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OHAP. XI.

CHAP 270.
AN ACT in relation to special proceedings.

PASSED April 15, 1854. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

$ 1. An appeal may be taken to the general term of the supreme court, or the superior court, or court of common pleas of the city of New York, from any judgment, order, or tinal determination made at a special term of either of said courts, in any special proceeding therein; such an appeal, however, shall not stay the proceedings, unless the court, or a judge thereof, so order, which order may be upon such terms, as to security or otherwise, as may be just; such security not to exceed the amount required on an appeal to the court of appeals.

$ 2. Sections three hundred and twenty-seven, three hundred and twenty-nine, three hundred and thirty, and three hundred and thirty-two of the Code of Procedure shall apply to appeals in special proceedings.

S3. In special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed, shall be at the rate allowed for similar services in civil actions, and all appeals heretofore had or taken, and undetermined in special proceedings, shall be as valid and effectual as though had or taken under the provisions of this act.

1

CHAP 202. AN ACT to extend the provisions of the Code of Procedure to forfeited recognizances.

PASSED April 9, 1855. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

$ 1. All the provisions of the Code of Procedure are hereby applied to all recognizances forfeited in any court of general session of the peace, or of oyer and terminer, in any of the counties of this state.

S 2. All laws or parts of laws, or provisions of statutes, in any wise conflicting with such application of the provisions of the Code of Procedure to the said forfeited recognizances, are hereby repealed.

S 3. In no case whatsoever, upon proceedings upon forfeited recognizances, shall any fees, or costs whatsoever be chargeable to the mayor, commonalty, alderman, or supervisors of

PART III.

the city and county of New York, by the officer prosecuting the same.

$ 4. This act shall take effect immediately.

$ 69 amended.

may claim immediate

CHAP. 131.
AN ACT to amend section fifty-three of the Code of Pro-

cedure, and to extend the jurisdiction of Justices' Courts,
and to provide for proceedings therein.

Passed March 30, 1860; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

S 1. Section fifty-three of the Code of Procedure is hereby amended by adding thereto the following subdivision, to wit:

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. Plaintiff

$ 2. The plaintiff in such action, at the time of issuing the

summons, but not afterwards, may claim the immediate delidelivery or very of such property as hereinafter provided. property. Amdavit.

S 3. 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 by ahdavit

. 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.

S 4. On receipt of such affidavit, and an undertaking, in perty mayn writing, executed by one or more sufficient sureties, to be receipt of approved by the justice of the peace before whom such action vit. 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

What must be shown

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on

CHAP. XI.

constables,

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.

$ 5. The constable to whom said affidavit, indorsement and Daty of summons shall be delivered, shall forth with take the property &c. 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.

$ 6. The defendant may at any time after such service, and Defendant at least two days before the return day of said summons, serve notice, &c. 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. $ 7. At any time before the return day of said summons, Defendant

may require the said defendant may, if he has not excepted to plaintiff's return of sureties, require the return of said property to him, upon upon cer. giving to the plaintiff, and filing same with the justice, a writ- tioneconditen 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.

$ 8. The qualification of sureties and their justification Qualincaunder this act, shall be the same as provided in sections one sureties.

may serve

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PART III.

and 216, how to

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hundred and ninety-four and one hundred and ninety-five of

the Code, in respect to bail on arrest in the supreme court. $$ 214, 215

S 9. Sections two hundred and fourteen, two hundred and

fifteen and two hundred and sixteen of the Code, shall apply apply.

to proceedings and actions brought under this act, substi-
tuting the word constable for the word sheriff whenever it
occurs in either of said sections.

$ 10. The actions so commenced shall be tried in all respects how tried.

as other actions are tried in justice courts.

$ 11. In all actions for the recovery of the possession of
jury may
autoas value personal property, as herein provided, if the property shall
of property 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 pre-
vailing party by reason of the taking or detention thereof, and
the justice shall render judgment accordingly, with costs and

disbursements.
Return of a S 12. If it shall appear by the return of a constable that he
constable
showing

had taken the property described in the plaintiff's affidavit, that defen: and that defendant cannot be found, and has no last place of could

abode in said county, or that no agent of defendant could be found, &c.

found on whom service could be made, the justice may pro-
ceed with the cause in the same manner as though there had
been a personal service.

$ 13. For the indorsement on said affidavit, the justice shall
receive an additional fee of twenty-five cents, which shall be
included in the costs of the suit.

not be

Fee for indorsement.

CHAP. 459.
AN ACT to amend the Code of Procedure.

PASSED April 16, 1860.
The People of the State of New York, represented in Senate
and Assembly, do enact as follows:

[The first 12 sections of this act make amendments to the Code, which are inserted in their proper places.]

$ 13. The commissioners of the Code appointed by the act

of April sixth, one thousand eight hundred and fifty-seven, prepare and are hereby authorized and requested to prepare and publish, publish a

in the same manner as their reports, a book of forms, adapted
to the Code of Procedure, and the forms thus published shall
be submitted to the next legislature.

Commis-
Bioners of
Code to

book of forms.

CHAP. XL

may be set

CHAP. 460.
AN ACT to amend the Code of Procedure, and to extend

the term of office of the Commissioners of the Code,
appointed under the act of April sixth, eighteen hundred
and fifty-seven, and to repeal section thirty-seven, article
second, title second, chapter first, part third, of the Re-
vised Statutes.

PASSED April 23, 1862; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

[The residue of this act — the whole chapter containing 39 sections - amends sundry sections of the Code. The amendments will be found in their proper places.]

$ 28. Whenever costs are awarded to the appellant he shall In awardbe allowed to tax as part thereof the costs and fees paid to what may the justice on making the appeal as disbursements, in addi- be allowed. tion to the costs in the appellate court; and when the judgment in the suit before the justice was against such appellant, he shall further be allowed to tax the costs incurred by him, which he would have been entitled to recover in case the judgment below had been rendered in his favor.

$ 29. If, upon an appeal, a recovery for any debt or dama- When costs ges be had by one party, and costs be awarded to the other off against

damages. party, the court shall set off such costs against such debt or damages, and render judgment for the balance.

S 30. The following fees and costs, and no other except fees Fees and of officers, disbursements and witnesses' fees, shall be allowed what alon appeals to the party entitled to costs as herein provided, when the new trial is in the county court.

For proceedings before notice of trial, ten dollars.
For all subsequent proceedings before trial, seven dollars.
For trial of an issue of law, ten dollars.
For every trial of an issue of fact, fifteen dollars.
For argument of a motion for a new trial on a case or bill
of exception, ten dollars.

In all cases, to either party, for every term not exceeding five, at which the appeal is necessarily on the calendar, and is not tried or is not postponed by the court, seven dollars.

In other appeals the costs shall be as follows: To the appellant on reversal, fifteen dollars; to the respondent on the affirmance, twelve dollars. If the judgment appealed from be reversed in part and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the appellate court may award, not exceeding ten dollars. If the appeal be dismissed for want of prosecution, as provided by section three hundred and sixty-four, no cost shall be allowed to either party. In every appeal, the justice of the

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