to the action, but not because the constable who had them in charge, urged them to give the verdict which was afterwards rendered. Baker v. Simmons, 29 Barb. 198. See also Taylor v. Everett, 2 How. 23. j. Failing to agree.-When a jury is discharged because they fail to agree, the time for the return of the new venire may be extended by consent. Fiero v. Reynolds, 20 Barb. 275. XII. THE VERDICT.-[Wait's Law and Pract. 624.] a Presence of the plaintiff.- The plaintiff should be present when the verdict is received. He should be called when the jury are prepared to render their verdict, and omission to call him when he is actually present and does not submit to a nonsuit, is not error. Douglass v. Blackman, 14 Barb. 381. The judgment will not be reversed if the plaintiff is present, and called, although no one appears and answers for him. McEachron v. Randles, 34 Barb. 301; Oakley v. Van Horn, 21 Wend. 305. Nor will it be reversed because the return fails to show that the plaintiff was called. Warring v. Loomis, 4 Barb. 484. See also Shore v. Raynor, 3 Denio, 77; Baum v. Tarpenny, 3 Hill, 75. b. Sunday.-Where the jury is impaneled before Sunday commences, it is proper to receive their verdict on Sunday. Houghtaling v. Osborn, 15 Johns, 119. c. Verdict a bar.-The plea of a verdict in a former suit is a good defense, though no judgment was actually given on it, for the justice is bound to give judgment according to the verdict. Hess v. Beekman 11 Johns, 457; Young v. Overacker, 2 id. 191; Felter v. Mulliner, id. 181. d. Special verdict.-A jury in a justice's court cannot render a special verdict. Wylie v. Hyde, 13 Johns, 249. e. General verdict.-Where the jury found for the defendant six cents damages and six cents costs, it was considered a verdict for the defendant, generally. Goodenow v. Travis, 3 Johns. 427. So a verdict of "no cause of action." Felter v. Mulliner, 2 Johns. 181. f. Improper verdict.-A verdict for "one mill" is a nullity, and a judgment entered on such a verdict will be reversed. Brown v. Smith 3 Caines, 81. g. Interest from day specified.— Where a jury rendered a verdict for $10 and interest from a day specified, it was held sufficient, and that the justice might compute the interest and enter judgment for the whole. Page v. Cady, 1 Cow. 115. XIII. NONSUIT. h. Costs.-The jury need not render a verdict for costs, they follow of course. Blake v. Millspaugh, 1 Johns. 316; Brown v. Smith, 3 Caines, 81. i. Against evidence.-Where the testimony clearly entitles one party to recover, but the jury do not find a verdict for such party, the judgment entered on such verdict will be reversed. Fish v. Skut, 21 Barb. 333; Rathbone v. Stanton, 6 Barb. 141; Herrick v. Stover, 5 Wend. 580. But where only nominal damages ought to have been given, the judgment will not be disturbed although it is against evidence. Stephens v. Wider, 32 N. Y. (5 Tiff.), 351; Cady v. Fairchild, 18 Johns. 129. j. Conflicting evidence.-Where the evidence is conflicting, the finding of the jury is conclusive. Rogers v. Ackerman, 22 Barb. 134; Dunckle v. Kocker, 11 id. 387; Rathbone v. Stanton, 6 id. 141; McDonald v. Edgerton, 5 id. 560. k. Excessive damages. The judg ment entered on the verdict of a jury, will excessive, unless it evinces partiality, prejunot be reversed on the ground that they are dice or passion. Haight v. Badgeley, 15 Barb. 499, (503.) Where the jury rendered a verdict for an amount greater than that laid in the declaration, and the plaintiff, instead of remitting the excess and asking judgment for the remainder, took judgment for the whole, it was held to be error. Fish v. Dodge, 4 Denio, 311. Whenever a jury renders a verdict for an amount beyond the amount claimed in the declaration, or for an amount beyond the jurisdiction of the justice, the excess may be remitted and judgment taken for the residue. id. Clark v. Denure, 3 Denio, 319; Barber v. Rose, 5 Hill, 76; Burger v. Kortright, 4 Johns. 414. 1. Reconsideration.-After it has been declared, but before it has been recorded, a jury may reconsider their verdict. Labar v. Koplin, 4 N. Y. (4 Comst.), 547; Blackley v. Sheldon, 7 Johns. 32. JUDGMENT.-[2 Wait's Law and Pract. 692.] consider. Peters v. Diossy, 3 E. D. Smith, 115; Young v. Rummell, 7 Hill, 503; Aff'g 5 Hill, 60; Shall v. Lathrop, 3 Hill, 237; Elwell v. M'Queen, 10 Wend. 521; Hess v. Beekman, 11 Johns. 