es eid Vea TGA s VdladeadWin da odeh sa vo sde So odaie bebe bees eo
resistance tO Mandate. .ccicsccccosscs veresnncdoededeesetecnsuaneeesecees 185, 167
duty in serving, etc., mandate........ ce ec c eee eee cece ec cee eens eee eneeeneeees 166
not to practice as attOrMey 6... cece cece cece et cence tence ene eeeeense eens 164
limitation of action against........... ONG Nlelee Mahe aaouoees Shu oe Oia 177, 178
liability for arresting Witness. ........... 00. cece cece cence eee cette eee beets 224
neglecting to take charge of jury, etc... 20... cece eee ee eee eee 254
notice of fine to be given tO....... ee cee eee eee ete een neecene eeeee
remission of fine... 2.2... ccc cece ewes
sale by on execution.... .. ‘
fees Of, provisions: aS!tO% . 345 scjiasediewassag casei wee we eagaw aye nss nese

 

service of paper on

Signal service:

 

record. Of @VIdONCO.. .cicaewerseiec ss aede Gvesadereesadeats saw bes sedence ea sees 239
Slander :
no jurisdiction of action for .......... cece eee eee ee eee eee ees bene Snce staige S 5
id., in New-York, Albany and Troy .......... 0. cess eee eee tenes pagease ea 141, 146
define js jsciies st enaine wtroueuedisinwaaates Wedel Wed free cs a aeenesednen whan teens 357
Special county judge:
may issue habeas corpus to testify... 0... cc cece cece eet eee teen ee cane 822
application in summary proceedings to... ........ 2. cee cece eee e eee eee eee 027
Special proceedings :
PUPISALCU ONO a sc-c2s0) tie niae oataeleavararh ee ae and aces he ave oavada hos pebeeatets ain aera 3
placeiob tHalOl coe s Lec weieieciek dcang cae e i ceaa tam een eee wea Faas % 3874
transfer of, to another justice... ... 2... ccc eee eee ee eee eee eee 138, 134
Mimifation cols 66.55 ois cicsessea: sshanelensdevasievs: eae Sars s 56 oe Se aa PEON Oe dR EA RA REESE 190, 191
where papers to be filed and entered... .........- cece eee eee olgtayel paste Stsucievancigs 213
witness in exempt from arrest ......... cece ee ee cee eee ee er eee ecenee wistersiays she 223
production of books, et¢s, Wiis sess os sch p005 ee See geo es aes dan Pee Ses OS 225
prosecuting, etc., in another’s name................ ee ee eee pu Aaa s SNE SS 296
effect of transfer of cause of........ se beads ley ece ae Se 6 ate soa. ceiey aerate: aa .. 297
by or against town, etc., officers............... 807-309, 398-401
defined .......... SRR GETS ov eRORTAT SHON eR eR RENE Shee eR SRT HERES 355, 358
effect of Code on ........... ee et ee EET eee eee eT ere ee seeee 864
as to strays. (See STRAYS.)
as to tenants, etc. (See SUMMARY PROCEEDINGS.)
State:
replevy of property taken by.......... dieesinath Glenn ED HIN cael Gilded BSG sage nStS 34, 272
laws'of, how proved .. sec ese cis Seaeeeweeus dase sete. EE er ee re 234, 239
conveyance of land in another, how proved... 1.22... 62. e cece cece eee e eet eeenes 240
justice’s docket, etc., of adjoining, how proved.... ..... see cece ee ee eee eee ees 241
State writ:
Habeas COLPUsins sv soe su see sae tee eees Gon eos a yeaa ele el es Codie gee eri Ha See 821
GOSS 22s sain toasts Se eee ee Mpegs se awe Gaeeateadeeeneen seeeee 351
Statute:
jurisdiction to be conferred DY... ... ccc cece cece ee eee eee teen beens 3
replevy of property taken by..........0 ce eee cece cece eee e een ee ne eeeeee 84, 272
Jimitation.Of action Dy. n.cncnc cs Sean es cen Des oe oes SESS NSE ewe we wR TES 175, 178
ofthe State, Wow proved. .scor wiviwredceccccueie at tagteadte 24 s2e8se ek ek eee 234
of other states, How proved, 6.2 6.0 sc si ence nario Tease ev OVERS CORE ERO BT 239
CONSETUCHON Gh. decisis ciole ne Wisin seduction diodd Ded ce ce MGled Gee aE OR aR 359
action for penalty, etc., under. (See PENALTY.)
Stay of proceedings (See APPEAL; UNDERTAKING) :
in summary proceedingS............c. cece eee ence eens Pee eee ee 3388, 339
under mechanics’ lien law..............0008 Seon iwidstie soeeesoee Ses ees NS . 456

[78] 617
INDEX.

  

Stockholders : Page.
limitation of action against............ ce... eee ee ee 182
ACHON ARAN. cise Kiisis Hide Gtgrinens WIG Ona aAs oe Mae me NeD eee, 291, 305, 316, 467
misnomer of codefendant......... cc ccc eee eee c cerca cseceesenectetteces 291, 307

