PART III. §53 amended. Plaintiff may claim immediate the city and county of New York, by the officer prosecuting the same. S 4. This act shall take effect immediately. CHAP. 131. AN ACT to amend section fifty-three of the Code of Procedure, and to extend the jurisdiction of Justices' Courts, and to provide for proceedings therein. PASSED March 30, 1860; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: S 1. Section fifty-three of the Code of Procedure is hereby amended by adding thereto the following subdivision, to wit: 10. An action to recover the possession of personal property claimed the value of which as stated in the affidavit of the plaintiff, his agent or attorney, shall not exceed the sum of one hundred dollars. S2. The plaintiff in such action, at the time of issuing the summons, but not afterwards, may claim the immediate delidelivery of very of such property as hereinafter provided. property. Affidavit. What must be shown $3. Before any process shall be issued in an action to recover the possession of personal property, the plaintiff, his agent or attorney, shall make proof by affidavit showing: 1. That the plaintiff is the owner, or entitled to immediate by affidavit. possession of the property claimed, particularly describing the How pro be taken on such affidavit. same; 2. That such property is wrongfully withheld or detained by the defendant; 3. The cause of such detention or withholding thereof, according to the best knowledge, information and belief of the person making the affidavit; 4. That said personal property has not been taken for any tax, fine or assessment pursuant to statute, or seized by virtue of an execution or attachment against the property of said plaintiff, or if so seized, that it is exempt from such seizure by statute; 5. The actual value of said personal property. $ 4. On receipt of such affidavit, and an undertaking, in perty may writing, executed by one or more sufficient sureties, to be receipt of approved by the justice of the peace before whom such action is commenced, to the effect that they are bound in double the value of such property as stated in said affidavit for the prosecution of said action, and for the return of said property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against said plaintiff, the justice shall indorse upon said affidavit a direction to any constable of the county in which said justice shall reside, requiring said constable to take the property described therein from the defendant, and keep the same to be disposed of according to law; and the said justice shall at the same time issue a summons directed to the defendant, and requiring him to appear before said justice at a time and place to be therein specified, and not more than twelve days from the date thereof, to answer the complaint of said plaintiff; and the said summons shall contain a notice to the defendant that in case he shall fail to appear at the time and place therein mentioned, the plaintiff will have judgment for the possession of the property described in said affidavit, with the costs and disbursements of said action. CHAP. XL constables, $5. The constable to whom said affidavit, indorsement and Duty of summons shall be delivered, shall forthwith take the property &c. described in said affidavit, if he can find the same, and shall keep the same in his custody. He shall thereupon, without delay, serve upon said defendant a copy of such affidavit, notice and summons, by delivering the same to him personally, if he can be found in said county; if not found, to the agent of the defendant in whose possession said property shall be found; if neither can be found, by leaving such copies at the last or usual place of abode of the defendant, with some person of suitable age and discretion. And shall forthwith make a return of his proceedings thereon, and the manner of serving the same, to the justice who issued the said summons. may serve $6. The defendant may at any time after such service, and Defendant at least two days before the return day of said summons, serve notice, &c. upon plaintiff or upon the constable who made such service, a notice in writing that he excepts to the sureties in said bond or undertaking; and if he fail to do so, all objection thereto shall be waived. If such notice be served, the sureties shall justify, or the plaintiff give new sureties on the return day of said summons, who shall then appear and justify, or said justice shall order said property delivered to defendant, and shall also render judgment for defendant's costs and disburse ments. may require property tions. $7. At any time before the return day of said summons, Defendant the said defendant may, if he has not excepted to plaintiff's return of sureties, require the return of said property to him, upon upon cer giving to the plaintiff, and filing same with the justice, a writ- tain condi ten undertaking, with one or more sureties, who shall justify before said justice on the return day of said summons, to the effect that they are bound in double the value of said property as stated in plaintiff's affidavit for the delivery thereof to said plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against said defendant; and if such return be not required before the return day of said summons, the property shall be delivered to said plaintiff. tion of S8. The qualification of sureties and their justification Qualificaunder this act, shall be the same as provided in sections one sureties, PART III $$ 214, 215 and 216, how to apply. For what may be taken. What hundred and ninety-four and one hundred and ninety-five of the Code, in respect to bail on arrest in the supreme court. § 9. Sections two hundred and fourteen, two hundred and fifteen and two hundred and sixteen of the Code, shall apply to proceedings and actions brought under this act, substituting the word constable for the word sheriff whenever it occurs in either of said sections. 