511; Young v. Hubbell, 3 id. 430. In such case, although judgment be entered in the form of a nonsuit, it is a bar to another action for the same cause. id. Unless a motion for a nonsuit has pre viously been made, and decision thereon reserved. Seaman v. Ward, 1 Hilt. 52. See note XII, subd. a, supra. Where the justice changed the amount of the judgment entered, but afterward restored the docket to its original form, held that the judgment was not invalidated. Dauchy v. Brown, 41 Barb. 555. c. Erroneous nonsuit.-A nonsuit, although erroneous, puts an end to the action as effectually as though it had been at the ini. Judgment on the evidence.-The stance of the plaintiff. Lord v. Ostrander, 43 | judgment should be entered "on hearing the Barb. 337. proofs and allegations" of the parties. Stock ing v. Driggs, 2 Caines, 96. d. Judgment on verdict.-The justice must give judgment in accordance with the verdict. See note XII, subd. c, supra. He must render judgment, and enter the same in his docket immediately after the verdict is rendered. It seems that after a single day has passed it is too late. Beattie v. Qua, 15 Barb. 132; Sibley v. Howard, 3 Denio, 72; Hall v. Tuttle, 6 Hill, 38. e. Cause submitted.-Where the cause is tried without a jury and submitted to the justice for decision, he has four days in which to render judgment. Wiseman v. Panama Railroad Co., I Hilt. 300; Bloomer v. Merrill, 29 How. 259; S. C. 1 Daly, 485; Young v. Rummell, 7 Hill, 503; Aff'g S.. C. 5 id. 60; Watson v. Davis, 19 Wend. 371. Such time may be extended by consent, and where the parties agreed to appear within the four days to argue the case and they appeared on the fourth day for that purpose, it was held that the justice could take four days from the day of argument, in which to render his decision. Heidenheimer V. Wilson, 31 Barb. 636; Barnes v. Badger, 41 id. 98. f. Sunday.-Judgment cannot be entered on Sunday. Hoghtaling v. Osborn, 15 Johns. 119, and where a cause is submitted, and the justice takes time to decide, if the fourth day is Sunday, he must render judgment on the third day. Bissell v. Bissell, 11 Barb. 96. Judgment however may be rendered on Saturday against a person who keeps that day holy. Maxon v. Annas, 1 Denio. 204. g. Election day.-Where a cause was tried and submitted on a previous day, it was held no error for the justice to enter judgment on the day of a general election, Rice v. Mead, 22 How. 445. h. Judgment entered.-Judgment is a judical act, not a mental resolution, and must in some way be declared. Seaman v. Ward, 1 Hilt. 52. Where the justice made a note of his decision in his minutes it was held to be sufficient, Walrod v. Shuler, 2 N. Y. (2 Comst.) 134; Hall v. Tuttle, 6 Hill, 38. After the justice has entered judgment it is beyond his power to open it, even though it be entered for a wrong amount through inadvertance. Dauchy v. Brown, 41 Barb. 555; Hardy v. Seelye, 3 Abb. 103; S. C. 1 Hilt. 90; Camp v. Stewart, 2 E. D. Smith, 89; Sperry v. Major, 1. id. 361; People ex rel. Phelps v. Delaware Common Pleas, 18 Wend. 558; McGuinty v. Herrick, 5 id. 240, (246.) The remedy in such case is by an appeal from the judgment. id. and see Donnell v. Cornell, 1 Code R. N. S. 288. The justice must make his decision according to the facts proven, and not on his own knowledge of the case. Cornell v. Moulton, 3 Denio, 12; Wheeler v. Lampman, 14 Johns. 481; Locke v. Smith, 10 id. 250; Sprague v. Shed, 9 id. 140; Blanchard v. Richly, 7 id. 198; Rosekrans v. Van Antwerp, 4 id. 228; Burlingham v. Deyer, 2 id. 189; Stocking v. Driggs, 2 Caines, 96. See also, Fox v. Decker, 3 E. D. Smith, 150; Ely v. O'Leary, 2 id. 355. j. Judgment before trial ended.Where, during the trial, it appears that there is no evidence upon which the action can be maintained against a part of the defendants, the justice may discontinue the action as to such defendants. Moon v. Eldred, 3 Hill, 104; Fenn v. Timpson, 4 E. D. Smith, 276; S. C. 3 Hill, 106, note a; and Perkins v. Richmond, 17 How. 309. Judgment, however, should not be entered until the trial is ended. Where the justice stopped the plaintiff's counsel while he was summing up a case, and told him that he had already entered judg ment, it was held, on appeal, to be error. Prentiss v. Sprague, 1 Hilt. 428. k. Joint debtors.