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necessary to the adverse party in consequence of such amendment, an adjournment shall be granted. The court may also, in its discretion require as a condition of an amendment, the payment of costs to the adverse party.
Execution may be issued on a judgment, heretofore or hereafter rendered in a justice's court, at any time within five years after the rendition thereof, and shall be returnable sixty days from the date of the same.
If the judgment be docketed with the county clerk, the execution shall be issued by him to the sheriff of the county, and have the same effect, and be executed in the same manner, as other executions and judgments of the county court, except as provided in section 63.
The court may, at the joining of issue, require either party at the request of the other, at that or some other specified time, to exhibit his account on demand, or state the nature thereof as far forth as may be in his power, and in case of his default preclude him from giving evidence of such parts thereof as shall not have been so exhibited or stated.
The provisions of this act, respecting forms of action, parties to actions, the rules of evidence, the times of commencing actions, and the service of process on corporations, shall apply to these courts.
Note to rule 2–The provision for verifying pleadings is incapable of being applied to oral pleadings. It is only those subscribed by the party that are to be verified, and the oath of a party to his verbal complaint or answer would be idle in the extreme. Williams v. Price, 2 Sand. S. C. R. 229. An answer of title must be in writing. See section 55 of this code. Note to rule 4.—“The notice authorized by this rule, is not annexed to the answer; but is contained in it. In other words, it is a somewhat less formal allegation of the same facts, and no demurrer is allowed, or reply required to it.” Jewett v. Jewett, 6 Pr. R., 190, per Allen J. Note to rule 5.-Great latitude is allowed in pleadings in courts of justices of the peace, and courts coustrue them liberally. Ross v. Hamilton. 3 Barb. S. C. R., 609. Note to rule 8.-This provision was not in the code of 1848, and a question arose on this point. Smith or Swift v. Falconer, 1 Code Rep. 120; 2 Sand. S. C.R., 640. Muscott v. Miller, 1 Code Rep, 123. Everitt v. Lisk, ib. 71. The plaintiff cannot take judgment for more than the amount mentioned in the summons. Partridge v. Gould, 1 Code Rep, 85; and 2 Sand. S. C. R., 227, sub. nom. Partridge v. Thayer. The court of common pleas for the city and county of New-York held, that where in a justice's court a desendant appears and puts in an answer, the provisions of section 168 apply, and therefore where a defendant appeared and put in an answer of payment and set-off, held, that the plaintiff's demand was thereby admitted and did not require to be proved. Young v. Moore, 2 Code Rep. 243. See note to rule 2 of this section. DeCourcy v. Spalding, 3 Code Rep., 16. Note to rule 11.-The amendment to this rule is the omission at the end of these words: “be fixed by the court; but no amendment shall be allowed after a witness is sworn on a trial, when an adjournment thereby will be made necessary.” Justices' courts possess the same power as to amendments as courts of record. Fulton v. Heaton, 1 Barb. S. C. R., 552, and see section 173 of this code. Note to rule 13.−An attorney at law may issue an execution to enforce the collection of a judgment rendered by a justice of the peace, in cases where a transcript has been filed and judgment docketed in the county clerk's office. Simkins v. Page, 1 Code Rep. 107. Note to rule 14—See section 65 of this code, and note. Note to rule 15–See note to rule 2 of this section. The section corresponds to section 57 in the code of 1848. That section was decided not to extend to the effect and operation of pleadings, and not to make sections 143 and 148 (ss. 121, 127.) applicable to pleadings in justice's courts. Cornell v. Smith, 2 Sand. S. C. R, 290. But section 168 has been held to apply to pleadings in justices' courts. See note to section 168 of this code. Prior to the code going into effect, a plea of puis darrein continuance was held, the only means the defendant had of introducing matters of defence arising after the issue joined and before the trial. Ressequie v. Brownson, 4 Barb. S.C. R., 541; and where a defendant tendered such a plea and it was refused, and he appeared on the trial and examined witnesses, it was held on appeal that he had not thereby waived his right to such plea. Ib. It is presumed that where such a plea would have been proper, an amendment of the answer already made will be allowed. See Houghton v. Skinner, 5 Pr. R. 420. Whenever a judgment is rendered by a justice against any party (unless where it is otherwise expressly provided), it must be with costs of the suit; but the whole amount of all the items of such costs are not, in any case, to exceed five dollars. The costs of a commission to examine foreign witnesses may be taxed in the judgment, although the same exceed the sum of five dollars. (Laws, 1841, p. 112.)
