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 THE 
 
 LAW AOT3 PKACTICE 
 
 OF THE 
 
 MUNICIPAL COURT 
 
 OITT OF NEW YORK 
 
 WITH THE 
 
 Boundaries of Boroughs, Districts, and Wards, and also 
 the Latest Decisions Affecting this Court 
 
 WITH FORMS AND EXHAUSTIVE INDEX 
 
 BY 
 LANGBEIN BROTHERS 
 
 COUNSELORS AT LAW 
 
 George F. Langbein J. C. Julius Langbein 
 
 See Supplement at End of Book. 
 
 FIFTH EDITION 
 
 NEW YORK 
 
 BAKER, VOORHIS & COMPANY 
 
 1902
 
 T 
 
 Entered according to act of Congress, in the year 1898, by 
 
 LANGBEIN BROTHERS, 
 
 intlie Office of the Librarian of Congress, Washington, D. C. 
 
 Copyright, 1902, by 
 GEORGE F. LANGBEIN and J. C. JULIUS LANGBEIN. 
 
 J. B. LYON COMPANY 
 
 PRINTERS AND BINDERS 
 
 ALBANYj N. Y.
 
 r 
 
 PREFACE TO FIFTH EDITION. 
 
 The Fourth Edition of our work, published in the year 
 1898, necessarily embraced and contained the unrepealed 
 Session Laws, General and Special Statutes, the District 
 Court Act (Laws 1857, chap. 344) and its various amend- 
 ments, the Consolidation Act (Laws 1882, chap. 410) and 
 its amendatory acts, the Greater New York Charter (Laws 
 1897, chap. 378), numerous sections of the Code of Civil 
 Procedure and its various amendments. From such an in- 
 congruous mass of laws, that edition was evolved, and it had 
 oecome evident to the justices and members of the bar, that 
 such a conglomerated mass of legislative enactments often 
 caused grave doubts as to the jurisdiction, procedure, and 
 practice of this court, especially since the adoption of the 
 Charter, which increased its jurisdiction, as to amount, to the 
 sum of five hundred dollars, and in many respects made it 
 an important tribunal. 
 
 In order to remedy these defects and restore " order out 
 of chaos," the Legislature passed an act (Laws 1901, chap. 
 218), entitled " An act to provide for a commission to re- 
 vise, amend, reform, simplify, abridge, and codify the laws, 
 rules, practice, pleadings, forms, and proceedings of the 
 Municipal Court of the City of New York, and the laws, rules, 
 et cetera, relating to the clerks, officers, and attendants thereof, 
 and the marshals attached thereto." 
 
 Under this act, the Commission (which consisted of the 
 
 board of justices of this court) appointed seven of their 
 
 [iii]
 
 iv Preface to Fifth Edition. 
 
 number to carry out the provisions of the act. On the 27th 
 day of January, 1902, the Commission made its report to 
 the Legislature, which is printed in full in this work. This 
 report (among oth< r things) states: " It was the object of 
 the Commissi >n to report a practice act, to preserve, amplify, 
 and make more efficient statutory provisions affecting a 
 court, the history of which can be traced as far back as the 
 year 1759, and which at one time was a court of record. 
 (Langbein's District Court Practice, First Edition Preface,. 
 Laws 1813, chap. 86, § 10.)" 
 
 The First Edition of our work thus cited was published 
 in the year 1872, but the statement and proof that this court 
 was at one time a court of record is not to be found in the 
 " Preface " of that edition, but in a chapter upon " The Dis- 
 trict Courts in the City- of New York ; Their Creation, Or- 
 ganization, and History." Neither is the section of Laws 
 1813, chap. 86, cited as section 10, correctly cited, the sec- 
 tion being section 107. 
 
 A continuation of the organization and history of the 
 court from the year 1872 is contained in the " Preface " to 
 the Second Edition, published in the year 1880; in the 
 " Preface " to the Third Edition, published in the year 1894, 
 and also in the " Preface " to the Fourth Edition. 
 
 After conflicting decisions in the Appellate Term and 
 Appellate Divisions (First and Second Departments), the 
 Court of Appeals, in the case of WoHhington v. London 
 Guarantee & Accident Co., 164 N. Y. 81, decided that 
 " this court, as created by the Greater New York Charter 
 (Laws 1897, chap. 378, § 1351) is not a new court, but a 
 continuation, consolidation, and reorganization of the for- 
 mer district courts of the old citv of New York, and the
 
 Preface to Fifth Edition. v 
 
 justices' courts in the first, second, and third districts of 
 the old city of Brooklyn, under a new name." 
 
 By the new enactment, " all acts and parts of acts " affect- 
 ing this court are repealed, and the statutory law governing 
 the court is hereafter to be found in this act, which takes 
 effect September 1, 1902, known as chapter 580 of the 
 Laws of 1902, and by section 365 thereof, " may be cited 
 as the Municipal Court Act of the City of New York." 
 
 We have only space in a preface to give a few of the main 
 features of this new enactment. 
 
 The complicated provisions for long and short summons 
 as to nonresident defendants is omitted, while jurisdiction 
 is extended to all actions for damages for fraud or deceit ; 
 to loss of services, or medical or other necessary expenses 
 occasioned by personal injuries ; to an action upon a surety 
 bond or undertaking given in any court. The power of the 
 marshal to execute process is extended over the four coun- 
 ties and five boroughs of The City of New York. Substi- 
 tuted service and interpleaders are provided for. The time 
 of the justice to render judgment is extended from eight 
 to fourteen days, and parties may submit a controversy 
 upon an agreed case as in courts of record. There is a 
 graduated scale of costs and a remittitur on appeal. The 
 justice is given power, either in an action or summary pro- 
 ceeding, to direct or set aside a verdict, vacate, amend, or 
 modify a judgment, or grant a new trial on the ground of 
 fraud, or newly-discovered evidence, to grant or vacate a 
 stay, and any person over the age of eighteen years may 
 serve a summons without being deputized by the justice. 
 
 The law and practice of " Summary Proceedings " is 
 not treated of in this, as it has not been in former editions.
 
 vi Preface to Fifth Edition. 
 
 We must respectfully, but firmly, differ from the state- 
 ment in said report that " this court is primarily the poor 
 man's court, and so have preserved in the main the features 
 that gave it that appellation." Many sections of this new 
 law contradict that statement, but we have only space to 
 even briefly mention one, viz., section 274, " Judgment in 
 Favor of Wage-Earners." It is the shortest " Statute of 
 Limitation " on record, especially when applied to a " wage- 
 earner," and while we do not criticise, nor does space permit 
 us to argue, we doubt its constitutionality. 
 
 We will thank the justices and members of the bar for 
 information as to any errors they may discover, in order 
 that correction may be hereafter made. 
 
 New York City, August 18, 1902. 
 
 GEORGE F. LANGBEIN, 
 J. C. JULIUS LANGBEIN.
 
 CONTENTS. 
 
 PAGE. 
 
 Preface iii 
 
 Report of commission xix 
 
 Names of the justices, clerks, court officials and marshals, with their 
 residences, days and places of holding court, and telephone 
 
 number xxv 
 
 The Greater New York Charter, relating to the Municipal Court 
 
 of the city of New York 1 
 
 CHAPTER I. 
 CHARTER: 
 
 § 1. The city of New York; corporations consolidated; territory; 
 
 short title of this act 2 
 
 2. Division into boroughs 3 
 
 CHAPTER XX. 
 
 Inferior local courts. Title 2. The Municipal Court of the city of 
 New York: 
 
 Tit. 5. Interpreters 5 
 
 § 1350. Courts, etc., abolished 6 
 
 1351. Municipal court created 6 
 
 1352. Justices 7 
 
 Subd. 2. Election of successors 8 
 
 Subd. 3. Id. ; when terms expire in 1897 8 
 
 Subd. 4. Additional justices 9 
 
 • 1353. Qualification, etc., of justices 13 
 
 1354. Oath 14 
 
 1355. Salary 14 
 
 1356. Terms 15 
 
 1357. Vacancies 16 
 
 1358. Districts 16 
 
 1359. Borough of the Bronx , 16 
 
 1360. Borough of Manhattan 18 
 
 1361. Borough of Brooklyn 26 
 
 tvii]
 
 viii Contexts. 
 
 PAGE. 
 
 § 1362. Borough of Queens 37 
 
 1363. Borough of Richmond 38 
 
 1373. Clerks and assistant clerks .. . . 374 
 
 1378. Clerks to administer oaths 379 
 
 13S3. Removal o* - clerks and assistant clerks 379 
 
 1424. Marshals of the cities of New York and Brooklyn con- 
 
 tinued 386 
 
 1425. Mayor to appoint marshals; term of office 387 
 
 1426. Id.; marshals for the boroughs of Queens and Richmond. 388 
 
 1427. Successors to present marshals of New York city 388 
 
 MUNICIPAL COURT ACT: 
 
 TITLE I. 
 
 JURISDICTION AND GENERAL POWERS. 
 
 § 1. Jurisdiction 40 
 
 2. No jurisdiction in certain cases 81 
 
 3. Removal 86 
 
 4. Contempt of court ; criminal 96 
 
 5. Punishment 96 
 
 6. In view of court . , 96 
 
 7. Preceding three sections limited 97 
 
 8. Contempts punishable civilly 97 
 
 9. Process ; where service may be made 105 
 
 10. Justice to administer oaths 105 
 
 11. Board of justices 107 
 
 12. Board to make rules 108 
 
 13. Court ; by whom held 112 
 
 14. Concurrence of majority 112 
 
 15. Actions may be continued before another justice 113 
 
 16. Death or removal of justice not to impair proceedings, 
 
 et cetera 113 
 
 17. Court; where held 114 
 
 18. Seals 116 
 
 19. Access to courthouses 117 
 
 20. Code; rules of Supreme Court applicable; when 117 
 
 (There are no sections from 20 to 25.) 
 
 TITLE II. 
 
 ACTIONS; SUMMONS; PARTIES. 
 
 § 25. In what district brought 119 
 
 26. Actions ; how commenced 122 
 
 27. Summons ; requisites 124
 
 Contents. ix 
 
 PAGE. 
 