-Section 136 of the Code is not applicable to justices' courts. Perkins v. Richmond, 17 How. 309. Where a suit was cominenced by warrant, but only one of the defendants was brought before the justice, a judgment against both was reversed. Richards v. Walton, 12 Johns. 434. Where one of two defendants, sued by summons, appeared and confessed judgment against both, it was held good against the one who did not appear, until reversed. Ingalls v. Sprague, 10 Wend. 672. 1. Informality.-Although the judgment entered is informal, it will not be reversed if it is sufficiently intelligible. Thus, where it was "for $3.37, together with treble damages, making in all $5.89 for damages, and $2.66 costs, whole judgment for damages and costs $8.55," it was sustained. Tifft v. Culver, 3 Hill, 180. A "judgment for damages, with costs, $2.74," was sustained, Slaman v. Buckley, 29 Barb. 289. m. Collateral action. - A justice's judgment is to be deemed valid when questioned collaterally. Reno v. Pinder, 20 N. Y (6 Smith,) 298; Rev'g S. C. 24 Barb. 423, Skinnion v. Kelley, 18 N. Y. (4 Smith,) 355, Wesson v. Chamberlain, 3 N. Y. (3 Comst.) 331; Bromley v. Smith, 2 Hill, 517. n. Action on judgment.-Although a judgment be voidable for irregularities, yet it will uphold a judgment obtained in an action thereon. Humphrey v. Persons, 23 Barb. 314. This, although a judgment on which an action is brought, was recovered more than six years before suit commenced thereon. Such fact is no cause for reversing the judgment obtained in such action, if the defendant does not appear therein and plead the statute of limitations. Ib. -- 0. Specialty. A justice's judgment ranks as a specialty. Niles v. Totman, 3 Barb. 594; Witherwax v. Averill, 6 Cow. 589; James v. Henry, 16 Johns. 233. p. Statute of limitations.-A judgment of a justice of the peace recovered since the Code took effect, stands on the same footing with a judgment of the supreme court, so far as the statute of limitations is concerned. Nicholls v. Atwood, 16 How. 475. After the lapse of twenty years a judgment cannot be revived by stipulation. Thompson v. Jenks, 2 Abb. N. S. 229. q. The docket.-A justice's docket cannot be contradicted by parol proof. Smith v. Compton, 20 Barb. 262, (268); Hard v. Ship- | man, 6 Barb. 621; Niles v. Totman, 3 id. 594; Brintnall v. Foster, 7 Wend. 103. "The omission of a justice of the peace to certify in his docket that the amounts appear ing by such book to be due on the judgments therein, had not been paid to his knowledge; or to deposit such docket with the clerk of the town where he removed therefrom, did not effect the validity of the judgments in the docket, or vary the effect of the same as evidence. The statutes that required him to do so, are merely directory." Humphrey v. Persons, 23 Barb. 313; and see Carshore v. Huyck, 6 Barb. 583. If the clerk of one of the district courts of New York city should wholly neglect to make up his docket, the party recovering a judgment might prove its recovery by other evidence. Carpenter v. Simmons, 28 How. 12; S. C. 1 Rob. 360, (372). r. Transcript.-A transcript of a docket of one of the district courts of New York city, is admissible in evidence to prove a judgment in support of an execution thereon, although it omits to state that a transcript of such judgment had been given to file in the county clerk's office. Such filing may be shown by other evidence. Id. s. Payment.-Payment or a tender of the amount of a judgment to the justice, without dissent on the part of the plaintiff, is a satisfaction of the judgment. Dexter v Broat, 16 Barb. 337. Wait's Law and Pract. 707.] Indorsing any warrant issued from another county.... Summons for any offense relating to the internal police of the State, or in case of any special proceedings to recover the possession of lands or otherwise.... .... For drawing a record of conviction for contempt and other special cases... For execution upon any such conviction.. 50 25 ...... 5 Warrant of commitment for any cause. 25 Precept to summon a jury in special 25 cases 50 25 75 Receiving and entering the verdict of such jury...... 25 Hearing the matter concerning which such jury is summoned....... 