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All defects in the process are waived by an appearance and answering without objection. Heilner vs. Barras, 3 Code Rep. 17. But see Cornell & Wilbur vs. Smith, 2 Sand. 290, as to assistant justices' courts in NewYork.
b The plaintiff may amend his complaint on an adjourned day, even in a point touching the jurisdiction of the court. Woolley vs. Wilber, 4 Denio, 570.
c The execution may be renewed, on the last day it has to run, so as to retain the lien thereof upon property levied on by the constable, sufficient to satisfy the execution, and which he has on hand for want of bidders. Chapman vs. Fuller and Wark, 7 Barb. 70.
II. The justices courts in the city of New York.
The Marine Court of the city of New York.
SECTION 65. Its jurisdiction. $ 65. [Sec. 58.) The marine court of the city of New- Its jurisdicYork 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 maratime jurisdiction.
The Justices' Courts, in the city of New-York.
Section 66. Their jurisdiction. Their juris. $66. [Sec. 59.] 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.
An assistant justice's court, is a court of a justice of the peace, within the meaning of the section of the code which regulates actions on judgments. And an action may be brought on a judgment recovered before the code of procedure took effect, within two years after its rendition. McGuire vs. Gallagher, 2 Sand. 402; S. C. 1 Code Rep. 127. See notes to section sixty.
The Justices' Courts of Cities.
SECTION 67. Their Jurisdiction. $67. [Sec. 60.] The justices courts of cities, shall have their jurir jurisdiction in the following cases, and no other :
1. In actions similar to those in which justices of the 1849. 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.
SECTION 68. Sections 55 to 64 applied to the courts embraced in this title.
8.68. [Sec. 61.] The provisions of sections fifty-five to sixty- Section 56 four, both inclusive, relating to forms of action, to pleadings, to cable to the the times of commencing actions to the rules of evidence, to filing braced in
this title. and docketing transcripts of judgments, to their effect, and the mode of enforcing them, and to proceedings where title to real
1849, 1851. property shall come in question, shall apply to the courts embraced in this title; except that, after the discontinuance of the actions 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 for twenty-five dollars or over, exclusive of costs, the transcript whereof is docketted in the office of the clerk of that county shall have the same effect as a lien, and be enforced in the same manner as and be deemed a judgment of the court of common pleas for the city and county of New-York.
OF CIVIL ACTIONS.
TITLE I. OF THEIR FORM.
II. OF THE TIME OF COMMENCING THEM.
V. OF THE MANNER OF COMMENCING THEM.
X. OF THE Costs.
forms of such actions and
Of the Form of Civil Actions.
forms of such actions and suits, abolished.
72. Feigned issues abolished, and order for trial substituted. Distinction $ 69. [Sec. 62.] The distinction between actions at law rawoandat and suits in equity, and the forms of all such actions and equity, and suits, heretofore existing, are abolished; and there shall be
in this state, hereafter, but one form of action for the ensuits abol- forcement or protection of private rights and the redress
of private wrongs, which shall be denominated' a civil action.
Although the code has abolished the distinction between legal and equi. table remedies, it has not changed the inherent difference between legal and equitable relief. Fritz agt. Hepburn and others, 5 How. 188; McMaster et
al. agt. Booth, 4 How. 427; Hill vs. McCarthy, 3 Code Rep. 49. Parties to
$ 70. [Sec. 63.] In such action, the party complaining in action shall be known as the plaintiff, and the adverse party as
$71. [Sec. 64.] No action shall be brought upon a judgwhen and ment rendered in any court of this state, except a court of how to be brought a justice of the peace, between the same parties, without Amended
leave of the court for good cause shown, on notice to the ad
verse party; and no action on a judgment rendered by a justice of the peace, shall be brought in the same county within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed.
A justice's judgment recovered before the code took effect, is not within the prohibition referred to in this section. McGuire vs. Gallagher, 2 Sand. 402.
§ 72. [Sec. 65.] Feigned issues are abolished; and instead Feigned isthereof, in the cases where the power now exists to order a feigned issue, or when a question of fact, not put in issue by tuted. the pleadings, is to be tried by a jury, an order for the trial may be made, stating, distinctly and plainly, the question of fact to be tried, and such order shall be the only authority necessary for a trial.
Feigned issues may still be ordered by the court in certain cases. Anony. mous, 5 How. 306. See Supreme Court Rules, 71, 73, 74.
sues abolished and order for trial substi
II. Actions for the recovery of real property.
74. Time of commencing civis actions. $ 73. [Sec. 66.] The provisions contained in the chapter Repeal of of the Revised Statutes, entitled “Of actions and the times limitations. of commencing them," are repealed, and the provisions of 1949. this title are substituted in their stead. This title shall not extend to actions already commenced, or to cases where [NOTES.]