 § 28. Form of summons 126 
 
 29. Summons; corporation counsel may issue, et cetera 127 
 
 30. Service ; alias 128 
 
 •31. Method of service 129 
 
 32. Order for service of summons, when defendant not found. . 133 
 
 33. How such service must be made 135 
 
 34. Papers to be filed ; proof of service 135 
 
 35. Defendant when allowed to defend 136 
 
 3G. Who may serve summons, et cetera 136 
 
 37. Return day 139 
 
 38. Indorsement upon summons 142 
 
 39. Indorsement upon summons where execution against the 
 
 person may issue 143 
 
 40. Parties ; appearance of 144 
 
 41. Guardian ad litem 149 
 
 42. Parties ; who may be joined 151 
 
 43. Application of this article to defendants jointly liable 153 
 
 44. Where employee is party 154 
 
 45. Who may petition for leave to prosecute as a poor person.. 155 
 4G. Contents of petition 156 
 
 47. Order and petition to be filed; when counsel assigned 157 
 
 48. When leave may be annulled 157 
 
 49. When defendant may defend as a poor person, et cetera.. 157 
 
 50. Defendant's order 158 
 
 51. Leave may be annulled as in cases of plaintiff 158 
 
 52. Appeal where plaintiff or defendant poor person 159 
 
 53. Costs in favor of petitioner 159 
 
 (There is no section 54.) 
 
 TITLE III. 
 
 PROVISIONAL REMEDIES; AND ACTIONS TO FORECLOSE A LIEN ON A 
 
 CHATTEL. 
 
 ARTICLE I. 
 
 ORDER OF ARREST. 
 
 :§ 55. Process to be served by marshal 160 
 
 56. In what eases order of arrest to be granted 161 
 
 57. Affidavit and undertaking upon granting 169 
 
 58. What to direct 171
 
 Contents. 
 
 PAGE. 
 
 59. Papers to be delivered to arrested person; proceedings 
 
 thereupon 171 
 
 60. Proceedings in ease justice is a witness 172 
 
 61. Plaintiff to be notified of arrest 172 
 
 62. Bail or deposil before return 172 
 
 63. Bail may be examined 173 
 
 64. Bail or deposit after return 174 
 
 65. When and how defendant to remain in custody 174 
 
 66. Duty of marshal 175 
 
 67. Undertaking by arrested defendant on applying for ad- 
 
 journment 175 
 
 68. Motion to discharge from arrest 176 
 
 69. Privilege from arrest 181 
 
 70. Sections applicable as to undertakings, et cetera 182 
 
 (There are no sections 71 or 72.) 
 
 ARTICLE II. 
 
 ATTACHMENT. 
 
 73. When may be granted 183 
 
 74. What must be shown to procure warrant 184 
 
 75. Contents of warrant 191 
 
 76. Undertaking 192 
 
 77. How warrant to be executed 193 
 
 78. Attachment, how levied 194 
 
 79. Certificate of defendant's interest to be furnished 196 
 
 80. Person refusing certificate may be examined 196 
 
 81. Marshal may maintain action 197 
 
 82. When attachment discharged, et cetera; property to be re- 
 
 stored to defendant 197 
 
 83. Service of summons and warrant of defendant 198 
 
 84. Undertaking of defendant 198 
 
 85. Claim by third person; bond and delivery thereupon 199 
 
 86. Judgment upon bond 200 
 
 87. Action upon undertaking where warrant is vacated 200 
 
 88. Return by marshal attaching 201 
 
 89. Application to vacate or modify warrant of attachment. . . 202 
 
 90. Effect of vacating warrant 206 
 
 91. Judgment where property has been attached 206 
 
 92. Sections applicable as to undertaking, et cetera 207 
 
 (There are no sections 93 or 94.)
 
 Contents. xi 
 
 ARTICLE III. 
 
 REPLEVIN. 
 
 PAGE. 
 
 95. Action to recover a chattel 209 
 
 96. Affidavit and undertaking by plaintiff 211 
 
 97. Affidavit therefor, before commencement of action 212 
 
 98. Where several chattels are to be replevied 216 
 
 99. Plaintiff's undertaking for replevin 216 
 
 100. When agent, et cetera, may make affidavit for replevin or 
 
 return .„...., 217 
 
 101. Requisition of justice 218 
 
 102. How executed 218 
 
 103. How executed if property concealed, et cetera 219 
 
 104. Marshal to keep in possession; when and how to deliver. . 219 
 
 105. Return to requisition 220 
 
 106. Defendant when to except to sureties, proceedings there- 
 
 upon 221 
 
 107. Defendant may reclaim chattel ; proceedings thereupon . . 222 
 
 108. Qualifications of sureties 223 
 
 109. Justification 224 
 
 110. Allowance of undertaking 225 
 
 111. When and to whom marshal to deliver chattel 225 
 
 112. Penalty for wrong delivery by marshal 226 
 
 113. Claim of title by third person; proceedings thereupon... 226 
 
 114. Action against a marshal on claim 227 
 
 115. Indemnity to marshal against such action 228 
 
 116. Answer of title in third person 228 
 
 117. Defendant may demand judgment for return of chattel.. 228 
 
 118. For delivery of property; how money recovered by same 
 
 judgment may be collected 229 
 
 119. Damages, when chattel injured, et cetera, by defendant. . 229 
 
 120. Judgment or verdict; what to state 230 
 
 121. Judgment or verdict, et cetera, for part of several chattels. 231 
 
 122. Damages, how ascertained on default 231 
 
 123. Final judgment, et cetera 232 
 
 124. Execution, contents thereof , . 233 
 
 125. Marshal's power to take chattel 233 
 
 126. Action on undertaking, when maintainable 234 
 
 127. Marshal's return, evidence therein 234 
 
 128. Injury, et cetera, no defense 234 
 
 129. Proceeding where summons not personally served 235 
 
 130. When action not affected by failure to replevy 235 
 
 131. Judgment of action with others 236 
 
 (There are no sections from 131 to 137.)
 
 xii Contents. 
 
 ARTICLE IV. 
 
 ACTION TO FORECLOSE A LIEN ON A CHATTEL. 
 
 PAGE. 
 
 | 137. Action ; when and in what courts maintainable 236 
 
 138. Warrant in action 237 
 
 139. Action on conditional sale agreement, et cetera; how 
 
 brought 237 
 
 140. Judgment ; order of arrest ; body execution 238 
 
 141. Judgment, et cetera 239 
 
 142. Application of this article 239 
 
 (There are no sections 143 or 144.) 
 
 TITLE IV. 
 PLEADINGS. 
 $ 145. Pleadings on joinder of issue 241 
 
 146. What causes of action may be joined in the same com- 
 
 plaint 245 
 
 147. Plaintiff to prove his case, — except on contract where 
 
 there is a verified complaint 248 
 
 148. Defendant may offer to allow judgment or compromise. . 250 
 
 149. Complaint 251 
 
 150. Answer; what to contain 257 
 
 151. Counterclaim defined 262 
 
 152. Rules respecting the allowance of counterclaim 263 
 
 153. Judgment when demand or counterclaim are equal, or un- 
 
 equal 264 
 
 154. For affirmative relief 265 
 
 155. Counterclaim when defendant is sued in a representative 
 
 capacity 265 
 
 156. When plaintiff is an executor or administrator 265 
 
 157. Counterclaim where amount is in excess of courts' juris- 
 
 diction 266 
 
 158. When defendant may demur 266 
 
 159. Demurrer to complaint must specify grounds of objection. 268 
 
 160. Demurrer to all or part of the complaint; may answer 
 
 to part 268 
 
 161. Formal reply or demurrer to counterclaim not necessary. . 269 
 
 162. When plaintiff may demur to answer 269 
 
 163. Requirements concerning verified pleadings 270 
 
 164. Verification; how and by whom made 270 
 
 165. Exhibition of accounts at instance of adverse party may 
 
 be ordered 271 
 
 166. Amendment of pleadings 272
 
 Contents. xiii 
 
 PAGE. 
 
 167. Private statute ; how pleaded 273 
 
 168. Judgments ; how pleaded 274 
 
 169. Conditions precedent ; how pleaded 274 
 
 170. Pleadings to be liberally construed 274 
 
 171. Immaterial variance in pleading to be disregarded 275 
 
 172. Material variances ; how provided for 275 
 
 173. What to be deemed a failure of proof 275 
 
 174. Partial defenses 275 
 
 175. Complaint in actions by or against corporations 276 
 
 176. When proof of corpoi-ate existence unnecessary 276 
 
 177. Misnomer, when waived 277 
 
 178. Pleadings in actions on bastardy bonds 277 
 
 179. Answer of title 278 
 
 180. Defendant in answer of title to deliver undertaking 279 
 
 181. New action to be brought in Supreme Court 280 
 
 182. Old action ; thereupon discontinued 280 
 
 183. Penalty for failure to deliver undertaking 281 
 
 184. Title appearing from plaintiff's own showing 281 
 
 185. Same cause of action, and defense in new action 282 
 
 186. Answer of title interposed as to only one or more of sev- 
 
 eral defenses ; proceedings thereupon 282 
 
 187. Interpleader by order in certain cases 282 
 
 (There are no sections from 187 to 193.) 
 
 TITLE V. 
 
 PROCEEDINGS BETWEEN JOINDER OF ISSUE AND TRIAL. 
 
 ARTICLE I. 
 
 ADJOURNMENTS; SUBPOENAS; ATTENDANCE OF WITNESSES. 
 
 193. Trial may be adjourned, when 285 
 
 194. Adjournment longer than eight days; undertaking 287 
 
 195. Conditions may be imposed. 288 
 
 196. Attendance of witnesses 288 
 
 197. How subpoena served 291 
 
 198. Warrant of attachment against defaulting witness 292 
 
 199. How executed: fees thereupon 293 
 
 200. Defaulting witness liable for damages, and penalty of fifty 
 
 dollars 293 
 
 (There are no sections from 200 to 205.)
 
 xiv Contents. 
 
 ARTICLE II. 
 
 COMMISSION TO TAKE TESTIMONY; DEPOSITIONS. 
 
 PAGE. 
 