Strays:

under the Code:

action against persons suffering animals to stray ....... coer cece ese seer eecneeee 99
penalties wyssdidiaedswntes gs aomarnieaiera emai cwemawes th Nh iS hk i <0 a SR A 100
certain officers to seize animals straying... 0.2.0... .. cece eee ec ee eee e eee e eres 100
when private person may seize such animals..,........... Hlassvoreubearacecned veudrouaneniniet 100
officer or person seizing, to present petition... .............. Wintasavelenvereteacerae eeee 101
precept thereupon .......... ec eeee cece ence cece eee eeeeeneneneee nae Suinenireat teens 102
TOW BOR VC sci. 05 ispavausquaxaun suede cuesane cuaenciieneveicuslsunicna sg duacs Ghats spa teve\sastacahauen Syoeun 102
PROOL OL! SERVICE ss wesw aie. ccavoaies a dveusrhinacaiore Matera siren Splorene aN Pieie Whi bile esa ibe avacae 103
ATIG WORE TPIAT, irene euch ctarevsrcid: saree a's cchves avanavsttecenee anne oh due. iste auuvel hoasstaddvaopancah val meron acovetanae 103
decision in favor of petitioner ; warrant to sell; execution thereof.............. 104
application of proceeds of sale... .. cc. cece cece recente eee tect eee neeeenees 104
CIsPORItON OF BUPPIUG 4.005 vaca vomaeaieewies/e earned qucard Greweretew eres ena aaa eiseet re 105
when no claim made within a year............ sists, “crabs 106
order upon claim for surplus ; appeal therefrom............... cc ce eee were eeeee 106
proceedings upon decision in favor of person answering..........ee-cee eee ee eee 107
demand of possession before trial ; proceeding thereupon...................+4-- 108
when animal wilfully set at large............. 109
action by owner in SUCH a CaSC. 2... ccc cece ee eee eee eet et ec eteeereee 109
action by petitioner and by officer... . 2... ci cee ccc eee cece e tee e eee ee enees 109
demand of possession after final order and before sale...........0. wesc eee ees 110
order upon demand of possession ; appeal therefrom............ .... ce eeeeeee 111
Idx} Stay Of PrOCeediN GS cc ciwhaviuanneraed chuuined tian Cast ias ka neee awww 111
appeal from final Order. icc isvavscavvousecaneacadiviag eis yareinagier a yawslewiews 111
id. ; stay of proceedings and delivery of possession, when appeal taken by claimant. 112
proceedings WPON. AMLMANCE 530% wicks isia 4 fared gp wee Ram nwa wine e Ke eae weet es 1138
limitation of action for seizing animals ............-.-.00e pidrSeiaser Mie lee Seehia taunts ou 118
certain actions cannot be maintained... 1.0.2... 2... cee cee ee eee cence ceeeeeees 118

where several animals are trespassing, damages are entire; proceedings i in such
CASES. Ara iuisielvnc sles wey sacle eGo oth She awe Arete e Aw Lue nainersilatp ender 114
proceedings in other cases, where there are different owners. ........ccccceee0 116
surplus, where there are different OWNETS...........0+ cece eee e cece cece eeeeee 116
when one action, etc., supersedes any other... 1... cece eee eee cece eee ee enens 117
rights of officer when private person fails to prosecute. ..........0.. eee eee eee 117
person having a special property deemed owner... .......... cece e ce ee eee 118
agent may act for his principal....... Sri McueSe Reni Raeioag + “aimacons atone 118

under the revised statutes :

notice to: town clerKinioc seeiiveae Wad ee kes bemoan tees abaie sewn ee woeaie® 423
town clerk to file notice... 0.0... cee eee ce cece eee pesibiia gh awie sida eiaidualoarsinor amen 423
book to be open for inspection...........sceeecece tees ee eeccce cree eeenesenenes 423
fees, charges, fence viewers to determine. ..............ec cece cence eee 428, 424
foes of fence ViOWE? si sciccisisiesiaee Geese ee ta a ae) PANS Pees NA ee eae See _ 424
notice to: fence VieWeRs sisi nine 6 sees Vee ws OER EOS SERNA UES IOS SEERA CORRES HS Se 424
when may be Sold... 2... ... ccc cece ee eee cree et ee eeee fe SRI re Sis a/eales Vavmine ole 424
notice of sale... .... 6. eee ee eee spidey rAnpa Giese Ues ce wee Me tae esa Baws 424
proceeds of sale. ....... 0. cece eee eee a Si oaceorata te Wists Sa Sere s wat a BORE. ee Ste Hoare 424
ACHY A TOWN pied oe naie-ctecets Bea pede shaun eS ew sigigiy- sreieietstaie 6 as SVG seaat orb 424, 425

Street commissioner (See STRAYS) .............. 00 eee Sewage eee Baits 100

Subpoena (See WITNEss) :
when may issue...........-.--- SMLee mod) ewe gsewsbeeiornos sates 54
Service Of ......cc cece es eeeeeeeee ai
penalty for disobeying. .....0..seeee cesses ee eeens
commissioners may issue..........--

In DANK sos sie eicinceleisi cies gece groin se Haren es ome {ot emeenees jaa Sing Serevent «+. 128
to produce records... .... 2. . cece eee sete e eee eees crete als os Sl sigik pele 'e Pista Setar eee ee 225
account DOOKS.......eeseceeeeerecs scaileeereaahe avers § Rtarouayerecbn oreivieersieuw: (D4). teed
books of Corporation ......scccare scenes cece cect en neers eeecerenees 226

Substituted service:
im BUMMATY PTOCEEMINS.......cseeveceverevevevssceccersscseceesseresessess BOG

618
 

 

Substitution (See ATTORNEY) : Page.
Of another JUSTICE... i. cs ede s45kaeeeelee cade meenaicmemquiens didjacasa waietnnemie oo... 138, 184
of officer in special proceeding. ......... 0... cece eee ee cece eee osianue ise acd prs ave 163
of party, not to affect bond or undertaking........... cc cece cece eee eee eenens 213