50 25 10 View of premises alleged to be deserted..... 50 25 25 Hearing an application for a commission to examine witnesses.. 50 Drawing affidavits, applications and no- Renewal of execution.... Warrant for the apprehension of any 2.00 Swearing such jury............... For every order for such commission, and attending, settling and certifying interrogatories.. 25 Taking deposition of witnesses upon an order or commission issued by some court in this or a foreign State or territory (per folio).... 25 25 For making the necessary return and and certificate thereto ... Indorsement on affidavit in an action to recover possession of personal prop 50 erty.. Whenever a judgment shall be rendered in a court of justice of the peace, in civil actions, it shall be with costs of the suit; but the whole amount of the items of such costs, to be included in the entry of judgment, except charges for the attendance of witnesses from another county, shall not in any case exceed the sum of five dollars, unless such suit shall be adjourned more than once, at the request and on motion of the party against whom judgment shall be finally rendered, and in such case the costs of such additional adjournment | may be included in the entry of judgment, | and in all cases in which an issue is joined and trial had, and the damages recovered, shall exceed fifty dollars, or the plaintiff shall claim in his complaint a sum exceeding fifty dollars, and the defendant shall recover judgment, the prevailing party shall be entitled to costs not exceeding the sum of ten dollars, exclusive of witnesses' fees. Laws of 1866, ch. 692, §§ 1, 2. For the fees of justices in criminal cases, jurors' fees and witnesses' fees, see Laws of 1866, ch. 692. For constable's fees, etc., see Laws of 1869, ch. 820. XV. THE EXECUTION.-[2 Wait's Law and Pract. 714.] a. Returnable in sixty days.-The execution issued on a judgment in the justice's court, is returnable in sixty days. Bander v. Burley, 15 Barb. 604. Nor could the justice make the amendment Piper v. Elwood, 4 Denio, 165. An execution that called for its return "within sixty days," held good. Price v. Shipps, 16 Barb. 585. b. After five years.-After five years from the entry of the judgment, an execution cannot be issued. Morse v. Gould, 11 N. Y. (1 Kern.), 281; Swift v. Flanagan, 12 How. 438. An execution issued after that time would be void. Bates v. James, 3 Duer, 45. See contra, Bellinger v. Ford, 21 Barb. 311; S. C. before, 14 id. 250. c. Renewal.—A justice may from time to time, renew an execution issued by him, if it be not satisfied, by an indorsement thereon to that effect, signed by him, and dated when the same shall be made. If it has been satisfied in part, the indorsement shall express the sum still due. Such indorsement renews the execution in full force for sixty days from the date thereof. Laws of 1857, ch. 512. The issuing of an execution and its renewal ought to be considered the same thing, and neither can be done after five years from the entry of the judgment. Morse v. Gould, 11 N. Y. (1 Kern.), 281. An execution may be renewed after a levy has been made, if there is not sufficient time remaining to advertise and sell. A mere levy does not satisfy the judgment. People v. Hopson, 1 Denio, 574. It may be renewed without having any constable's return indorsed thereon. Visger v. Ward, 1 Wend. 551; Wickham v. Miller, 12 Johns. 320. d. Return.-Where, after a levy and sale under an execution, the judgment debtor sued for the property sold and recovered, it was held, that the constable could not, by a supplementary return, revive the judgment. Ross v. Hicks, 11 Barb. 481. e. Plaintiff dead.-An execution issued after the decease of the judgment creditor, by persons who have apparently no interest in the matter, is void. Bellinger v. Ford, 21 Barb. 311; S. C. before, 14 id. 250. f. Personal property.