 § 205. Commission to take testimony, et cetera 295 
 
 20G. Commission on consent; deposition upon oral questions.. 296 
 
 207. When and how commission granted 296 
 
 208. Adjournment where commission granted 297 
 
 209. How executed and returned 298 
 
 210. Certificate of execution 300 
 
 211. Certificate, a sufficient return 300 
 
 212. When deposition may be suppressed 301 
 
 213. Deposition, et cetera, evidence 302 
 
 214. Power of commissioners 303 
 
 215. Receipt of clerk ; return of commission by 304 
 
 216. Deposition to take testimony conditionally 304 
 
 217. Affidavit on application: requirements of 305 
 
 218. Deposition by consent 306 
 
 219. Order for examination 306 
 
 220. Punishment for disobeying order, witness fees 307 
 
 221. Service of order 307 
 
 222. Adjournment of examination 308 
 
 223. Party confined in prison 308 
 
 224. Rules for examination ; manner of taking and returning 
 
 deposition; refusal of person examined to answer 309 
 
 225. Deposition may be read in evidence, when 309 
 
 226. Effect of deposition 310 
 
 (There are no sections from 226 to 230.), 
 
 TITLE VI. 
 
 TRIAL; TRIAL JURORS. 
 
 § 230. Issue of fact and law; judgment within what time to be 
 
 rendered 311 
 
 231. Trial by jury; drawing the jury 314 
 
 232. Court may direct trial by jury, when 316 
 
 233. Trial jurors; list of, to be furnished clerk of each district. 317 
 
 234. Jury of twelve, when 318 
 
 235. How jury summoned; notice 319 
 
 236. Talesmen 320 
 
 237. Ballots of jurors summoned but not drawn 320 
 
 238. Adjournments after return of jury 321 
 
 239. Verdict ; requisites 321
 
 Contents. xv 
 
 PAGE. 
 
 i 240. Conduct of trial 322 
 
 241. Submission of a controversy upon facts admitted 338 
 
 242. Papers to be filed 339 
 
 243. Subsequent proceedings regulated 339 
 
 (There are no sections from 243 to 248.) 
 
 TITLE VII. 
 JUDGMENT AND EXECUTIONS. 
 
 ARTICLE I. 
 
 JUDGMENTS. 
 
 248. Nonsuit, when authorized 341 
 
 249. Judgment of dismissal on merits, when 343 
 
 250. Judgment when sum exceeds jurisdiction 344 
 
 251. Judgment where defendant liable to arrest 344 
 
 252. Court may direct verdict, when 346 
 
 253. Court may open default 347 
 
 254. Motion to set aside verdict or vacate or amend judgment. 352 
 
 255. New trial ; fraud or newly-discovered evidence 354 
 
 256. Court may impose conditions, et cetera 354 
 
 257. Appeal from order 355 
 
 (There are no sections from 257 to 260.) 
 
 ARTICLE II. 
 
 EXECUTION. 
 
 260. How issued 357 
 
 261. Transcript, how to issue; judgment of Supreme Court, 
 
 when docketed 358 
 
 262. When satisfaction of judgment presumed 360 
 
 263. Real property bound for ten years by a judgment thus 
 
 docketed 360 
 
 264. Judgment, and effect of, against defendants jointly in- 
 
 debted when all are not served 361 
 
 265. Execution ; indorsement thereupon 362 
 
 266. How collected 362 
 
 267. Judgment, how docketed; effect of docketing 363 
 
 268. Action against joint debtors 363 
 
 269. Docketing judgment in another county 364 
 
 270. Judgment against marshal 365 
 
 271. Execution; requisites 365
 
 xvi Contents. 
 
 PAGE. 
 
 § 272. Arrest 367 
 
 273. Renewal of execution 368 
 
 274. Judgment in favor of wage earner 368 
 
 275. Arrest and sale of property limited 370 
 
 276. Marshal, whci liable to execution 370 
 
 277. Return of execution and satisfaction of judgment 373 
 
 (There are no sections from 277 to 282.) 
 
 TITLE VIII. 
 ARTICLE I. 
 
 CLERKS AND OFFICERS. 
 
 § 282. Duties of clerk 380 
 
 283. To collect and account for fees, et cetera 383 
 
 284. Docket, what to contain 383 
 
 285. Entries, how to be made 384 
 
 286. Index 3Sj 
 
 287. To be delivered by clerk to his successor 385 
 
 288. Successor may issue execution on former unsatisfied 
 
 docket 385 
 
 289. Certified copies; prima facie evidence 385 
 
 (There are no sections from 289 to 293.) 
 
 ARTICLE II. 
 
 MARSHALS. 
 
 § 293. Marshal not to appear, et cetera 390 
 
 294. Bond to be executed by 390 
 
 295. Prosecution of bond 391 
 
 296. In what court bond may be prosecuted 393 
 
 297. Judgments against marshals; transcript and execution.. 393 
 
 298. Entry of judgment to be indorsed on bond, how 394 
 
 299. Amount collected to be credited on bond 394 
 
 300. City clerk to report cancelled bonds to mayor; renewal of 
 
 bond 39.1 
 
 301. Appointment deemed waived for failure to file bond 395 
 
 302. Process to be served by marshals 395 
 
 303. Marshal may serve process within city limits 396 
 
 304. Certain laws in relation to sheriffs made applicable .... 397 
 
 305. Marshal to keep entry book and indorse, et cetera 398 
 
 306. Removal and suspension of marshals 398 
 
 (There are no sections from 306 to 310.)
 
 Contents. xvii 
 
 TITLE IX. 
 
 APPEALS. 
 
 PAGE. 
 
 310. When appeal may be taken 399 
 
 311. When and how taken 404 
 
 312. Service of notice upon respondent 407 
 
 313. Omission to serve one, how supplied; amendment, when 
 
 allowed 408 
 
 314. Undertaking to stay execution upon judgment 408 
 
 315. Exception to sureties; justification 410 
 
 316. Proceedings, how stayed 410 
 
 317. Return 411 
 
 318. Settlement of case on appeal 416 
 
 319. When justice is dead, et cetera 417 
 
 320. Appeal when adverse party has died 417 
 
 321. Proceedings when party dies pending appeal 418 
 
 322. Order of substitution 419 
 
 323. Restitution upon reversal 419 
 
 324. Setting off costs and recovery 420 
 
 325. Hearing on appeal, dismissal thereof; reversal on stipula- 
 
 tion 420 
 
 326. Judgment 421 
 
 327. Clerk Appellate Court to return papers 421 
 
 (There are no sections from 327 to 330.) 
 
 TITLE X. 
 
 COSTS AND FEES. 
 
 330. When prevailing party to recover costs 437 
 
 331. When neither party to recover costs 439 
 
 332. Costs ; sums allowed 439 
 
 333. When defendant entitled to increased costs 443 
 
 334. Costs on demurrer 443 
 
 335. Costs on amendment of pleading 444 
 
 336. Costs on adjournment 444 
 
 337. Costs after discontinuance, upon answer of title 444 
 
 338. Costs where title to real property, in question 446 
 
 339. Costs in actions upon bastardy, et cetera, bonds 446 
 
 340. Costs in action by working woman 447 
 
 341. Taxation of costs 447 
 
 342. Review of taxation 448 
 
 343. Costs, duty of clerk on taxation 449 
 
 344. Costs, affidavit respecting disbursements 449 
 
 ii
 
 xv ; ii Contents. 
 
 PAGE. 
 
 § 345. Costs upon appeal ; to whom 450 
 
 346. Costs upon appeal; amount 451 
 
 347. Fees payable to clerks 452 
 
 348. Employee's action ; no fees 453 
 
 349. Fees, propel ty of city 45:3 
 
 350. Fees on judgment, in county clerk's office 454 
 
 351. Jurors' fees 454 
 
 352. Witnesses' fees 454 
 
 353. Stenographers' fees 455 
 
 354. Marshals' fees 456 
 
 355. Costs on order to prosecute marshal's bond 457 
 
 356. Fees in summary proceedings 458 
 
 (There are no sections from 356 to 360.) 
 
 TITLE XI. 
 
 DEFINITIONS; EFFECT OF ACT; LAWS REPEALED. 
 
 § 360. Definitions 465 
 
 361. Saving clause 465 
 
 362. Construction 466 
 
 363. Sections of the code not applicable 466 
 
 364. Laws repealed 467 
 
 365. Act may be cited 467 
 
 366. When to take effect 467 
 
 Schedule of laws repealed 467 
 
 Table showing disposition of laws repealed 474 
 
 Charter sections preserved 480 
 
 Appendix of forms 481 
 
 Index 537 
 
 Index to forms 623
 
 REPORT OF COMMISSION. 
 
 STATE OF NEW YORK. 
 
 No. 36. 
 
 In Assembly, January 27, 1902, Report of the Commis- 
 sion Appointed to Revise and Codify the Laws 
 Relating to Tne Municipal Court of 
 the Cicy of lMew York. 
 
 To the Legislature : 
 
 Under the provisions of chapter 218 of the Laws of 1901, 
 Justices George F. Roesch, Joseph P. Fallon, and Francis 
 J. Worcester of Manhattan, J ohn M. Tierney of The Bronx, 
 Gerard B. Van Wart of Brooklyn, John J. Kenney of Rich- 
 mond, and William Rasquin, Jr., of Queens, were desig- 
 nated, by the Board of Justices of the Municipal Court of 
 The City of New York, a Commission to revise and codify 
 the laws relating to that court, its officers, and marshals. 
 
 The Commission organized by the election of Justice 
 George F. Roesch as chairman, Justice William Rasquin, 
 Jr., as secretary, and selected Hon. Cornelius F. Collins as 
 its clerk. 
 
 Since the adoption of the Greater New York Charter, the 
 Municipal Court of that city has become an important tri- 
 bunal. The consolidation of the old Justices' and District 
 Courts into Municipal Court made it desirable, and, in- 
 deed, necessary for the proper administration of justice in the 
 reorganized court that the laws applicable to it should be 
 readily ascertained. They were however only to be found 
 after laborious and unsatisfactory research. They were con- 
 tained in unrepealed general and special statutes, the District 
 Court Act of 1857 and its amendatory acts, numerous stat- 
 utes affecting the old justices' courts, the Consolidation Act 
 of 1882 and its amendatory statutes, The Greater New York 
 Charter, Code of Civil Procedure, and Rules of Court. Such 
 
 [xixl
 
 xx Repokt oi- Commission. 
 
 a mass of enactments often caused grave doubt as to the 
 jurisdiction aud procedure in the reconstructed court, and 
 there was a marked lack of uniformity in the practice in it. 
 