Summary proceedings to recover possession of real property :
when tenant may be removed by.......... cece eee cence eee e eee sc eeerenes oes O24
persons holding over land sold, etc., may be removed by ..........0.0008 Saas 825
removal of person in case of forcible entry and detainer........... 0... eee ee eee 326
application in, to whom made.......... ee ee ee eee 327
petition by person entitled to possession... ...... cece eee e eee cece cece tee eeees 328
notice to be given in certain cases.......... 0... e eee eee ORR Daisies: ed ona 329
petition by neighbor of bawdy house, etc ...........0. cece cece ee eee Sea? 330
precept to be issued on petition in... 1... Like eee cece eee e teen eee 330

how issued in New York city : 331

NO WBE VEO ods sscdnsisie eccrneves aomiad emo stior smueaporbicags 332

duty of person to whom copy of precept delivered...........0. cece ence eee ence 332
when precept to be served on landlord of bawdy house...............505 200s 333
proof of service of precept. ........ Safe esd sein oa ata guna avar mares LNA wear Poheneiaaye iors 383
ANS WOL ID ce svscusvsy sis aeshayen nds vi ule Rie apse ow hi rate gid Mare ise: Dain WnlaN Mind anes 334
issues upon forcible entry or detainer........... 00. cece cece cece eee eee e eens 3384
transfer‘of, in. N.Y... Gistrict: courts, . ssc eq racecang guava iccenantwancinmarnkareged Seasis 835
trial ..... sig sah are pin rata ele few Staa:s loth via vels lel aetwle glioma lars oe outeandnial oa gmrtushS aaaraLSraaM 385
adjournment .............. winiare etatsleceseaiotiiacs Aber siabrisbets aegis nme nares smemadeenty 335
final orderuponstrial piccwics, ea agree coi sen eatenw oielaanealdee wenistenn mutate 336
Costsis: how colleCted io.:s. swine wine's sae -hiess aiwls latera sie isnatela elt gasranaiateaalpeaiel eavewela’ 386
warrant to deliver possession of premises. ........ 6... cee ee cece eee ete eee eens 3387
execution of warrant in......... 2... cece eee eee ce eee "oh Sea deem Mesewes 337
when issuing of warrant cancels lease ; landlord may recover rent.............. 337
such warrant and execution for costs, when and how stayed.... ............06- 338
undertaking to stay ; how disposed of .......... ccc cece eee cece cece eee ce eeee 339
tedemption. by lesse@acserssi sv ads vans sce s cease semester eRe SOOT ROSEN 6 339
by creditor‘of lésse@'s.: avsenveci esse tena ce ae esean wees awed 340
qualification of last two sections... 2.2.0.0... cece cece eee tee eee ee erences 341
order to be made thereupon ; liability of aide TECCCMING 3 as cieesaypaneae cece, 342
BLP POA ssp ce te ceria ciao pS sa Rec Rg aE aa TU aD Woe ze eRe HB snes 342
effect of such appeal limited in certain cases shed arte go: sete aa dink fsa Shs Spee goyaranscane 343
warrant ; how stayed on appeal..... 2.2... cece eee eee eee nents 343
appellate court may award restitution ; action for damages..................... 344
application of foregoing provisions ; effect of final order.....................05. 344
how proceedings of this nature to be stayed......... ee cece cece eee eee eee 345

Summons (See SERVICE) :
action Commenced Dy. .... csc cnccseecee eee e cess eee eneenea nee nae 10, 166, 183, 184
form (See FORMS, SUMMONS)... 6. cc cee cence eee eee mene ene ee eens 11
BE TVA CO OLE opie cecrexertsssiceut wean cadasascocgugaveun waenlaaraccemeunlgecmucne ea wlanels 11, 22, 29, 35, 36, 166

upon corporation, CtC 2... 0... cece cee coer eens 12-13, 194, 399, 401

ECON ANG. CHIT ssi ssce.wcaxarsrsyoin wigan niece cis dun disonsave REN W wiles aeatdicoesueouactranetandenearoPaarae 14
defendant’s name UNKNOWD.. .....-. 1. ee eee eee eee cnet teen eee e tenn taeeee 14
MOC UPA OL yc sarsest gic ee '4 wikis. eigs evans o wvelg srareth ceiaiavis- Sea Wi nlocengh AA -ehwr ajay abatiidda teenies Wiebe RS 15
serviceof, with; orderiof arrests sicko ce aw cue cel pemion say arinigg adhered ios’ ewe 22
WithatiachMents gsc sce ve eeereerreta are auitdagaudnes prea suas sa 29

with replevin papers.......... 60.6 cece cece cece eee eee eee ee eee 35

failure to serve; in! Peplevi ins «sc dsiie vies ask werercsake umiesislauadaeeredeeie gun's 39
joinder of issue on return Of... .... 6... eee e eee eee cence eee eee e ee ees 40
service Of; in Brooklyn.s.0.<cwacdoa setae soa watt cesemmgenemensiendedeiade wees 123
in New-York district court and in Albany and Troy 144
designation of person, upon whom to serve.... -....++..6+.. eee 193
service of, on corporation, domestic. ..... 2... eee e cee ee cee cee eee eens 194
fOPCIGD . <6 45504504 eras Bates Seed 0O ACR IRER TRAE SS 194

inaction for penalty: 6t@.2 cence anes sretitenesmon de SH Te Hee SARS Eee BEE 295
INGOTSEMENE UPON, «....iaccesarnicrcwerwerarenwrwesaies de 295, 319

designation of officer in ...... Locke eee eee eee cent e eee eens 308, 399, 400
served on Saturday, Sunday or town-meeting day, when void...............- 887-389
upon sheriff ..... see cee ee cece cece tence cette e teen eee eet tenet eee 389
ri ING WN OF KS CL EY. oa aca spnigo tg so nh so bunae vena ausalet ack lacuelr/olavicdlovn esha dvava tens Sunde aeenieay oie os ease Se aiS NEAT 390
for highway tax........s.ee cess eee e teen eee e eee ree terete teen een et eeans 430
for jury, to assess highway damages ........ .. 6. cece eee eee e enone 437, 440

619
INDEX.

Sunday : Page.
courts not to sit on, except............. 2200. FORGE USAGR ETRE TASS OSES, 160, 382
ATES ONeciyiseninn Seesaw, Gasancicasiowteaation caee Seeevae Maree ee 387, 388
commitment and discharge of prisoner on. sr AeN ANS Reo SMA NS CUNT Toa 160
in computing time .......... 00. cere eens sine a Weainlte sar seen ceesceerecees 210, 358
not to serve process upon............ sok aN Sa PO ee ee sseee 887
hunting, etc., on. .......... ee eo 8 esas geist Bane MER Male Bb store oie «ee 486

Superior city courts:

MERNED .ieaidsemevedede awe eeaeeaere ais $:atd A Wats erop alerts Waar erie se Pisterwwiceees BOB

Superior court of Buffalo. (See Burra o, etc.)