-Under an execution on a justice's judgment, a levy can "goods and chattels." only be made on Fisher v. Saffer, 1 E. D. Smith, 611. - g. After transcript filed. — After a judgment is docketed with the county clerk, that officer is the only one who can issue an execution thereon. Where a stipulation was given to the effect that the county clerk, or any other person "authorized to issue execution on the judgment," might issue such execution, it was held that the attorney of the judgment creditor was not authorized to issue the execution. Thompson v. Jenks, 2 Abb. N. S. 229. See a decision of the county court, contra, Simpkins v. Page, 1 Code R. 107. But an execution on a judgment recovered in one of the district courts of New York city, and docketed in the court of common pleas, may be issued by the attorney of the judgment creditor. Brush v. Lee, 3 Abb. N. S. 204; S. C. 36 N. Y. (9 Tiff.) 49; 34 How. 283; 1 Trans. App. 66; Aff'g S. C. 18 Abb. 398, (404), but not on this point. McDonald v. O'Flynn, 2 Daly, 42. So of executions on marine court judgments, after transcript filed with the county clerk. Ginochio v. Figari, 2 Abb. 185; S. C. 4 E. D. Smith, 227. h. Mandamus.-In a proper case the supreme court will issue a mandamus to compel the clerk of the marine court to issue an execution. The People ex rel. Debenetti v. The Clerk of New York Marine Court, 3 Abb. 309, (320); S. C. 13 How. 260, (267.) XVI. DEFAULTING WITNESS OR JUROR.-[2 Wait's Law and Pract. 640, 646.] a. Punishment.-A justice has power to punish a defaulting witness or juror, even after the suit has terminated in which such default occurred. Robbins v. Gorham, 25 N. Y. (11 Smith), 588; Aff'g S. C. 26 Barb. 586. b. Attachment. The application for an attachment against a witness for non-attendance, need not necessarily be founded on a written affidavit; an oral oath is sufficient Baker v. Williams, 12 Barb. 527. CHAPTER I. II. TITLE VII. Of justices' and other inferior courts in cities. The marine court of the city of New York. The justices' courts in the city of New York. III. The justices' courts of cities. IV. General provisions. CHAPTER I. The marine court of the city of New York. §65. [58.] Its jurisdiction. This section has been entirely abrogated by subsequent laws. As to the origin, powers, etc., of this court, see Laws of 1813, chap. 86, § 85, etc.; 1819, chap. 71; 1844, chap. 148; 1849, chap. 144, id. 377; 1852, chap. 389; 1853, chap. 529; id. 617; 1857, chap. 295; 1858, chap. 334; 1862, chap. 484; 1865, chap. 436; 1866, chap. 701; 1867, chap. 784. a. Marine court judgments. - Section 375 of the Code does not apply to the marine court of New York. Prince v. Cujas, 7 Rob. 76. See note II, subd. c, § 68, post. After judgment is obtained in the marine court, a transcript may be filed with the county clerk, an execution issued, and supplementary proceedings be had thereon. Ritterband v. Maryatt, 12 N. Y. Leg. Obs. 158. b. Assault and battery.-The marine court of New York city has jurisdiction of an action for an assault and battery, committed on board a merchantman, when the vessel was within the United States, and not upon the high seas. Farley v. De Waters, 2 Daly, 192. c. Not a justices' court.-See § 67, note I, post. CHAPTER II. Justices' courts in the city of New York. § 66. [59.] (Am'd 1870.) Their jurisdiction. Stenographer. The district courts of the city of New York shall have such jurisdiction as is provided by special statutes; and proceedings under article two,.of title ten, of chapter eight, of part three, of the Revised Statutes, may be had before any justice of such courts, without regard to the district in which the premises are situated; and the affidavits used in such proceedings may be taken before any officer authorized by law to take affidavits. And the justices of the district courts of the city of New York are hereby respectively authorized to appoint a stenographer in their several courts, whose duty it shall be to take full stenographic notes of all proceedings in trials had therein; he shall hold his office during the pleasure of the justice of the court, and shall receive a salary of two thousand dollars per annum out of the city treasury. The clerks of the said district courts, shall collect, in all cases in which a trial is had, the sum of one dollar, in addition to the other fees authorized by law, and shall pay the same into the city treasury, in like manner with other fees collected by them. This section was, at one time, in effect repealed by Laws of 1851, ch. 147, 196, 514; Laws of 1852, ch. 54, 324; and the Laws of 1857, ch. 344, which see for the organization, etc., of these courts. But ch. 741, § 4, of the Laws of 1870 has restored the section in its present form. |