 The present Commission was created to afford a remedy 
 for such a conditi m. The main purpose of the Commission 
 has been to revise and codify all the laws governing the 
 Municipal Court, and embody them, as far as practicable, in 
 one act. The Commission wished further to simplify the 
 practice within the limited jurisdiction of the court, and 
 make possible resort to remedies afforded by the Code of 
 Civil Procedure, the absence of which from this court has 
 frequently resulted in failure of justice. 
 
 It was the object of the Commission to report a Practice 
 Act to preserve, amplify, and make more efficient statutory 
 provisions, affecting a court the history of which can be 
 traced as far back as the year 1759, and which at one time 
 was a court of record. Langbein's District Court Practice 
 (1st ed.), preface; Laws 1813, chap. 86, § 10. 
 
 Judge Haight of the Court of Appeals, in his opinion in the ' 
 case of Worthington v. The London G. & A. Co., 164 N. Y. 
 192, recognizes more fully the importance of this court. He 
 asserts the right of the Legislature to confer any jurisdiction 
 upon this court it may, in its wisdom, determine. He shows 
 that the Municipal Court is a District Court within the pro- 
 visions of article 6, section 17 of the Constitution, with " such 
 power as the Legislature shall provide, and there is no limita- 
 tion whatever." He also shows conclusively that the Legisla- 
 ture could confer even greater jurisdiction upon this court 
 than that possessed by the County Courts. There can there- 
 fore be no question as to the power of the Legislature to pass 
 the act herewith presented. 
 
 The changes are merely in the direction of the greater 
 efficiency of the court within its jurisdiction. They are, 
 likewise, adaptations of remedies afforded by the Code of 
 Civil Procedure to this court. The Commission has been 
 conservative in its work, and has not lost sight of the fact 
 that this court is primarily " the poor man's court " and so 
 has preserved in the main the features that gave it that ap- 
 pellation. On the other hand, the increase in its jurisdiction 
 since the passage of the Greater New York Charter has led
 
 Report of Commission. xxi 
 
 to a large increase in its business and has brought to it an 
 unusual amount of litigation which demands broader rem- 
 edies than previous statutes afforded. 
 
 There has been some diversity of opinion as to the jurisdic- 
 tion in amount that should be conferred upon this court, as to 
 the advisability of repealing the provision for the removal 
 of an action from the Municipal into the City or Supreme 
 Court, and as to the subject of the rotation of the justices. 
 
 The Commission calls attention to the fact that the Mu- 
 nicipal Court of the city of Syracuse and several city courts 
 in the State have jurisdiction to the amount of $1,000, and 
 that the congested condition of the calendars of the courts 
 of record in Greater New York would be much relieved by 
 conferring such jurisdiction on the Municipal Court. 
 
 As to the right of removal, it must be borne in mind that 
 under the proposed act a defendant in certain cases in this 
 court will have the right of trial by a jury of twelve. Re- 
 moval is frequently resorted to by defendants only for pur- 
 poses of delay. It is a relic of the practice in courts of jus- 
 tice of the peace as they formerly existed in New York City 
 and serves no beneficial purpose in the- interests of justice to- 
 day. Furthermore under the decision in the case of he- 
 vine v. Hahner, 62 App. Div. 195, neither party in an 
 action removed from these courts is now entitled to any costs. 
 
 As to rotation, there is a manifest impropriety in requir- 
 ing justices who are elected by a particular constituency to 
 hold court in districts where the people have no voice in 
 their selection. Moreover it is an injustice upon the people 
 who select them because they are deprived of their chosen 
 officials. A strict compliance with the existing law would 
 require the justices of the borough of Manhattan to be ab- 
 sent from the district for which they were elected, eleven 
 out of twelve months of the year. It might as well be urged 
 that the several county judges throughout the State should 
 rotate from county to county. Stronger reasons might be 
 advanced why this should be done because there are but few 
 of the counties up the State having as large a population as 
 that embraced in any of the districts of The City of Xew 
 York, especially in the borough of Manhattan. There is an
 
 xxii Report of Commission. 
 
 average population in the Municipal Court districts of be- 
 tween 250,000 and 300,000 people. The suggestion that tho 
 justice may be affected by local influences is unsound and 
 absurd. Considering the very large number of people within 
 each district it would be impossible for him to be acquainted 
 with more than an exceedingly small percentage of the entire 
 number, and mere acquaintance does not impair the efficiency 
 of a justice. 
 
 Under the present law a litigant or a justice may call a 
 common-law jury of twelve. This is entirely optional with 
 the litigant, and a jury trial may be invoked by either side. 
 Another serious objection to taking the justices away from 
 their own district is found in the fact that the justices are 
 required to certify the pay-rolls each month from the court 
 for which they were selected or appointed, and sign returns 
 on appeal in cases tried by them in different courts where 
 papers and exhibits are in the custody of different clerks. 
 The justice appoints the clerks, attendants, and other officials 
 of his own court only. He is expected to have supervision of 
 their conduct. The question may well be asked how can he 
 have supervision or certify their pay-rolls each month if he is 
 away from his court the greater part of a year. It is evi- 
 dent that confusion might necessarily result from his absence. 
 Again, rotation results in a divided responsibility as to the 
 calendar and disposition of business in the court, and de- 
 stroys that fixed responsibility which enables the public and 
 the profession to judge of the efficiency of its servants. With 
 reference to the comparison between the population of the 
 several districts of the Municipal Court and that of the 
 County Courts, it may be well to call attention to the fact 
 that, excepting the counties of New York, Kings, and Erie, 
 the average population of the counties of this State does not 
 exceed 65,000. In other words, in most of the judicial dis- 
 tricts of the old city of New York, the population is as great, 
 at least, as that of four counties throughout the State. 
 
 The Commission is, however, so earnestly of opinion that 
 the adoption of a single statute with reference to this court 
 is an urgent necessity that individual members of it yielded 
 their views to accomplish the desired result, and the pro-
 
 Report of Commission. xxiii. 
 
 visions alluded to are not changed herein, but are left to the 
 consideration of the Legislature. 
 
 Future legislation should be in the shape of amendments 
 to this act. 
 
 Statutes necessarily repealed by the terms of this act, such 
 as that of 1857, are not expressly mentioned in the schedule, 
 in order to preserve the position recognized in recent de- 
 cisions of the Court of Appeals that the Municipal Court is 
 not a new tribunal, but a continuation of the former District 
 Courts. 
 
 It was deemed best to leave the sections affecting sum- 
 mary proceedings in the Code of Civil Procedure, rather than 
 to transfer them bodily to this act, though, of course, jurisdic- 
 tion over them is given herein. 
 
 The former provisions for long and short summonses as 
 to nonresident defendants . is omitted as being of no practical 
 advantage. It only gave rise to useless questions of mere 
 practice. 
 
 Sections 1350 and 1351, 1353 to 1363, both inclusive, 
 1373, 1424 to 1427, both inclusive, of the Greater New York 
 Charter, which abolish former courts, define the present court, 
 prescribe the qualifications of justices, oath of office, salary, 
 term, manner of filling vacancies, boundary of districts, ap- 
 pointments, removal and terms of clerks, assistant clerks* 
 stenographers, interpreters, court attendants, remain without 
 change in the charter itself, and are in nowise affected by any 
 provision of this act. 
 
 A table shows the disposition of the laws repealed and is 
 bracketed so as not to form a part of the act. 
 
 The changes recommended are plainly indicated through- 
 out the proposed act. 
 
 All of which is respectfully submitted. 
 
 New York, January 15, 1901. 
 
 GEO. F. ROESCH, 
 FRANCIS J. WORCESTER, 
 JOS. P. FALLON, 
 JNO. J. KENNEY, 
 WM. RASQUIN, Jr., 
 JOHN M. TIERNEY. 
 GERARD B. VAN WART.
 
 THE MUNICIPAL COURT 
 
 OF THE 
 
 CITY OF NEW YORK. 
 
 NAMES OF THE JUSTICES, CLERKS, COURT OFFICIALS, AND 
 MARSHALS, WITH THEIR RESIDENCE, DAYS, PLACES OF 
 HOLDING COURT, AND TELEPHONE NUMBER. 
 
 BOROUGH OF THE BRONX. 
 
 FIRST JUDICIAL DISTRICT. 
 
 Court held at Town Hall, Main St., Westchester. 
 Trial days, Tuesday and Friday. 
 
 Justice, WILLIAM PENFIELD, Wakefield. 
 Clerk, Thomas F. Delahanty, 76 Elliott Ave. 
 Assistant Cleric, William D. Miller, Wakefield. 
 Stenographer, Lucius W. Howe, Bronxwood Park. 
 Interpreter, Robert Vollbracht, 674 East 144tl> St. 
 Attendants, Stephen Collins, Prospect St., City Island. 
 
 John H. Coman, Main St., Westchester. 
 Marshal, George Hartell, Wakefield, and 151 East 121st St. 
 
 SECOND JUDICIAL DISTRICT. 
 
 Court held at southwest corner of 158th St. and 3d Ave. 
 Trial days, every day except Saturday, Sunday, and legal holi- 
 days. 
 
 Justice, JOHN M. TIERNEY, Southern Boulevard, near Valentine Ave. 
 Clerk, Thomas A. Maiier, 1266 Boston Road. 
 Assistant Clerk, John Monaghan, 165th St. and Sherman Ave. 
 
 [xxv]
 
 'xxvi Names of Justices, Clerks, Etc. 
 
 Stenographer, William M. Browne, Hunts Point. 
 Interpreter, Robert Vollbracht, 074 East 144th St. 
 Attendants, Timothy J. Kelly, 758 East 102d St. 
 Peter Koelble, 737 Forest Ave. 
 Frederick Johnson, 661 East 142d St. 
 Marshals, David W. Fkskine, (589 East 135th St. 
 George Rudolph, 1759 Sedgwick Ave. 
 James McCauley, 2(341 Marion Ave. 
 
