§ 36. [42.] By whom held.

A general term shall be held by at least two of the judges of those courts respectively, and a special term by a single judge.

§ 37. [43.] Judgments, where given.

Judgments upon appeal shall be given at the general term; all others, at the special term.

§ 38. [44.] Judgment, how pronounced.

The concurrence of two judges shall be necessary to pronounce a judgment at the general term. If two do not concur, the appeal shall be reheard.

§ 39. Crier.

A crier shall be appointed by the superior court of the city of New York, and by the court of common pleas for the city and county of New York, respectively, to hold his office during the pleasure of the court. He shall receive a salary, to be fixed by the supervisors of the city and county of New York, and paid out of the county treasury.

§ 40. Superior Court.

The superior court of the city of New York shall, from the 1st day of May, 1849, consist of six justices.

[Sections forty-one to forty-five, inclusive, obsolete.]

§ 46. Terms.

A general term of the superior court may be held by any two of the six justices thereof, and a special term by any one of them; and general and special terms, one or more of them, may be held at the same time.

§ 47. [As am'd Laws 1851, p. 8.] Certain suits may be transferred.

All civil suits at issue at the time of the passage of this act, that from and after the 1st of May, 1849, shall be placed upon the calendar of the supreme court, at any general or special term thereof to be held in the city of New York, and which shall be in readiness for hearing on questions of law only, or are equity cases, may by an order of that

court, or of the judge holding such special term, be transferred to the said superior court of the city of New York, and to be heard at the general terms thereof.

§ 48. Jurisdiction of transferred suits.

The said superior court shall have jurisdiction of every suit so transferred to it, and may exercise the same powers in respect to every such suit, and any proceedings therein, as the supreme court might have exercised, if the suit had remained in that court.

[Section forty-nine was repealed, Laws 1851, p. 8.]

§ 50. Appeal.

Appeals from the judgments of the superior court in such suits may be taken to the court of appeals, in the same manner as from the judgments of the superior court in actions originally commenced therein.

§ 51. Section applied.

The provisions of section twenty-eight of this act shall apply to the said superior court.

§ 52. [45.] (Am'd 1849.) Repeal of existing provisions.

The provisions contained in sections two, three, and four, of the article of the revised statutes entitled, "Of the jurisdiction of justices'

courts," as amended by sections one and two of the act concerning justices' courts, passed May 14, 1840, and the provisions contained in sections fifty-nine to sixty-six of the same article, both inclusive, are repealed; and the provisions of this title substituted in place thereof. But this repeal shall not affect any action heretofore commenced in a court of a justice of the peace.

53. [46.] (Am'd 1849, 1851, 1860, 1861, 1862, 1865.) Jurisdiction.

Justices of the peace shall have civil jurisdiction in the following actions, and no others, excepting as in the second section [of Laws of 1861, ch. 158] it is provided:

1. In actions arising on contracts for the recovery of money only, if the sum claimed does not exceed two hundred dollars.

2. An action for damages for injury to rights pertaining to the person, or to the personal or real property, if the damages claimed do

not exceed two hundred dollars.

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

4. An action commenced by attachment of property, as now provided by statute, if the debt or damages claimed do not exceed two hundred dollars.

5. An action upon bond conditioned for the payment of money, not exceeding two hundred dollars, though the penalty exceed that sum, the judgment to be given for the sum actually due. Where the payments are to be made by instalments, an action may be brought for each instalment as it becomes due.

6. An action upon a surety bond taken by them; though the penalty or amount claimed exceed two hundred dollars.

7. An action upon a judgment rendered in a court of justice of the peace, or by a justice or other inferior court in a city where such action is not prohibited by section seventy-one.

8. To take and enter judgment on the confession of a defendant, where the amount confessed shall not exceed five hundred dollars, in the manner prescribed by article eight, title four, chapter two, of part three, of the revised statutes.

9. An action for damages for fraud in the sale, purchase, or ex

change of personal property, if the damages claimed do not exceed two hundred dollars.

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.

The plaintiff in such action, at the time of issuing the summons, but not afterwards, may claim the immediate delivery of such property as hereinafter provided.

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 possession, of the property claimed, particularly describing the 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.

On receipt of such affidavit, and an undertaking, in writing, executed by one or more sufficient sureties, to be 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.

The constable to whom said affidavit, indorsement, and summons shall be delivered, shall forthwith take the property 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.

The defendant may at any time after such service, and at least two days before the return-day of said. summons, serve 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 disbursements.

At any time before the return-day of said summons, the said defendant may, if he has not excepted to plaintiff's sureties, require the return of said property to him, upon giving to the plaintiff, and filing same with the justice, a written 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.