Supervisor (See Boarp or SUPERVISORS):
duty of, as to election of justice .............. eee ee a budtesd evatcy neiausiepace schayere nian . 873
to approve justice’s bond .............-..... ies augusssve nate Gteaale da uerarore A psaptcnassro nee 376
VACANCY lilies t Sousa 2 oae ce tae koe s Sroaeeauewhese- anes Gate RGus oat eet Sook «... 880, 403
surplus on tax saleS 2... .... 60. cscs eee e eee pan anavoin cs Gheracnisraneeraseae coved su ayarteneroy ani 395
in action against town, process Served ON. .... 2... cee cece cee cee ee eee eeeeee 399
town AUditOr ..... ce ccc cece eee eee eens ewan Grane boas syagar du auapnia een Ne 406
GOB BER <a. cyscaieyaiaiis wvereceisie. sins ra iSite WS pda ier 8, wisieceh ops ona le ecciacrrmra Gaortune'eie alone eeealeattsresat 417

Supreme court:
action in, after answer of title....... sei Seite atari Si arsalek espieies Saususig poeta esate wee
habeas corpus by .......---+e005 abs als Sofese Sila eave ye’ solavaclo'ote seb bieey Site SASS Bde ieree 821, 327

Surety (See Bonp; UNDERTAKING) :
to undertaking, when one sufficient..............00 i deidhaveia avaieice 9oulia oreeis-binoute- iors 3 211

justification by ............ ...0e Sis chifataee mysiaviarenste sate wise seart does 211, 212
exception to, justification.............. eee ase a Raa n ven bua, dc avbrapay es siovayauy on aumistareneiaiqoe are 257
recovery of costs by, against principal. .......... ccc eee eee cece eens Baguio 301

Surplus money :
in stray proceedingS........ 0... eee cee ee cent eee eee eee n cere eeneee 104-106, 116
OM AAR BALOs Veiegerse sees: Rawle, Bos dithe onals iva /ssauies aaicysa ines. ataueubiavey Oi erdveta auetieieia tesa ne ioed 395

Talesmen. (See TRIAL JURORS.)

Tavern-keeper. (See INN-KEEPER.)

Tax:

Action for chatte] taken for.......... cece eee ce ee ee enee aa fa uters wide la eve he peese eee 84, 27

Taxation:

Of iCostsi<.s sy ceesas ce Leia aublowins dervrand Anat Senend MUnatnlee aw Qyaiigd ew hate eee aince 8 €e Geos 96

Tax:
highway, penalty for not paying, how collected............... aia pveldog) oscapainies 430

Tax sale:
surplus in, how recovered.............+- Sige N ed wate oe gene Rare Vee 395

Tenant. (See SUMMARY PROCEEDINGS.)
Tenants in common :

action against co-tenant...... Anis CechoRe vas EROS RN's ued Ea sew eseae ws 268
Territory:
ERNE fo tiiese | Goae Peoas wea iekle Modind sh Gaye ead eee Pats Sede etal 358

Testamentary trustee. (See TRUSTEE.)
Testimony (See Commission):

of witness on adjournment. .....-.....5. sees eee eee Mp ESE ee ee aad . 82

on: forme; trial). .cccnaascec Sean oo ees Beate ees tees Vesa eam ra eee ts 216
Time:

when justice to wait one hour. .... 6... see cece eee eee eet e eee e ees 18, 334