 BOROUGH OF MANHATTAN. 
 
 FIRST JUDICIAL DISTRICT. 
 
 Court held at 128 Prince St. 
 
 Trial days, Tuesday, Wednesday, and Thursday. 
 
 Justice, DANIEL FINN, 509 Broome St. 
 Clerk, Frank L. Bacon, 582 Broome St. 
 Assistant Clerk, Stephen McFarland, 191 Prince St. 
 Stenographer, Edward C. Manners, 908 St. Nicholas Ave. 
 Interpreter, Bruno Bocks, 107 Varick St. 
 Attendants, John McGrath, 20 Greenwich St. 
 
 Michael Brennan, 576 Broome St. 
 Marshals, Louis Levy, 308 East 51st St. 
 Edward H. Healy, 8 Grove St. 
 
 Telephone, 1430 Spring. 
 
 SECOND JUDICIAL DISTRICT. 
 
 Court held at 172 Grand St. 
 
 Trial days, every day except Sundays and legal holiiays. 
 
 Justice, HERMAN BOLTE, 3 New Chambers St. 
 Clerk, Francis Mangin, 285 Mott St. 
 Assistant Clerk, James P. Diver, 88 Madison St 
 Stenographer, Benjamin F. Spellman, 26 Oliver St. 
 Interpreter, Hugh Taggart, 183 Mulberry St. 
 Attendant, James McCullough, 73 Centre St. 
 Marshals, William Alt, 187 Delancey St. 
 
 James A. Loftus, 172 Grand St. 
 
 Charles Cruisky, 172 Grand St. 
 
 Telephone, 2416 Spring.
 
 Names of Justices, Clekks, Etc. xxvii 
 
 THIRD JUDICIAL DISTRICT. 
 
 Court held at 125 Sixth Ave. 
 
 Trial days, every day except Sunday and legal holidays. 
 
 Justice, WILLIAM F. MOORE, 111 West 11th St. 
 Clerk, Daniel Williams, 66 West 10th St. 
 Assistant Clerk, Thomas E. Gorman, 108 Bank St. 
 Stenographer, Valencourt S. Lillie, 30 East 10th St. 
 Interpreter, Joseph Weill, 8 Van Nest Place. 
 Attendants, Daniel B. Murphy, 448 West 14th St. 
 Michael Bergin, 143 West 10th St. 
 John J. Gallagher, 31 Carmine St. 
 Marshals, James T. Pangburn, 79 Jane St. 
 John F. Neilson, 43 Barrow St. 
 
 Telephone, 1365 18th St. 
 
 FOURTH JUDICIAL DISTRICT. 
 
 Court held at northeast corner 2d Ave. and 1st St. 
 Trial days, every day except Sunday and legal holidays. 
 
 Justice, GEORGE F. ROESCH, 109 East 10th St. 
 Clerk, Julius Harburger, 64 East 3d St. 
 Assistant Clerk, Lawrence Mulligan, 35 7th St. 
 Stenographer, Caleb H. Redfern, 257 West 44th St. 
 Interpreter, Harold Spielberg, 80 1st St. 
 Attendants, Emil Bayer, 316 Bowery. 
 
 Daniel B. McCarthy, 108 East 56th St. 
 Marshals, Jacob Subin, 21 Forsyth St. 
 John Woerner, 30 1st St. 
 Gabriel L. Lowenthal, 335 East 79th St. 
 Telephone, 5252 Spring. 
 
 FIFTH JUDICIAL DISTRICT. 
 
 Court held at 154 Clinton St. 
 
 Trial days, every day except Sunday and legal holidays. 
 
 Justice, BENJAMIN HOFFMAN, 271 7th St. 
 Clerk, Thomas Fitzpatrick, 258 Henry St. 
 Assistant Clerk, James H. Sheils, 283 East Broadway.
 
 xxviii Names of Justices, Clkk-ks, Etc. 
 
 Stenographer, Louis S. Posner, 171 Rivington St. 
 Interpreter, Jacob Katz, 100 East 72d St. 
 Attendants, James McAlarney, 4:58 East HGth St. 
 Charles J. Newman, 293 7th St. 
 Patrick Reilly, 551 Grand St. 
 Marshals, Samuel I. Abramson, 248 East Broadway. 
 
 Morris Einstein, 311 East 4th St. 
 
 Max Gross, 153 Clinton St. 
 
 Jacob Katzenstein, 734 5th Ave. 
 
 Henry Myers, 275 7th St. 
 
 SIXTH JUDICIAL DISTRICT. 
 
 Court held at 407 2d Ave. 
 
 Trial days, every day except Sunday and legal holidays. 
 
 Justice, DANIEL F. MARTIN, 245 East 33d St. 
 Clerk, Abram Bernard, 956 Broadway. 
 Assistant Clerk, James Foley, 314 East 19th St. 
 Stenographer, Isaac E. Garvey, 089 Greenwich St. 
 Interpreter, Henry Alsheimer, 417 East 15th St. 
 Attendants, Lawrence Collins, 233 East 30th St. 
 
 Albert Goettman, 304 East 18th St. 
 
 Terrence S. Reilly, 244 East 37th St. 
 Marshal, James H. Smith, Court House. 
 
 Telephone, 1302 18th St. 
 
 SEVENTH JUDICIAL DISTRICT. 
 
 Court held at 151 East 57th St. 
 
 Trial days, every day except Saturday, Sunday, and legal holi- 
 days. 
 
 Justice, HERMAN JOSEPH, 121 East G4th St. 
 Clerk, Patrick McDavitt, 430 East 57th St. 
 Assistant Clerk, Edward McQuade, 1328 Lexington Ave. 
 Stenographer, George A. Moulton, Court House. 
 Interpreter, Frederick Fischer, 315 East 55th St. 
 Attendants, Edward T. Foran, 156 East 87th St. 
 
 Patrick Cunningham, 8 East 85th St. 
 William Farley, 1357 2d Ave. 
 Marshals, Charles A. Farley, 1231 Lexington Ave. 
 Michael Goode, 407 East 57th St. 
 William H. Lee, 157 East 57th St.
 
 Names of Justices, Clerks, Etc. xxix 
 
 EIGHTH JUDICIAL DISTRICT. 
 
 Court held at northwest corner 23d St. and 8th Ave. 
 Trial days, every day except Saturday, Sunday, and legal holi- 
 days. 
 
 Justice, JOSEPH H. STINER, Marlborough Hotel. 
 Clerk, Henry Merzbacii, 340 West 35th St. 
 Assistant Clerk, Peter J. Garvey, 226 West 24th St. 
 Stenographer, Harold Eyre, 118 West 58th St. 
 Interpreter, Adolph M. Leslie, 8 West 13th St. 
 Attendants, William Heim, 308 West 18th St. 
 
 Charles J. Geiger, 432 East 89th St. 
 Daniel Walsh, 329 East 88th St. 
 Marshals, James W. Slater, 224 West 20th St. 
 
 William H. Godward, 449 West 23d St. 
 Henry A. Hoelzle, 269 8th Ave. 
 James Boylan, Court House. 
 William H. Broderick, 323 West 18th St. 
 Telephone, 1335 18th St. 
 
 NINTH JUDICIAL DISTRICT. 
 Court held at 170 East 121st St. 
 Trial days, Tuesday and Friday. 
 
 Justice, JOSEPH P. FALLON, 1900 Lexington Ave. 
 Clerk, William J. Kennedy, 71 East 125th St. 
 Assistant Clerk, Patrick J. Ryan, 172 East 94th St. 
 Stenographer, George Zieger, 165 East 121st St. 
 Interpreter, Diodato Villamena, 205 East 116th St. 
 Attendants, Charles L. Lambert, 94 East 114th St. 
 John Golden, 514 East 119th St. 
 Isaac Silverblatt, 205 East 124th St. 
 Marshals, Bernath Kranz, 37 West 124th St. 
 
 George W. Hartell, 151 East 121st St. 
 Telephone, 480 Harlem. 
 
 TENTH JUDICIAL DISTRICT. 
 Court held at 312 West 54th St. 
 Trial days, every day except Sunday and legal holidays. 
 
 Justice, THOMAS E. MURRAY, 305 West 46th St. 
 Clerk, Hugh Grant, 346 West 56tn St. 
 Assistant Clerk, George Sexton, 226 West 82d St. 
 Stenographer, William C. Booth, 59 West 76th St.
 
 xxx Names of Justices, Clerks, Etc. 
 
 Interpreter, Martin Senger, 732 9th Ave. 
 Attendants, Cornelius Foley, 342 West 47th St. 
 Thomas CAMPBELL, 327 West 42d St. 
 John F. Walsh. 39 West (iOth St. 
 Marshals, Andrew Wagner, 362 West 45th St. 
 William S. Bobchers, 719 8th Ave. 
 George W. Klune, 261 West 114th St. 
 Telephone, 427 Columbus. 
 
 ELEVENTH JUDICIAL DISTRICT. 
 
 Court held at southwest coiner 126th St. and Columbus Ave. 
 Trial days, Monday and Thursday. 
 
 Justice, FRANCIS J. WORCESTER, 462 West 144th St. 
 Clerk, Hem an B. Wilson, 552 West 183d St. 
 Assistayit Clerk, Robert Andrews, 200 West 130th St. 
 Stenographer, Harry W. vVood, 189 Audubon Ave. 
 Interpreter, Valentine J. Hahn, 458 W 7 est 131st St. 
 Attendants, Frank McGrath, 56 Audubon Ave. 
 
 Thomas H. McCarriok, 362 West 116th St. 
 Marshals, James W. Barker, 244 West 143d St. 
 Frank C. Langley, 313 West 117th St. 
 Telephone, 769 Harlem. 
 
 BOROUGH OF BROOKLYN. 
 
 FIRST JUDICIAL DISTRICT. 
 
 Court held at northwest corner State and Court Sts. 
 Trial days, Monday, Tuesday, Thursday, and Friday. 
 