Of Justices and other Inferior Courts in Cities.*
Chapter I. Marine court in New-York city.
CHAPTER I. Marine Court of Wew York City. § 65. [58.] (Amended 1849.) Jurisdiction.—The marine
* “Both parties have argued this point on the supposition that the provision of the
court of the city of New York shall have jurisdiction in the following cases, and no other: 1. In actions similar to those in which courts of justices of the peace have jurisdiction, as provided by sections 53 and 54. 2. In an action upon the charter or a by-law of the corporation of the city of New York, where the penalty or forfeiture shall exceed twenty-five dollars, and not exceed one hundred dollars. 3. In an action between a person belonging to a vessel in the merchant service, and the owner, master, or commander thereof, demanding compensation for the performance, or damages for the violation, of a contract for services on board such vessel, during a voyage performed, in whole or in part, or intended to be performed, by such vessel, though the sum demanded exceed one hundred dollars. 4. In an action by or against any person belonging to or on board of a vessel in the merchant service, for an assault and battery or false imprisonment committed on board such vessel, upon the high seas, or in a place without the United States, of which the ordinary courts of law of this State have jurisdiction, though the damages demanded exceed one hundred dollars. But nothing in this or the last preceding subdivision of this section, shall give the court power to proceed in any of the cases therein referred to, as a court of admiralty or maritime jurisdiction. By laws of 1852, cap., 389, p. 647, provision is made (ss. 1, 2, 3, 4, 5) for the election of three justices of this court, the classification of such justices and their terms of office, the appointment of a clerk, and the compensation of such justices and clerk. Section 6 provides that “the words twenty-five dollars” first occurring in the 134th section of the act entitled “an act to reduce several laws relating particularly to the city of New York into one act,” passed April 9, 1813, is so amended as to read “fifty dollars.” And by Section 8 the court may issue commissions to take testimony of witnesses residing out of the city and county of New York and to be read on the trial of actions pending in said court, in the same manner as justices of the peace now by law are authorized to do, which power is extended so as to authorize commissions to issue out of the State. And by Section 9. In all cases in which the jurisdiction of the marine court is now limited, so that there can be no recovery therein for a larger amount than $100, the jurisdiction is extended so that in such actions the recovery of either party may here
after be tothe amount of $250 with the costs as now allowed by law in said court; and in addition thereto in cases of default where the defendant does not appear, when
revised statutes relating to justices’ courts apply to this city. By a section at the end of that title, it is expressly provided that that title shall not apply to the courts in New York. The laws governing these courts will be found in the 2d revised laws of 1813.” Jackson v. Wheedon, 3 Code Rep. 186.
such recovery shall exceed $100, the sum of $5; and in all such cases where an issue shall be joined, and a trial had, the sum of $10. And by Section 11. If in any suit in such court, the plaintiff makes oath that he or she cannot, for the want of some material evidence or witness, safely proceed to trial, the court may in its discretion and upon such terms as may be deemed proper, postpone the trial for such reasonable time not exceeding three calendar months as will enable the plaintiff to procure such evidence or witness. In a case arising under the code of 1848, the plaintiffs suing in this court were ordered to furnish the defendant with a bill of particulars, and on the plaintiffs failing to furnish such bill, the court entered a judgment of non pros. On appeal to the superior court the judgment was reversed, the court holding that since the code took effect there was no longer any provision or practice requiring a bill of particulars to be given. Section 135 (now 158) was not applicable to the complaint below. There was no allegation nor any reasonable inference that the plaintiff's demand consisted of more than 20 items. It is clear the court had not power to non pros. the plaintiff, for refusing to deliver a bill of particulars. Winslow v. Kierski, 2 Sand. S. C. R., 304; 3 Code Rep., 201 ; and see sub-division 14 of section 64. Where a non-resident was sued by a long summons, and appeared on the return day and answered, consented to an adjournment, appeared at the adjournment, and then objected to the jurisdiction of the court, it was held that the objection came too late, and that it might well be inferred from the defendant's acts, that he had agreed to enter an action without process. , Robinson v. West, 1 Sand. S. C. R., 19. On an appeal from this court it was objected that the judgment was not actually entered within four days of the hearing, the court said:—We do not think the objection that the judgment was not actually entered until after four days, a sufficient ground of reversal. The statute requiring justices to enter judgment in their dockets within four days, does not apply to the marine court. The judgment was pronounced within the period limited by the act; and, although it may be true that the time for appealing would not begin to run until the judgment was actually rendered, we think the statute was sufficiently complied with, Cohen v. Coit, 3 Code Rep., 23. To set aside judgment in the marine or justice's courts, where the defendant has failed to appear, an appeal must be brought, and the application for relief made upon the justices' return and affidavits. The court of common pleas has no jurisdiction to entertain a motion for relief in such cases, until the judgment is before it upon appeal, Donnell v. Cornell, 1 Code Rep., N. S., 288. In Bryan v. Sullivan (not reported) the superior court held that the provisions of the revised statutes as to justices' courts, do not apply to the marine court. A party claiming a jury trial in that court, must demand a jury on the day on which issue is joined, and before an adjournment. The subsequent amendment of the pleadings did not alter the rights of the parties in this respect. And see Jackson v. Wheedon, 3 Code Rep., 186.
