SEC. 7. Being a member of legislature or judge. 8 & 9. Within what towns actions to be brought. 10. Aldermen in Albany may try certain actions. ART. 1. hold courts. § 1. Every justice of the peace elected in any town of this Justices to state, or appointed for any city in which special courts are not established by law, is hereby authorised to hold a court for the trial of all actions in the next section enumerated, and to hear, try and determine the same, according to law and equity; and for that purpose, where no special provision is otherwise General made by law, such court shall be vested with all the necessary powers which are possessed by courts of record in this state. Laws of 1824, 279, § 1; 11 N. Y., 233; 26 B.. 592; 22 B., 139; 21 B., By § 52 of the Code of Procedure Sections 2, 3 & 4 of this article "and Now as there are no "Sections 59 to 66" in this article it can only be powers certain sec $ 52. The provisions contained in sections two, three, and Repeal of four, of the article of the Revised Statutes entitled, "Of the tions. 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courts, passed May 14, 1840, and the provisions contained in sections 59 to 66 of the same Article, both inclusive, are repealed, and the provisions of this title substituted in place thereof.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. tion. $53. Justices of the peace shall have civil jurisdiction in Jurisdicthe following actions, and no others, excepting as in the second section 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: TITLE 4 7. An action upon a judgment rendered in a court of justice of the peace, or by a justice or other inferior court in the city where such action is not prohibited by section 71: 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 8, title 4, chapter 2, of part 3, of the revised statutes: 9. An action for damages for fraud in the sale, purchase, or exchange 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 afterward, 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 endorse 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, endorsement, 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. The qualification of sureties, and their justification under this act, shall be the same as provided in sections one hundred and ninety-four and one hundred and ninety-five of the Code in respect to bail on arrest in the supreme court. 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. ART. 1. TITLE 4. Excluded jurisdiction. Title to lands. Underta king to be given. The actions so commenced shall be tried in all respects as other actions are tried in justices' courts. In all actions for the recovery of the possession of personal property, as herein provided, if the property shall not have been delivered to plaintiff, or the defendant, 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. If it shall appear by the return of a constable that he has taken the property described in the plaintiff's affidavit, and that 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. For the endorsement on said affidavit, the justice shall receive an additional fee of twenty-five cents, which shall be included in the costs of the suit. 54. But no justice of the peace shall have cognizance of a civil action 1. In which the people of this state are a party, excepting for penalties not exceeding one hundred dollars; 2. Nor where the title to real property shall come in question, as provided by sections 55 to 62, both inclusive; 3. Nor of a civil action for an assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction; 4. Nor of a matter of account where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars; 5. Nor of an action against an executor or administrator as such. $ 55. In every action brought in a court of justice of the peace, where the title to real property shall come in question, the defendant may, either with or without other matter of defence, set forth in his answer any matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his attorney, and delivered to the justice. The justice shall thereupon countersign the same and deliver it to the plaintiff. S 56. At the time of answering, the defendant shall deliver to the justice a written undertaking, executed by at least one sufficient surety, and approved by the justice, to the effect that if the plaintiff shall, within twenty days thereafter, deposit with the justice a summons and complaint in an action in the supreme court for the same cause, the defendant will, within twenty days after such deposit, give an admission in writing of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking shall further provide, that he will, at all times, render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable not exceeding one hundred dollars. ART. 1. continued. $57. Upon the delivery of the undertaking to the justice, Action disthe action before him shall be discontinued, and each party shall pay his own costs. The costs so paid by either party shall be allowed to him, if he recover costs in the action to be brought for the same cause in the supreme court. If no such action be brought within thirty days after the delivery of the undertaking, the defendant's costs before the justice may be recovered of the plaintiff. tinued. $58. If the undertaking be not delivered to the justice, he Action conshall have jurisdiction of the cause, and shall proceed therein; and the defendant shall be precluded, in his defence, from drawing the title in question. $ 59. If, however, it appear on the trial, from the plaintiff's Tb. own showing, that the title to real property is in question, and such title shall be disputed by the defendant, the justice shall dismiss the action, and render judgment against the plaintiff for the costs. Supreme $ 60. When a suit before a justice shall be discontinued by Action in the delivery of an answer and undertaking, as provided in Court. sections 55, 56, and 57, the plaintiff may prosecute an action for the same cause in the supreme court, and shall complain for the same cause of action only on which he relied before the justice; and the answer of the defendant shall set up the same defence only which he made before the justice. S61. If the judgment in the supreme court be for the Costs. plaintiff, he shall recover costs; if it be for the defendant, he shall recover costs, except that upon a verdict he shall pay costs to the plaintiff, unless the judge certify that the title to real property came in question on the trial. causes of S 62. If, in an action before a justice, the plaintiff have Several several causes of action, to one of which the defence of title action. to real property shall be interposed, and as to such cause the defendant shall answer and deliver an undertaking, as provided in sections fifty-five and fifty-six, the justice shall discontinue the proceedings as to that cause, and the plaintiff may commence another action therefor in the supreme court. As to the other causes of action, the justice may continue his proceedings. All actions pending in any county court on the seventh day of May, eighteen hundred and fifty-eight, in all cases in which a plea of title was interposed in actions originally commenced in a justice's court, are transferred to and vested in the supreme court, with full power and jurisdiction to proceed therein, as commenced in said supreme court, by reason |