 Justice, JOHN J. WALSH, 289 Bridge St. 
 Clerk, Edward Moran, 242 Clinton St. 
 Assistant Clerk, James A. Dunne, 56 1st Place. 
 Stenographer, Dudley J. Fagan, 1461 Dean St. 
 Interpreter, Joseph Flash, 327 Grand St. 
 Attendants, Mathew J. Dowd, 359 Bainbridge St. 
 John J. McManus, 387 Keep St. 
 Charles Kock, 1036 Broadway. 
 Marshals, Eugene McCarthy, 185 State St. 
 Robert W. Oliver. 117 Court St. 
 John W. Irwin, 196 State St. 
 John H. Reardon, 108 Court St. 
 Michael J. Duffy, 82 Court St.
 
 Names of Justices, Clerks, Etc. xxxi 
 
 SECOND JUDICIAL DISTRICT. 
 Court held at 794 Broadway. 
 Trial days, every day except Sunday and legal holidays. 
 
 Justice, GERARD B. VAN WART, 340 Putnam Ave. 
 Clerk, William H. Allen, 255 Vernon Ave. 
 Assistant Clerk, Edward L. Stryker, 302 Tompkins Ave. 
 Stenographer, Charles J. Doyle, 75 Vanderbilt Ave. 
 Interpreter, Jacob F. Becker, 121 Stagg St. 
 Attendants, Samuel A. Ackerman, 510 Monroe St. 
 J. Nelson Magee, 21 Sterling Place. 
 John S. Matson, 1166 Gates Ave. 
 Marshals, John Wagner, 544 Hart St. 
 
 Charles N. Pracht, 780 Broadway. 
 Albert H. Blenderman, 24 Fayette St. 
 Telephone, 582 Williamsburg. 
 
 THIRD JUDICIAL DISTRICT. 
 
 Court held at 6 Lee Ave. 
 
 Trial days, every day except Saturday. 
 
 Justice, WILLIAM J. LYNCH, 247 Leonard St. 
 Clerk, John W. Carpenter, 199 Kent St. 
 Assistant Clerk, Arthur J. Higgins, 43 Marcy Ave. 
 Stenographer, John W. Richards, 13 Halsey St. 
 Interpreter, Emil Klebauer, 829 Manhattan Ave. 
 Attendants, Walter P. Casey, 97 Russell St. 
 
 Edward S. Wilson, 20 Putnam Ave. 
 Patrick Courtney, 1731 Fulton St. 
 Marshals, Bernard J. Reilly, Court House. 
 Richard Wright, Court House. 
 Frederick C. Meyer, Court House. 
 Frederick C. Cabble, Court House. 
 William B. Hobby. Court House. 
 
 Telephone, 785 Williamsburg. 
 
 FOURTH JUDICIAL DISTRICT. 
 Court held at 14 Howard Ave. 
 Trial days, every day except Saturday, Sunday, and holidays. 
 
 Justice, THOMAS H. WILLIAMS, 555 Decatur St. 
 Clerk, Herman Gohlinghorst, 689 Bushwick Ave.
 
 xxxii Names of Justices, Cleeks, Etc. 
 
 Assistant Clerk, James P. Sinnott, 118 Arlington Ave. 
 Stenographer, John F. Reilly, 338 Hart St. 
 Interpreter, Hyman Rayfiul, 1701 Pitkina Ave. 
 Attendants, Wiiliam McKee, 17ti Lorimer St. 
 Robert Hill, 935 Jefferson Ave. 
 Louis Ulm, 13 Dittmars St. 
 Marshals, John Wagner, 544 Hart St. 
 
 David Goldberg, 402 Sackman St. 
 
 Telephone, 303 Bushwick. 
 
 FIFTH JUDICIAL DISTRICT. 
 
 Court held at 22d St. and Bath Ave., Bath Beach. 
 Trial days, Monday, Tuesday, and Thursday. 
 
 Justice, CORNELIUS FURGUESON, Bath and 22d Aves. 
 Clerk, Jeremiah J. O'Leary, 275 58th St. 
 Assistant Clerk, Eugene A. Curran, 184 Clarkson St. 
 Stenographer, Joseph N. B.- Rawle, 552 lcth St. 
 Interpreter, Alfred Htjttingler, Bay 25th St., near Cropsey Ave. 
 Attendants, John F. Dwyer, Kimball's Road. 
 
 Peter C. Moore, 1917 Benson Ave. 
 
 Cornelius Snedeker, Cropsey Ave. and Bay 43d St. 
 Marshal, Alonzo F. Glover, 116 Ashland Place. 
 Telephone, 83 Bath Beach. 
 
 BOROUGH OF QUEENS. 
 
 FIRST JUDICIAL DISTRICT. 
 
 Court held at 46 Jackson Ave. 
 
 Trial days, Monday, Wednesday,, and Friday. 
 
 Justice, THOMAS C. KADIEN, 140 12th St. 
 Clerk, Thomas F. Kennedy, 225 Grand Ave. 
 Assistant Clerk, Eugene J. Dennen, 147 9th St. 
 Stenographer, John J. Sullivan, 36 Hoyt Ave., Astoria. 
 Attendants, Thomas White, 120 Broadway. 
 
 Henry A. Smith, 396 Ditmar Ave. 
 Marshal, Conrad Diestel, 429 Jackson Ave., Long Island City.
 
 Names of Justices, Clerks, Etc. xxxiii 
 
 SECOND JUDICIAL DISTRICT. 
 
 Court held at Broadway and Court St., Elmhurst. 
 Trial days, Monday, Wednesday, and Friday. 
 
 Justice, WILLIAM RASQUIN, Jr., 137 Barclay St., Flushing. 
 Clerk, Henry Walter, Jr., Juniper Ave., Middle Village. 
 Stenographer, C. Herbert Burns, Richmond Hill. 
 Attendants, Frederick W. Bieling, Lexington Ave., Maspeth. 
 
 Philip Meters, Jay Ave., Maspeth. 
 Marshals, August C. Brust, Maspeth. 
 
 Frank Ryan, 114 Broadway, Flushing. 
 Telephone, 4 Newtown. 
 
 THIRD JUDICIAL DISTRICT. 
 Court held at Town Hall, Jamaica. 
 Trial days, Monday, Wednesday, and Friday. 
 
 Justice, JAMES F. McLAUGHLIN, Jamaica. 
 Clerk, George W. Damon, Jamaica. 
 Stenographer, John L. Guydir, Jamaica. 
 Attendants, Thomas Fox, Jamaica. 
 
 Joseph Kesiler, Jamaica. 
 Marshals, William N. George, Jamaica. 
 
 Thomas J, Hobby, Far Rockaway. 
 
 BOROUGH OF RICHMOND. 
 
 FIRST JUDICIAL DISTRICT. 
 
 Court held at Lafayette Ave. and 2d St., New Brighton, Staten 
 
 Island. 
 Trial days, Tuesday and Thursday. 
 
 Justice, JOHN J. KENNEY, New Brighton. 
 Clerk, Francis F. Leman, Port Richmond. 
 Assistant Clerk, Robert Humphrey, Port Richmond. 
 Stenographer, Frank McGoey, New Brighton. 
 Attendants, Edward Finnerty, New Brighton. 
 
 Frank Langford, New Brighton. 
 Marshal, James Thompson, Port Richmond. 
 
 Telephone, 98 West Brighton. 
 
 iii
 
 xxxiv Names of Justices, Clekks, Etc. 
 
 SECOND JUDICIAL DISTRICT. 
 
 Court held at Village Hall, Stapleton, Staten Island. 
 Trial days, every day except Sunday and legal holidays. 
 
 Justice, GEORGE W. STAKE, Stapleton — Post-office. 
 Clerk, Peter Tierxan. Stapleton — Post-office. 
 Assistant Clerk, William J. Browne, Stapleton — Post-office. 
 Stenographer, John G. Farrell, Stapleton — Post-office. 
 Attendant, Charles Warnecke, Stapleton — Post-office. 
 Marshals, Thomas McCormack, 340 Bay St., Southfield. 
 Robert F. Goggin, Court House. 
 
 Telephone, 81 Tompkinsville. 
 
 » ' .' \
 
 THE 
 
 GREATER NEW YORK CHARTER 
 
 ENACTED IN 1897 AND AMENDED BY 
 
 Laws 1901, Chapter 466, relative to the Municipal 
 Court of the City of New York. 
 
 AN ACT to amend the Greater New York Charter, 
 chapter three hundred and seventy-eight of the laws 
 of eighteen hundred and ninety-seven, entitled "An act 
 to unite into one municipality under the corporate 
 name of the City of New York, the various communities 
 lying in and about New York harbor, including the city 
 and county of New York, the city of Brooklyn and the 
 county of Kings, the county of Richmond and part of 
 the county of Queens, and to provide for the govern- 
 ment thereof." 
 
 Passed without the acceptance of the city. Became a law April 22, 
 1901, with the approval of the Governor. Passed, three-fifths being 
 present. 
 
 The People of the State of New York, represented in 
 Senate and Assembly, do enact as follows: 
 
 Section 1. Chapter Three Hundred and Seventy- 
 eight of the Laws of Eighteen Hundred and Ninety- 
 seven, Entitled " An Act to Unite into One Munici- 
 pality Under the Corporate Name of The City of New 
 York, the Various Communities Lying in and About 
 New York Harbor, Including The City and County of 
 
 Fi]
 
 2 Boundaries, Boroughs, Powers, Etc. Char., § 1. 
 
 New York, the City of Brooklyn, and the County op 
 Kings, the County ok Richmond and Part of the 
 County of Queens, and to Provide for the Government 
 
 Thereof," is hereby amended so as to read as follows: 
 
 CHAPTEK I. 
 
 BOUNDARIES, BOROUGHS, POWERS, RIGHTS AIsD OBLIGA- 
 TIONS OF THE CITY. 
 
 § 1. The City of New York; corporations consolidated; territories; 
 short title of this act. 
 
 2. Division into boroughs. 
 
 3. Name: power and rights of the corporation; seal. 
 
 The City of New York; corporations consolidated; territories; 
 short title of this act. 
 