§ 66.  (Amended 1849) Jurisdiction.—The assistant justices' courts in the city of New York, shall hereafter be styled the justices' courts in the city of New York, and shall have jurisdiction in the following cases:
1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54.
2. In an action upon the charter or a by-law of the corporation of the city of New York, where the penalty or forfeiture shall not exceed one hundred dollars.
See Laws of 1848, c. 153, p. 249. The statute permitted a non-resident plaintiff to sue in a justice's court by a short summons, having not less than two nor more than four days to run. He could also sue by the ordinary summons, having not less than six nor more than twelve days to run. Such a plaintiff sued by a summons dated January 12, and returnable Monday, o, 17; and it was held, that such a summons conferred no jurisdiction. King v. Dowdall, 2 Sand. S.C.R., 131, 3 Code Rep., 200. An assistant justice has jurisdiction where the plaintiff resides in his district: thus where the plaintiff resided in the eighth ward, being one of the wards for which the justice was appointed, and one of the defendants resided in Queen's County, and the other in the twelfth ward, it was held, the justice had jurisdiction. Murphy v. Mooney, 2 Sand. S. C. R., 288, 3 Code Rep., 200. But an assistant justice elected under the act of 1848, has no jurisdiction where the defendant and one of the plaintiffs reside in the city, and neither of the parties reside in a ward within the justice's district. Cornell v. Smith, 2 Sand. S. C. R., 290, 3 Code Rep., 201. Appearing and pleading without objection, do not waive the defect, nor confer jurisdiction, the statute being peremptory that the justice shall dismiss the cause. Ib. Hence an objection that a justice's court has not jurisdiction of the person is not waived by an answer omitting to raise it. Ib. The justice need not wait an hour after the time for appearance mentioned in the summons, before proceeding with the cause. Klenck v. DeForest, 3 Code Rep., 185. See. 2 R. S., 323. And by laws of 1848, p. 404, it is enacted, that the justices' courts of the city of New-York, established by the act in relation to justices' and police courts in the city of New-York, passed March 30, 1848, shall be designated as the assistant justices' courts in the city of New-York, and such courts shall be deemed to be the courts referred to in the code, as the assistant justices' courts of the city of New-York, and shall have the jurisdiction mentioned in section 59 (now 66) of that act. By an act passed in the session of 1852, these courts are now styled “District Courts in the city of New-York.” Laws of 1852, p. 471. Clerks in justices' courts in the city of New-York, may take affidavits, and administer oaths in said city, with the like effect as clerks in courts of record. Laws of 1851 p. 370 ; and see laws of 1851, pp. 271—957. Laws of 1852, p. 51. Whenever any action in said courts has been commenced by actual service of process, or where the defendant has appeared, either party may have the testimony of any witness—who is about to leave the city and county of New-York, and will probably continue absent when the testimony is required—taken conditionally, to be used on the trial of such action in the same manner, and with like effect, as provided by article i. title 3, chapter 7, of the revised statutes, entitled “of taking conditionally the testimony of witnesses,” (Laws of 1852, p. 471.)
The Justices’ Courts of Cities.
§ 67. [60.] Jurisdiction.—The justices' courts of cities shall have jurisdiction in the following cases, and no other:
1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54.
2. In an action upon the charter or by-laws of the corporations of their respective cities, where the penalty or forfeiture shall not exceed one hundred dollars.
See as to these courts 2 R. S., 323. Laws of 1848, p. 66, enact that all the provisions of the act entitled “An act in relation to fraudulent debtors,” passed March