to igstie EXECUTION 0... cc cee eee ene eed eee eae eee esos Sas 73

for appeal... 0... cece cee eee ee eee eet ett e etn teen tenet eet tees 80

of publication........ 056 cece cere eee eect te ete e nee cee e ete eens 210

620
Time (Continued) :

Page.
COMpPuUlation: Ofpe se saeis ciel Gusti weanwsd siete esas! Leelee en bee yeadd 210
words, ‘‘now”, ‘‘hereafter”, ‘‘heretofore”, defined ..................00- 359
when Code takes effect, etc.... 0... eect ee cece teens 862, 364, 514
Title :
to real property in question, no jurisdiction............ 0... cee eee eee ee 5
ONS WET OF sie escddhescen ai olelepsrenecel ere ancinaras wives eee 46-48
of bona fide purchaser, on execution....... 0.0.2... cee eee eee 15, 265
before levyixieccie vee eseeas wane st dew veawee sce we %5
on attachment sale.............2 Peie OG dean cialcnseaaars . 85
answer of, in New-York, Albany and Troy............... ese e eee eee 139, 146
SOE COME: ciscssnaesalscdiy sa hiees Sra vaMeles TaweE EN ae EE sd OEE aee eae 359
Town (See OFFIcER) :
‘placé-of trials. sa. sere aiaid Wad ousns Gates gure ss gostaeie seeeca sae teas 7
“VeHITE In AChHOnSs between ssics osu v ee shee ket ee AG ey eRe RSS Ae MAES os She 61
action by, for Cutting tréés, t@s.. coe ese cae vows ciemed eels Hie siete pce d seasecd 268
actions by or against officers Of. ........ 0000 cece eee eee fete eee cence 307 -309
action by or against, how conducted. ........ 2c. eee cee ee cee nee eee 399
I WHOSE NANG» 5 s.us:ns-eie say pre bbw Soda Vase gee Sea De eee EWN TEs ON Ea Ome 399
process on Whom Served... 1.1... cece cece ewe c eee e tee ceee nent eres esse anes 399
witnesses and jurors, competency Of. ........ cee eee eee eect eee eens 399
before witat \ustices «sini. pire spelen paokrde ned Ee etc Keekseee ee Rea oad 399
for trespass on town Jands...,.... caovesivaaes vine 4s Sane oemew se saneeeeeeee 399
COSES AN od es taste debe denn ee baSR MO DAE R ERNE ESE. dete MRED Meee ts 400
Town auditors. (See BoaRD oF, etc.)
Town clerk (See CLERK ; BoaRD oF TOWN AUDITORS) :
deposit of book, etc., with. ..... 6... cece ee cece eee eee ence eee noes 181, 132
records certified by, evidence. ....... ccc cece cece eee cece teens seneeeenee 236
duty of as to election of justice. ......... cece ee eee eee ee eee eee 369, 3871, 373
to approve justice’s bond... .... kee eee eee ee teeter teen een enee 376
justice’s bond filed With 2.2.0.0... cece cece cence reece erent tee enee 376
VACANCY ssceigccese: 6 a -arackt ee giecd, 21 ahaa SAVE TT GWE WS MATES ae eeteeline eas 399, 403
statement of accounts to be filed With. ........ ce cece eee cece cece eee 407, 4138
Cuty as tO StrayS 2... ce. cee cece eee ere eee eee n ee ee een etene 423
Transcript :
of judgment, by innkeeper ...... 6. cece cece eee ee tere eee eee eeee 6
COCKetiae oo acces aanenr SORES BE TE ME Peer E neu OSs 69-72
when execution may issue against person ..........--..+-2-- 70
im replevVin. 0... cece cece nee e etn teeta tenes 70
' action against joint debtors..........--.eee erence eee eee 7
docketing in another county ....-.-.-----. es eee eee eee eee 72
when may be Piven.... 2.0... cece ee ce eee eee eee eee eeee 72
must be given......... ..- Bush dee nos seeds sa saee 133
in New-York, Albany and Troy.........2eeeceeeeee eee 145, 147
On mechanic's lien 4.65 scww-a dasies 6 chews See ee ee red eesies 454, 463
Transfer :
of action to another justice. ....... cece cece cece eect cee erences 22, 1383, 184
of cause Of ACtiON.. 222... cece cence cone ee teen eee n ene ee wenn reas 297 -299
Treason :
action for property forfeited by......... cece eee eee rete eee tenet teens 320
Trees:
action for cutting, tC... cece cece cece cee e erent cree tence ee eer er es tees 268
Trespass :
limitation of action for 2.1.1.6. cece cee meee ener ence teen neces eeeeaees 175
trustee Quilty Of... cee cece ee eee eee ete e cent e eaten ne eeeees 267
action for, by remainderman............ cece eee eee e eee eee e ene ee nnes 267
cutting trees, CtC.... eee ee ee eee eee ener eens eeeess 268
SUMMATY PFOCCEAINGS .... eee eee eee eee eee ee eee een ees 825
INDEX.

Trespass (Continued) : Page.
action for by executor, etC....... cece cece cee e ene ne eeeneeeee covoeee 394
OM Private Parks. 6 sos ccscias ou grew emcees srwiie’s vgs Meee geste eeeceee 484

(See Summary Proorepines.)

Trial ;
when defendant fails to appear..........eeceeeeeeees 17, 60, 123, 450, 462, os
Of ASSUE OL TAGE. sii! aie ase sentra idine bd atabena lea epadeled Sraraeuseuersie Pathe Biaveeg-o7ar eco teveree
when jury may be demanded................ So etahidcaie Sesnerne oe ate Lieb seeeies ems él
VENILG ychaes easidny st cnen he MARES os See weed Las ea de a eaew ied beenl ec 61

execution and return Of.......c..-eceee ee eee e cere ee ceees ceeeeees 62
ballots ives scien wieaiee sd epee ss pweles vod eb el aewh cometh et aGuiebuwe eas 62
ALA WIN! QUI. 2 ic cesie- cata h-o- ei ciaiiayatahe Sidieidce 4a \esaeeret mate reimse spoyenedee Bisa deedbereeaieue ee 62
PALES OM 0 vistissn’ wig oles jens: evo'p sistas y 0/0 araraewo segs ale’ e aleloig a bislsiata's 0 (ofetee'e ge hints ova 63
DEW VENITC shay sss ines ss sas HRTET Fale OO ENTER EAE E Fs wa eaoT 6 HU Rw Os ie 63
PUTOL SOA LH se sane scene ayonsucucie 6:2: oseverdeu Weajeh (Ged a ul achloie -s:Seadoree. Webauayend se ejeleaes 6156 63
JULY LOchear Proofs sy: ceiswassaw os agers ¥ewieng es siiee veuine He aa Oates sie emew seule 63
witness, oath Of sc cssoedsvdnee cosines 03 vaaees ee eens ieeeed ees sew eR ed ee 63
refusing to testify, CC... ... cc cece cece cee cece eet n eee ecto reneee 64
: Competency: Oj. i.< ¥.<.cigiae sis ateees sie shales bie Seas aa be ele Sie eee Ee 65
constable to keep Jury; his oath. 00 cccee sss ecae caves ccneeees sesencdaasce 65
TEMGIGON: Of VELAICE vo. 6 x reg)sccsave 4:5) adbid a9 a Geass vib aint 6-6 lone, bo9 "eve smi -ayebage se 2 66, 252
discharge of jury, MEW VeDITC........ cc ce eee eee eee cece eet e eee eeeeeee 66
defaulting juror ss.dss devs sew ce seaweed ea sew es eee emee se caress sey 66, 254
JUGSMENE UPON, occ ccsssetes 4 ccaunsd ae Meine ¥ drarbs aveis Gimtbidie dA Teaieie/e baLee ne 68, 69
new, ordered on appeal.............. cece eee dian ecisiiats, Saehe ees nieherase : 88
BS LO 'SLIAYS as 4% acted o 2aleig done Hea SA Ach aie ee LANGE bs c/Rewas Ge AMES 108, 104
adjournment of (See ADJOURNMENT)....... 00. c cece cece cece ee eee secon eeees
new trial on appeal (See APPEAL). .......5. se eee eee e cece reer e ee eeeeane
in. Brooklyn ssc< << ons Vaaginn ss enews st ae eee neem savaitglaye 4ebeyoeiw a svalenete-c%4%e 124
IM, SUMMALY PLOCCMINGS wasn. f-daren veges Heaias Hse he Meee sR SASS wee. 3885
Of MECHANIC'S MEN etna chacamva Bean ne phigh ae sewed Gee Bees eeee we Halescboae 453