 CHARTER, § 1. All the municipal and public 
 corporations and parts of municipal and public corpo- 
 rations, including cities, villages, towns and school dis- 
 tricts, but not including counties, within the following 
 territory, to wit : The county of Kings, the county of 
 Richmond, the city of Long Island City, the towns of 
 Newtown, Flushing and Jamaica, and that part of the 
 former town of Hempstead, as it existed on the thirty- 
 first day of December, eighteen hundred and ninety- 
 seven, bounded on the east and north by the east and 
 north bounds of the former village of Far Rockaway, 
 and on the east by a line drawn due north from the 
 northwest corner of said village to the south line of 
 the town of Jamaica, as it existed on the thirty-first 
 day of December, eighteen hundred and ninety-seven, 
 are hereby annexed to, united and consolidated with 
 the municipal corporation known as the mayor, alder- 
 men and commonalty of the city of New York, to be 
 hereafter called, "The City of New York;" and the
 
 Char., § 2. Divisiox into Boroughs. 3 
 
 boundaries, jurisdictions and powers of the said city 
 of New York herein constituted, are for all purposes 
 of local administration and government, hereby de- 
 clared to be co-extensive with the territory above de- 
 scribed ; and the said city of New York is hereby de- 
 clared to be the successor corporation in law and in fact 
 of all the municipal and public corporations united and 
 consolidated as aforesaid, with all their lawful rights 
 and powers, and subject to all their lawful obli- 
 gations, without diminution or enlargement except as 
 herein otherwise specially provided ; and all of the 
 duties and powers of the several municipal and public 
 corporations united and consolidated as aforesaid into 
 The City of New York are hereby devolved upon the 
 board of aldermen of the said city of New York, so 
 far as the same are applicable to said city, and not 
 herein otherwise specially provided, to be exercised in 
 accordance with the provisions of this act. This act 
 may be cited by the short title of " The Greater New 
 York Charter." 
 
 Notes to Charter section i. 
 
 For boundaries of the city and county of New York, see Laws 1882, 
 chap. 410, § 1; Laws 1885, chap. 469, and Laws 1895, chap. 934. 
 
 Kings and Richmond. Laws 1788, chap. 64. 
 
 Towns of Newtown, Flushing, Jamaica, and Hempstead. Laws 1788, 
 chap. 64. By Laws 1899, chap. 379, a part of the former town of 
 Hempstead was excluded from the city and included in the present 
 town in the county of Nassau. 
 
 Long Island City was formerly a part of the town of Newtown. Laws 
 1871, chap. 461. 
 
 Division into boroughs. 
 
 CHARTER, § 2. The City of New York, as con- 
 stituted by this act, is hereby divided into five bor-
 
 4 Division into Boroughs. Char., § 2. 
 
 oughs to be designated respectively : Manhattan, The 
 Bronx, Brooklyn. Queens and Richmond ; the bound- 
 aries whereof shall be as follows : 
 
 1. The borough of Manhattan shall consist of all 
 that portion of The City of New York, as hereby con- 
 stituted, known as Manhattan Island, Nuttin or Gover- 
 nor's Island, Bedloe's Island, Bucking or Ellis Island, 
 the Oyster Islands, and also Blackwell's Island, Ran- 
 dall's Island and Ward's Island, in the East or Har- 
 lem rivers. 
 
 2. The borough of The Bronx shall consist of all 
 that portion of The City of New York as hereby 
 constituted, lying northerly or easterly of the borough 
 of Manhattan, between the Hudson river and the East 
 river or Long Island Sound, including the several 
 islands belonging to the municipal corporation hereto- 
 fore known as the mayor, aldermen and commonalty 
 of the city of New York, not included in the borough 
 of Manhattan. 
 
 .">. The borough of Brooklyn shall consist of that 
 portion of The City of New York, as hereby consti- 
 tuted, hitherto known as the city of Brooklyn. 
 
 4. The borough of Queens shall consist of the terri- 
 tory known as Queens county. 
 
 5. The borough of Richmond shall consist of the 
 territory known as Richmond county. 
 
 Notes to Charter section 2. 
 
 Section 1 of this act states the constituent territorial parts of each 
 borough. 
 
 By section 1358 of said act each of tl.ese boroughs are divided 
 into districts, and section 1359, t<> and including section 13G3 state 
 the territory and wards embraced within, and comprising each district.
 
 Char., § 3. Name ; Powers and Rights, Etc. 5 
 
 By Laws 1899, chap. 379, certain territory was excluded from the 
 Greater New York city and was annexed to the town of Hempstead in 
 the county of Nassau. 
 
 Name; powers and rights of the corporation; seal. 
 
 CHARTER, § 3. The name of the corporation con- 
 stituted by this act shall be " The City of New York," 
 and the same shall by that name, be a body politic and 
 corporate in fact and in law with power to contract 
 and to be contracted with, to sue and be sued, to have 
 a common seal and to have perpetual succession, with 
 all of the rights, properties, interests, claims, demands, 
 grants, powers, privileges and jurisdictions held by the 
 mayor, aldermen and commonalty of the city of New 
 York, and held by each of the municipal and public 
 corporations or parts thereof, other than counties, by 
 this act united and consolidated with the corporation 
 known as the mayor, aldermen and commonalty of the 
 city of New York, except so far as modified or repealed 
 by the provisions of this act, 
 
 CHAPTER XX. 
 
 INFERIOR LOCAL COURTS. 
 
 Title 2. The Municipal Court of the City of New York. 
 5. Interpreters. 
 
 TITLE 2. 
 The Municipal Court of the City of New York. 
 § 1350. Courts, etc., abolished. 
 
 1351. Municipal court created. 
 
 1352. Justices. 
 
 1353. Qualifications, etc., of justices. 
 
 1354. Oath. 
 
 1355. Salary. 
 
 1356. Terms. 
 
 1357. Vacancies. 
 
 1358. Districts. 
 
 1359. Borough of The Bronx.
 
 G Municipal Court Created. Char., §§ 1350, 1351. 
 
 § 13(K). Borough of Manhattan. 
 L361. Borough of Brooklyn. 
 1362. Borough of Queens. 
 
 1303. Borough of Richmond. 
 
 Courts, etc., abolisned. 
 
 CHARTER, § 1350. From and after midnight of 
 the thirty-first day of January, eighteen hundred and 
 ninety-eight, the justices' courts and the office of 
 justice of the peace in the cities of Brooklyn and 
 Long Island City are abolished, and all jurisdiction, 
 power, authority and duty theretofore vested in said 
 courts and justices of the peace, and in the clerks, 
 officers, interpreters, stenographers and employes of 
 said courts and justices shall cease and determine, 
 except as provided in the next section and section 
 thirteen hundred and seventy-two of this act; and 
 from and after the passage of this act no person shall 
 be elected to the office of district court justice or jus- 
 tice of the peace in any portion of the territory 
 included within The City of New York as constituted 
 by this act. 
 
 Note to Charter section 1350. 
 
 Section 1372, mentioned in this section, had reference to seals and 
 was repealed by " The Municipal Court Act of The City of New York *' 
 (Laws 1902, chap. 580, § 364). It is now contained in section 18 of 
 said Municipal Court Act, so cited by section 365 thereof. 
 
 Municipal court created. 
 
 CHARTER, § 1351. On and after the first day of 
 January, eighteen hundred and ninety eight, the dis- 
 trict courts of the city of New York and the justices' 
 courts of the first, second and third districts of the 
 city of Brooklyn are hereby continued, consolidated
 
 Char., § 1352. Justices. 7 
 
 and reorganized under the name of " The Municipal 
 Court of The City of New York," which said court 
 shall be a local civil court within The City of New 
 York as constituted by this act, and shall not be a 
 court of record or have any equity jurisdiction ; but 
 shall have the jurisdiction, powers, duties and organ- 
 ization hereinafter prescribed. 
 
 Notes to Charter section 135 1. 
 
 Not a new court. — When this section went into enect under " The 
 Greater New York Charter" (Laws 1897, chap. 378), many conflicting 
 decisions followed whether this section did or did not create a new 
 local inferior court contrary to the Constitution of the State, but the 
 question was finally settled by the Court of Appeals in Worthington v. 
 London O. & A. Co., 164 N. Y. 81, deciding that " The Municipal Court 
 of The City of New York as created by ' The Greater New York Charter ' 
 (Laws 1897, chap. 378, § 1351) is not a new court, but a continuation, 
 consolidation, and reorganization of the former District Courts of the 
 old city of New York, and the justices' courts in the first, second, 
 and third districts of the old city of Brooklyn, under a new name." 
 See also Menthen v. Eyelis, 23 Misc. 98; Advertising v. Boston Dental 
 Assn., 23 Misc. 663; Stuber v. Coler, 164 N. Y. 24. 
 
 This court forms a part of the judicial system of the State. Const., 
 art. 6, § 18; Hartman v. The Mayor, 51 How. Pr. 351: Qitin v. The 
 Mayor, 44 How. Pr. 266, affd., 53 N. Y. 627: People ex rel. Phelps v. 
 General Sessions, 13 Hun, 397, followed in 19 Hun, 84, 86. 
 
 Constitutionality. — The statute establishing the Municipal Court of 
 The City of New York, — held constitutional. Irwin v. Metropolitan 
 St. Ry., 38 App. Div. 253, 57 N. Y. Supp. 21, affg. 54 Tm. Y. Supp. 195; 
 Worthington v. London, etc., 164 N. Y. 81. 
 
 The organization of this court is not unconstitutional, because the 
 justices are elected in specified districts in the city and exercise their 
 functions in various other districts, as it is governed by section 17, arti- 
 cle 6 of the Constitution of 1894. People v. Dooley, 69 App. Div. 512. 
 
 Justices. 
 
 CHARTER, § 1352. The said court shall be held 
 by justices to be elected or appointed, as follows : 
 
 1. The justices of said district courts of The City 
 of New York and said justices of the peace in the first,
 
 8 Election ok Successors, Etc. Char., § 1352. 
 
 second and third districts of the city of Brooklyn, in 
 office on the first day of January, eighteen hundred 
 and ninety-eight, shall continue for the remainder of 
 the terms for which they were elected or appointed, 
 and shall be called justices of the municipal court of 
 The City of New York, and shall have all the powers 
 and jurisdiction and be subject to all the duties and 
 requirements hereinafter prescribed for justices of said 
 municipal courts.* 
 
 Election of successors. 
 
