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trial, or during the trial, or upon appeal, when by such amendment substantial justice will be promoted. If the amendment be made after the joining of the issue, and it be made. to appear to the satisfaction of the court, by oath, that an adjournment is 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.

12.

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.

13.

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.

14.

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.

15.

The provisions of this act, respecting forms of action, parties to actions, the rules of evidence, and the times of commencing actions, 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 Saud. S. C. R. 229. An answer of title must be writing. See section 55 of this code.

Note to rule 5.-Great latitude is allowed in pleadings in courts of justices of the peace, and courts construe 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 defendant 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. Justice's 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. This 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 justices' 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.)

TITLE VII.

Of Justices and other Inferior Courts in Cities.*

CHAPTER I. Marine court in New-York city.

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Marine Court of New-York City.

§ 65. [58.] Jurisdiction.-The marine court of the city of

"Both parties have argued this point on the supposition that the provision of the

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.*

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 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 plaintiffs' 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.

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, Code Rep. 186.

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.

CHAPTER II.

Justices' Courts, in New-York City.

$ 66. [59.] 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, January 17; and it was held, that such a summons conferred no jurisdiction. King v. Dowdall, 2 Sandf. 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. De Forest, 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.

CHAPTER III.

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 30th, 1838, shall extend to judgments rendered before the justices' courts of the cities of Albany, Troy, and Hudson.

And Laws of 1849, p. 23, enact that the courts of justices' of the peace in the city of Rochester, shall have jurisdiction in actions upon the charter, or by-laws of said corporation, where the penalty or forfeiture shall not exceed $100. Are these provisions repealed?

CHAPTER IV.

General Provisions.

§ 68. [61.] (Amended.)—Sections 55 to 64 applicable to this title. The provisions of sections 55 to 64, both inclusive, relating to forms of action, to pleadings, to the times of commencing actions, to the rules of evidence, to filing and docketing transcripts of judgments, to their effect and the mode of enforcing them, and to proceedings where title to real property shall come in question, shall apply to the courts embraced in this title; except that after the discontinuance of the action in the inferior court, upon an answer of title, the new action may be brought either in the supreme court, or in any other court having jurisdiction thereof; and except, also, that in the city and county of New-York, a judgment of twentyfive dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien, and be enforced in the same manner

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