Trial jurors:
who may be, in action between towDS........ceseececccececcccscccees 61, 399
SUMMOMID Gs rcsnsere.a. aro ous. Ware parsed mays old Mares wrevoaraeitheaeie-s ocrewnes 2 akouse 62, 63
Oath: OF i sieve rayaw'e sa sere diene acess paldladisa s eddies ealeds s nedwlew semesters 63
defaulting, fine; ClGie.scicde ae venir c.s gonad sad SSaNE ee ceaeer sa des ase 66, 254
QUAM CAtION. Of. ccs ose eae ee eae eee Hewes 61, 246-247, 252, 383, 399, 401

MEXEMPtlODs Of sya sire se enele a ayaa e's eis ecets a aol aere ae ieee Sais SAGER ins; eats 248, 388
* GVIGENCE OF 2s vassed ses os Sitheer ws 4 oR R ee eRe 6 RSS FAs a whee ee Oe 250
CSCIALEE OF asco sales Skcginie nd £ oie de a. 5 nyeh Rie Way eroin 8 8 a eee inva ld duwie ae caraewaeee Si 8cs dm 251
excused from Serving. ....... cece cece eect eee eee eee ete eee eens 251
provisions not applicable to New-York or Kings counties...........200000: 252
challenges, peremptory ......... ccc eee eect cece reece e teen rece eee eens 252
In Penal ACtONG. ose coe Baciaes ease Ve eee oe ee eatin oS eeties 252

failure to agree (See TRIAL)..... 2.2... cece eet n cece sseecorecerencs 66, 252
not to be questioned or liable for Verdict............cseeceeeseen seen enone 253
penalty for taking gifts. ... 0... ccc cece cece e eee e eee ce eee tees eeseenes 253
CMDIACELlY as aie sas Fes MiNis we vas Ses eas HWS BA ONS vs Kew SNA e 6 disraie Sax 253
officer to attend, penalty for neglect...........e.ec eee eees _ bedivele Se weeer 254
fines how disposed of....... .....e ee eeee Slisie 6 eigesewers Lianeleaeniee soeeeeee 204-5

6 Trial jury ’’:
defined s.035.43 wae ss sataves Heswes saree ses diseiee SaPR Daa. + Hee es (908

Troy, justices’ court of:
service of complaint with summons........ ig dpe Gpnrsunce Oa Onsen Si aseieinse a SavaNS a. 187
proof of service........ ccc cece ccc e cece cece eee eeesecees pase sisisieie-etalatese%ely 1388
commencement of action........ 2... sce cece cree scene die aree os ae ees 138
arrest, attachment, replevin............ cee cere eeeeees Sere 138, 139
title to land in question ..........cccee cece e sees a giet ayers tstigiapedns Hes eies 139
BPPOOlS, vaiiceg menses toeaee wets oa 4 tives ea eNOS se tare dss oagEe Ses ees - 140
jurisdiction and proceeding® in.......eeeeereeeeeeees SRR RIA REET 140, 146
confession of judgment......... rasta Visas qinvasaret vias oo Oie a heenares tna catanGre ants age ales a 147

622
INDEX.

Troy, justices’ court of (Continued) :