10. The actions so commenced shall be tried in all respects as Judgment other actions are tried in justices' courts. The judgment for the plaintiff may be for the possession, or for the recovery of the possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property or the value thereof in case a return cannot be had, and damages for taking and withholding the same. An execution shall be issued thereon, and if the judgexecution ment be for the delivery of the possession of personal property, it shall require the officer to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs or damages recovered by the same judgment out of the personal property of the party against whom it was rendered, to be specified therein, if a delivery thereof cannot be had. The execution shall be returnable within sixty days what time after its receipt by the officer, to the justice who issued the same. As amended by Laws of 1865, ch. 616. Post, vol. 6, p. 559. shall re quire in certain cases. Within returnable. Justice or jury may in certain cases. § 11. In all actions for the recovery of the possession of personal assess value property, as herein provided, if the property shall not have been of property delivered to plaintiff, or the defondant by answer shall claim a return thereof, the justice or jury shall assess the value thereof, and the injury sustained by the prevailing party by reason of the taking or detention thereof, and the justice shall render judgment accordingly, with costs and disbursements. Return of showing § 12. If it shall appear by the return of a constable that he had a constable taken the property described in the plaintiff's affidavit, and that that defend- defendant cannot be found, and has no last place of abode in said county, or that no agent of defendant could be found on whom service could be made, the justice may proceed with the cause in the same manner as though there had been a personal service. ant could, not be found, &c. Fee for indorse ment. Commis Code to § 13. For the indorsement on said affidavit, the justice shall receive an additional fee of twenty-five cents, which shall be included in the costs of the suit. CHAP. 459. AN ACT to amend the Code of Procedure. PASSED April 16, 1860. The People of the State of New York, represented in Senate and Assembly, do enact as follows: [The first 12 sections of this act make amendments to the Code, which are inserted in their proper places.] § 13. The commissioners of the Code appointed by the act of April sioners of sixth, one thousand eight hundred and fifty-seven, are hereby authorprepare and ized and requested to prepare and publish, in the same manner as their publish a book of reports, a book of forms adapted to the Code of Procedure, and the forms. forms thus published shall be submitted to the next legislature. CHAP. XI. CHAP. 460. AN ACT to amend the Code of Procedure, and to extend the term of office of the Commissioners of the Code, appointed under the act of April sixth, eighteen hundred and fifty-seven, and to repeal section thirty-seven, article second, title second, chapter first, part third, of the Revised Statutes. PASSED April 23, 1862; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: [The residue of this act-the whole chapter containing 39 sections - amends sundry sections of the Code. The amendments will be found in their proper places.] ing costs, $28. Whenever costs are awarded to the appellant he shall In awardbe allowed to tax as part thereof the costs and fees paid to what may the justice on making the appeal as disbursements, in addi- be allowed. tion to the costs in the appellate court; and when the judgment in the suit before the justice was against such appellant, he shall further be allowed to tax the costs incurred by him, which he would have been entitled to recover in case the judgment below had been rendered in his favor. may be set $29. If, upon an appeal, a recovery for any debt or dama- When costs ges be had by one party, and costs be awarded to the other off against party, the court shall set off such costs against such debt or damages, and render judgment for the balance. damages. costs, for $30. The following fees and costs, and no other except fees Fees and of officers, disbursements and witnesses' fees, shall be allowed what alon appeals to the party entitled to costs as herein provided, when the new trial is in the county court. For proceedings before notice of trial, ten dollars. For every trial of an issue of fact, fifteen dollars. For argument of a motion for a new trial on a case or bill of exception, ten dollars. In all cases, to either party, for every term not exceeding five, at which the appeal is necessarily on the calendar, and is not tried or is not postponed by the court, seven dollars. In other appeals the costs shall be as follows: To the appellant on reversal, fifteen dollars; to the respondent on the affirmance, twelve dollars. If the judgment appealed from be reversed in part and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the appellate court may award, not exceeding ten dollars. If the appeal be dismissed for want of prosecution, as provided by section three hundred and sixty-four, no cost shall be allowed to either party. In every appeal, the justice of the lowed. PART III. Term of fice of com of Code extended. peace before whom the judgment appealed from was rendered, shall receive two dollars for his return. If the judgment be reversed for an error of fact in the proceedings not affecting the merits, costs shall be in the discretion of the court. $38. The term of office of the Commissioners of the Code missioners appointed by the act of April sixth, one thousand eight hundred and fifty-seven, is hereby extended until the first day of April, one thousand eight hundred and sixty-five, but subject to all the provisions of said act. $37, article 2, title 2, ch. $39. Section thirty-seven of article second, title second, 1, of R. S. chapter first of the Revised Statutes in relation to the jurisdiction of the court of chancery is hereby repealed. repealed. 38 B., 444; 15 Ab, 65; 14 Ab., 298. Preferred canses in court of appeals. Section 104 amended as to limitation of actions. Section 116 amended as ad litem. CHAP. 392. AN ACT to amend the Code of Procedure, and to repeal section thirty-seven, article second, title second, chapter first, part third of the Revised Statutes. PASSED May 4, 1863; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: S1. The act known as the Code of Procedure is hereby amended as follows: Section thirteen is amended by adding at the end thereof the following; and whenever in any action or proceeding in which the people of this state or any state officer, or any board of state officers, is or are sole plaintiff or defendant, an appeal has been or shall be brought from any judgment or order for or against him or them, in any court, such appeal shall have a preference in the supreme court and in the court of appeals, and may be moved by either party out of the order on the calendar. Section one hundred and four is hereby amended so as to read as follows: "If an action shall be commenced within the time prescribed therefor, and a judgment therein be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his heirs or representatives may commence a new action within one year after reversal." Section one hundred and sixteen is hereby amended by to guardian adding at the end thereof the following: "And in case an infant defendant, having an interest in the event of the action, shall reside in any state, with which there shall not be a regular communication by mail, on such fact satisfactorily appearing to the court, the court may appoint a guardian ad litem, for such absent infant party, for the purpose of protecting the right of such infant in said action, and on such guardian ad litem, process, pleadings and notices in the action may |