Page,
docketing judgment execution............ cece cee eee e eee ener e ee eeeeees 147
summary proceedings ............... ehdinveiguady. natshe munca Geom Saieats tn wayne ae eee 327
Trustee :
Of @xpress trust, Cefined|s.2 5: cnc vcs waas ove s sev vsewae le aeae eats radio ~ 196
May SucMaMlONe—— ecaec Suey s mem edn tanes. came aweleies-ard ee 196
power of in relation to money in court........ 22. cee eee eee eee ee eeeee 209
ENESPASSEN wise cesinl sey isis Vie wine et ed mid ds aod dus, wR eaTe eas ashe cracetes Ssctrene Gai 267
Undertaking (See Fors, undertaking ; SECURITY) :
LOR ONCED OL AMT S tice sa sishe see scot Bese 47 aoa ts eos RS win S RR Oe SONS 21, 144
for warrant-of attachments sas)<2 xd es 4 ae xa dee css Hexts omnes saree ees ae 29, 144
for redelivery of attached property............ cee cece cece eee cece eens 30
on claim by third person to such property......... 0.0 cece eee cece cece eens 30
in.replevin by plaintiff « socc 1s daa scces Vadose seixess ouvaw sae ne ies ewes exes 35
DY GeLEMOANt Js lisesi cused aie deed oneal al Swale OAS ets Zeca 37
By third. PersOmis -.5 55 iets a receaee ais lacie ae sluuraitecete wis sl gra es se sicielacwsetavess 38
on answerof title .ac.. «sine scsieess asec rae See cee VeseK TS Reena es 47,49, 139
TC AND PE PLC VAD 5: oyacevers oxchdngd mab aehen’. ayereiiy ve ave lard: Siardide sincere ew, Geared e0.Sueses 9a Seats 48
fOr -AAJOULNMENE ying a aieierd ne mies eaten 2 Mioe 64 a Glee Seay eRe RRS Ales stealer 51
to discharge defendant from arrest .........6.. cece ccc cee eee eee tenes 51
for second adjournment: wise. iat nae ead sete Gite od Game rem e eceee 52
for stay on appeal cick caswsera ees cewwsss ses ERASE ONAE SOM Gow ROL eee HE 82
how filed, etc., when justice dead. ........ cece cece cece eee tee eens 83
On APPeal FOF DEW IAs... -. 5 eioucies setaiare wis Siete e orate ls we eoniaie Os Seg’ g oe wiele Pwratarsnree 90
inestray proceedings. . .sase.s dees oeibe das eeees anag es Hee Se eee S 112
qualification and justification of sureties......... 9 seeeseee 87, 207, 211, 212
SUPiCleNn Cy, Oh. sides srs ined bedi epee hawine sles ge OHA WEN eles eales-saece i oeiaieg a 209
aniendment Of; <ciis ss asus s see cide tose se bee sia wes eK ee ee eee se oe 209
acknowledgment or proof Of. 6... ce ccece cece cece cence eee eenneeeeeenee » 21
‘when: party néed NOt JOIN. dies awe eeroarsind Galea sete ce eas Cedusa eae oe 211
one: surety, when sufficientc... 5. ccccceeissedadecena sevewsseveewssdeaees 211
affidavit of sureties, approval..... 0... ccc eee cece tee cece eee ee eeeeeees 211
SeVOLal SUTELESs as coe cee sree ele GleaG oolKdd FoW. BE. sdeGiekn 4 URS SSUSe Nes Maree 212
to the people, how sued.... occ cece cece cee eee eee ee eeeeeeeenees 212
not affected by change of parties... 0... ccc cece eee cece eee neon eens 213
where filed. <s0sauy eesshse Hawes ec SPRY eee Lease Pee eee a Tase eer eREH See 213
United States;
property taken by, not to be replevied............ csc eee et eeeeeeeeeees 34, 272
records of courts of, how proved.......... cc cece eee cece eee Gem. ee 238, 239
documents in office of, how proved........ cece cece eee teen eee neeees 238, 239
exemptions as to persons in pay or service Of....... 0... eee e cece eee eens 263
Unknown (See SERVICE):
name of defendant.........00ce cece eee eect nest cree eteeeensens seeeuees 14
Owner Of StraySe ices ays ea-ciaaiere Wales ds Denes Hou Sa se eee wee saree Re 101, 102
Vacancy ;
in office, how created... 6... cece cece eee e ete tenet eee neta teen een eees 380
in office of justice, how filled ......... cece eee c cece cee cent eee eens 381
in town office, how filled... . 0... cee cece cece cence teen terete tees 402-405
iN EXCISE DOALG..2.c0dina eosin e AGE a wie eames Sk Ne ORES Foe GaN ees 500
Variance:
immaterial, 2 s.seesaviwsscnwe oicced sobs CseRWer eek Gre cas eeaeta eee e eed 48
Venire;:
OM tral eee cans eae La acids Sneak BRS oes OR EET Saw T 61, 62
TOW. crasa Glade Subang banka - Swale e wipiete ermal ra sere Oe Ta cad iael ROMY 4 isons E<Ue Rove 66, 252
Verdict (See Jury; TRIAL):
in action-for chattel ..o0sviias sacle ceawws cetewssaee esses eyes de dees s 39, 282
Verdict (Continued) ; Page.
TENDON Of ys secede sind cos gigs ah Mong PROWL O ORIG He TAGOw HORE Pee vile 66
TEMISSION OL Parb OL ois 2 snidacia dwg wsislarceiguaie 8 acuusiv RE GAR Rs Sle CS SRE 84 VET 69
AN<StELY PROCCCHIN GS). cg ev otk garneGomecas Haare wed chile varie ay F Saal ea Ae ONRe a 104-107
OMSSOUD GAY Av enthauny anemia st wate od sie eee rayee Sake eee evel eek area neekae 160, 382
MLOWDALEMNCME AEE ccc cease qusce-e Sohcsiere dus svsin dm avi mees aed OES Re heme Sees es are 209
after death....... i Aimaie scien Taxa eianias chet sis ese savekelivveraysfiarasetidve pv aralceso-e aSereor delve atere ste 210

Verification:
of complaint. in Brooklyn os. ssieccavcs memes svaues toed ee Bee dew omy yeas 128

Sbibed ¥-Giasaite aronotaril tee a New-York, Albany and Troy........ ce cece c cess cree eccees 18%
POV OL ee esshaslana Fe Slut des eae hd + Wes vighe F LE Sakwk es RG SRG ee alemeld oe Beet oie 204
TD SUMIMEATY PROCOOMNGS... cree de pee hed vie FEMA Ra THe we Ree wea RE AE 328
of answer in such proceedings............c cece cece cece wee e cr ewe ete eserees 834

Vessel :
record of bill of sale of, etc., evidence. .... 0... cece eee c eee e cece eeeeee 240

Village:
ordinances, etc., how proved......... cc cece scence eee eee eee reese 237, 391, 393
CULLING: TPES; bC.. CHOI, “LOR ca sann'scdach 9.4 od doves otro ese giois siaie heresy gS adders 268
action against officer of ............-.... tbe wia} eee igesbnunss avagsliveruce-n a taaeees 307-309
police justice in......... bucad sv aaieWara Palee s Meals aw eens Rw sis c's EE sO 385

Wages:
of working women in New-York and Brooklyn ..........eeeeeee: 125, 145, 146

Warrant (See Forms, warrant) :

LOW COMCEMI PG cate ocivacssa a cccarecace, sve.gcauoisia, 4 pine i a:tions arash ¥ sarappeav niece Geauuagy “Biase The dialog esate 9
of commitment for contempt.... 0... ccc eee e cece eect e nee e eee eeeeneee 9
of attachment. (See ATTACHMENT.) .

for arrest of defaulting witness or JUTOT 2.01... ce cece cece eee ween eens 56, 66
of commitment of witness OF JUFOF...... ee cee cee cece eee tee e ee eee nee 64, 66

to sell strays. (See Strays.)
of arrest. (See ARREST.)

to seize Chattel og iacewe toadaeges sea ws, tale Now arilowied uae soa Sadat darade weal a 287
in summary proceedings. (See Summary PROCEEDINGS.)
for non-payment of highway tax. ........ ccc cece e cece eee eee eeeen ones 430
against hawkers and peddlers........ cece cece cece cet eect ese eene nee eee 494
against absconding parent......... See Ces Neel pigmiss see ee nleieys Redes 495
Wife (See MarrizD Woman):
action by, for selling liquor to husband...........0csece eee eee er een eecees 383
DDSCONGING \ oi ssodneacmned-es a Weis MONHEw Soa Wem os SNe oe agers o'ele Bele’ Se dejar ens 495
complaint by, to prohibit sale of liquor to husband..............++--.. 498, 499
Witness:
examination of, on adjournment, ....... 0. ccc ee eee eee cece eee e cee eee eee 52
absent, adjournment. ....... cece vere cece cece reece eee e ee aeeeee nese canes 52
SUD POONA Of « sascie 6 4duds eat ORS Qesce 86 BREW NELOw FERS SEEK SE Ree eReEH ed 54
defaulting, attachment Of........ 0... cece cee cece eee eee e eee ener eens 54-55
refusing to appear or testify, fine....... cc cee cee cee ence rene tenes 55-57
defaulting, damages against...... 6... cece ee eee eee eee eee e teen ee erens 57
on commission, examination Of......... 0 cee cece newt cnet eee etree eee tees 58-60
OAT OF os osc jioaepaig +. 2:8 thardns soo ASS G sa Orne da TE ETE Fa Lee aw ERLE EIR ewe we 63
refusing to be sworn, commitment Of.........cse eee eee e ee eee teen eees 64
UM PTISOMMENE: 0.0 as 0.5 sess serene So ene ke GEES EG ERS 64
adjournment thereon....... eee c eee eee eee tees 64
competency of, how determined. ........ 6.605 cece cece eee ene tence eens 65
examination of on appeal.......ccece eee ce cece ener e tenn ee tee eeeceeeees 85
Justice a MALeTIAl : 5 .cined sade eis aleelerne wed Maia nahin aale ww Adel A Aaa eo 133
PCCS:O. esse eaten te erage bak aus as oa’s oaaiees caaise eee Nales e ew eRe pene 155
not excluded on account of interest...... 6.00. c cece nce e eee e eens 215, 399, 401
when party cannot De...... cece eee ee ete eee ence eee eee eee eernees 215
dead, evidence of former trial admissible ..... eines Siaie a etidlanaia: e.g vipieee aie Gierais 216

624
INDEX.

 

Witness (Continued); Page.
when husband and wife cannot be......... cece cee eee eee cece eee ees 216
conviction for crime not to exclude........ 0. cece eee cee cee eee eens 217
clergyman as... .......-66- Sahay Nabts Ae tateaos Meisis aeae ted ie e erereee cei 218
Physician: AS. iveceweoe ss ase eww ads dae eee dese ee Res ew EER Go mew ea ewe 218
MELOP MC YS AG iy. lated nb. oecsdg ae cue peecEstaen Gow ary sks Oe nepeve se dbatelm-adenes ae Ta ehgeaeudins <Gdutuer eats 218
when not excused from testifying. .... 0.0.2... cece cece cee eee eee cee ee 219
rebuttal. Of party’ sicgs.scuaks sathe- casas Care ea emt e dhe karate aed Sa 219
NOW. SWOPE. cawies badass once GROTON GOAT eS OUN Came ANG tae aad on 222-223
CAPACITY; ClO scien samy eds nike cd es s oueieu da es elidacd wee detuen tanlete ee ideiors.e aie 2220-8
SXCM PU APOMY MITES is ede Sehr ts menus iecene sa AOS ace Streets oS Fd lostie ea OURS Bet 228, 224 |
discharge from arrest............-.664- watdlaha ir tice ors estates 8g GES seven ilcare- ah 223, 224 |
action: forarrestiN Piss? cc caeoessines sie ne aug aa tte ob Hass cwa Samos cee Sex ~ 224
objections to testimony of, on commission......... 0.06022 cece c eee eee eee 229

(See CommIssIon.)
in action Out Of, State: <jcccscccss. bend sadlnee4 ace oe DER SERW Os See eRe es ea} 209 cs
habeas corpus to bring up; who can grant........ cece cee e cence 821, 322 *
party or attorney is not entitled to fee. ..........-662 0 ee sea MG Me ou aetaule 353

Workman (See Mrecuantcs’, etc., LIENS):

ACELON “TO: AGTECLOSE- WOT: ic sie Seecsre. ocesesala. cre Guere pie: fueled. om aud 4s ietgula Aig: Suelo uese: arsed Soe. Sunts 287

‘Woman:

OTT OSE Oli pics Saenger elves aaa Bi aiaiend, Ges A Be Senne PR SEW Be Ale Sti ese ye Sta 20 ©
working, in Brooklyn, costs, ete.........00- cece cece cee cree ee nenecnes 125
in New-York, costs, e6¢ wos: seins as owes sine sewn eerne ee es 145, 146
Writ (See ATTACHMENT; SUMMONS, ETC.):
FOTIA TEQUISILES OF 2.95 ciaales mien denedisyes eis inibldl vera Wlbialauas avbnde hala leie cohol 160
Of nevexeat abolished is .csisa ans o's rides eared Slain Seas HOIy VAS RM ae iets ine 206

Writing:

comparison of hand ........ Gk egal a venta o'a Goon guibva dassita seas eswywun 0 ereimumcela uae ioiasorelase 393

(79] 625
 

 

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