 2. The successors of the justices mentioned in the 
 first subdivision of this section shall be elected by the 
 electors of the districts for which said justices w r ere 
 elected or appointed respectively, as described and 
 renumbered in sections thirteen hundred and fifty-nine, 
 thirteen hundred and sixty and thirteen hundred and 
 sixty-one of this act, at the general election to be held 
 in the year at the end of which the terms of said 
 justices shall expire. 
 
 Id.; when terms expire in 1897. 
 
 3. There shall be elected' at the general election to 
 be held on the first Tuesday succeeding the first 
 Monday of November, in the year eighteen hundred 
 and ninety-seven as many justices of said municipal 
 court as there shall be justices of the said district 
 courts in the city of New York or justices of the peace 
 of the said first, second and third districts, in the city 
 of Brooklyn, whose terms expire at the end of year 
 
 * So in original of charter of 1897, as amended in 1901, should be 
 " court."
 
 Char., § i;352. Additional Justices. 9 
 
 eighteen hundred and ninety-seven. Such justices 
 shall be elected by the electors of the districts for 
 which such justices whose terms expire in eighteen 
 hundred and ninety-seven were elected or appointed, 
 as described and renumbered in sections thirteen hun- 
 dred and fifty-nine, thirteen hundred and sixty and 
 thirteen hundred and sixty-one of this act. 
 
 Additional justices. 
 
 4. On or before the twentieth day of January, 
 eighteen hundred and ninety-eight, the mayor of The 
 City of New York shall appoint seven additional jus- 
 tices of said municipal court, two of whom shall be 
 residents of the fourth and fifth districts of the bor- 
 ough of Brooklyn, three of whom shall be residents 
 of the first, second and third districts of the borough 
 of Queens, and two of whom shall be residents of the 
 first and second districts of the borough of Richmond, 
 respectively. The justices so appointed shall hold 
 office till the thirty-first day of December, eighteen 
 hundred and ninety-nine, and their successors shall be 
 elected at the general election to be held in the year 
 eighteen hundred and ninety-nine, and shall be resi- 
 dents of the same districts as the justices appointed 
 pursuant to this subdivision. 
 
 Notes to Charter section 1352. 
 
 Not a city officer. — A civil justice in The City of New York is not an 
 officer or employee of the city government, under section 95, of chapter 
 335, Laws of 1873. §§ 95 or 97 (being the city charter) ; Hartman v. 
 Mayor, 51 How. Pr. 351.; Quinn v. Mayor, 44 How. Pr. 266; affd., 53 
 N. Y. 627 : People ex rel. Phelps v. General Sessions, 13 Hun, 397, fol- 
 lowed in 19 Hun, 84, 86.
 
 10 Additional Justices. Chae., § 1352. 
 
 Election held invalid.-- An act of the Legislature (Laws i860, chap. 
 217, § 1), appointing a different time for the election of justice from 
 that prescribed by the act creating the office (Laws 1800, chap. 300), 
 repealed so much of the latter act, and an election under it was invalid. 
 7'he People ex rel. Fouler v. Bull, 40 N. Y. 57. 
 
 Continuance in office. — This section provides that the justices, in 
 office on January 1, 1808, shall continue for the remainder of their 
 terms and shall be called justices of the Municipal Court. The Rail- 
 way Advertising Co. v. The Boston Dental Association, 23 Misc. Rep. 
 663. 
 
 Duties, liability, and powers of a justice. — Under title I of this act 
 the jurisdiction and general powers of the court are specified and such 
 powers as are expressed in subdivisions 15 and 19 of section 1 of that 
 title which formerly were perfcrmed by the justice are now done by the 
 court. See also note to § 1, "Jurisdiction," and §§ 15, 19, and notes. 
 There are many incidental duties and powers of the justices, and their 
 liability in damages for their acts, which must be noted under this 
 section of the charter as we know of no other more appropriate place, 
 bee also §§ 10 to 20. 
 
 Altering docket after time limited to render judgment was held void 
 in Dauchy v. Brown, 41 Barb. 555. 
 
 Arrest, judgment for. — It is the duty of the justice to state in the 
 judgment that the defendant is subject to arrest in a proper case. Car- 
 pentier v. Willett, 31 N. Y. 90; s. c, 1 Keyes, 510. 
 
 Conversion; boarding-house keeper's lien; judgment. — An action to 
 enforce a boarding-house keeper's lien upon property of a boarder which 
 he has clandestinely removed is one for conversion of personal property 
 within the meaning of subdivision 2 of section 2895 of the Code, and the 
 justice is bound to insert in the judgment the liability of the defendant 
 to arrest upon execution. Babcock v. Smith, 47 N. Y. St. Rep. 118; 
 s. c, 19 N. Y. Supp. 817. 
 
 Jury trial, may direct. — A justice has power, within eight days 
 (now fourteen days) after the conclusion of a trial before him, to 
 direct a trial by jury. Lemier v. Stearns, 15 Misc. Rep. 7. 
 
 Where a judgment has been reversed and a new trial ordered, the 
 justice has power, on the second trial, to direct that the trial be had 
 by jury. \< ;w York Small Stock Co. v. The Third Ave. R. R. Co., 16 
 Misc. Rep. 04. 
 
 Interest, relationship of counsel. — He cannot act in any case where 
 he has an interest (11 Johns. 70); or bears relationship to parties 
 (17 Johns. 133 13 Johns. 191; 12 How. Pr. 367; 19 Johns. 172) ; or 
 had been counsel (12 Abb. Pr. 348). 
 
 Keeping court open and trial on Sunday. — See notes to § 17. 
 
 Marriages. — The justices may solemnize marriages. Laws 1889, 
 chap. 415, subd. 3, and Laws 1896, chap. 272, p. 217.
 
 Char., § 1352. Additional Justices. 11 
 
 Penalty, action for a. — Justice to fix amount of penalty where the 
 law does not fix it in actions by department of health, and the amount 
 to be not less than $80. Charter, § 1262. 
 
 Relationship of justice to any of the parties renders the judgment 
 illegal and void. Chapin v. Churchill, 12 How. Pr. 367 ; Baldwin v. 
 McArthur, 17 Barb. 415. 
 
 Term of office, finishing trial and return to writs after. — See notes 
 to § 16. 
 
 Transcript of proceedings, etc. — The justice may give a transcript 
 of any proceedings had before him or any other paper filed with him, 
 or of the minutes of any testimony taken by, or before him, certified 
 by him to be correct, and shall be presumptive evidence of the facts 
 therein contained. § 15. 
 
 Volunteering. — It is not proper for the justice to volunteer to make 
 amendments not moved for by either party. Lloyd v. Fox, 1 E. D. 
 Smith, 101 ; Enright v. Seymour, 8 N. Y. St. Rep. 356. 
 
 Liability of the justice. — ihe justice must act in strict conformity 
 with the statutes, and if he exceeds these powers his proceedings are 
 absolutely void, and he is liable for damages. Law v. Rice, 8 Johns. 
 409: Clyde d- Rose Plank Road Co. v. Parker, 22 Barb. 323; Vosburgh 
 v. Tl>/c7(, 11 Johns. 174: Kerr v. Blount, 28 N. Y. 659; Van Low v. 
 King, 3 Cowen, 375. 
 
 Delaying entry of judgment. — Where the justice, upon the return 
 day ot the summcns, having the summons, verified complaint, and due 
 proof of service upon the defendant before him, and no answer being 
 filed by defendant, refused to give judgment for the plaintiff as re- 
 quired by sections 3126, 3207 of the Code, but adjourned the case for 
 three days, and then entered judgment for the plaintiff, and the plaintiff 
 commenced suit against the justice, setting up in his complaint the 
 above facts, and alleging that by reason of the failure of the justice 
 to enter judgment for three days, other creditors, in the interim, had 
 levied upon the property of the defendants in the action, and the plain- 
 till' had lost his debt. Held, that the justice did not exceed his juris- 
 diction in adjourning the ease for three days, without summarily 
 entering judgment. Merwin et al. v. Rogers, 24 N. Y. St. Rep. 496. 
 
 An action for damages at the suit of an individual is not maintain- 
 able against a justice, because of his failure to render judgment in 
 an action tried before him within four days after its final s\ibmission. 
 
 As to whether, where it appears that the justice in fact decided the 
 case hut omitted to enter it in his docket within the four days, he 
 would be liable, quaere. Everts v. Kiehl, 102 N. Y. 296. 
 
 Error of judgment. — Although this court is a court of limited juris- 
 diction, yet where the justice's act is an error of judgment, it does 
 not subject him to suit, but he is entitled to protection afforded to a 
 judge of a court of record. Merwin v. Rogers, 24 N. Y. St. Rep. 496.
 
 12 Additional Justices. Char., § i:>52. 
 
 See also Austin v. Vrootndn, 40 X. Y. St. Rep. 338; Fischer v. Lang- 
 bein, 103 X. V. 84; Eandshaw v. Artftttr, 9 App. Div. 175. 
 
 Erroneous, irregular, or void process. — For the differences between 
 void and irregular or erroneous process and the liability of courts and 
 attorneys, see the very able opinion by the deceased Chief Justice 
 Ruger, in the case of Fischer v. Langbein, 103 X. V. 84. See also Far- 
 riiii/hm v. Root, 10 .Misc. Rep. .'{47. 
 
 Exceeding his power. — Fustice is liable, therefore, in damages. 
 Cowen's Treatise, vol. 1. SS 17. 20, 665, 667, 680, 684, 695, 697, 698, 
 804, 847; 11 Johns. 44, 177: 28 X. V. 659; 15 Johns. 152; 10 Wend. 
 420; 4 Den. 118. 
 
 He is not liable for errors committed in the exercise of his powers or 
 authority, where he has jurisdiction of the person or subject-matter. 
 Jurisdiction being established, the court may proceed to almost any 
 length in the exercise of its judicial functions, without incurring any 
 liability. 4 Den. 120; 11 X. V. tl Kern.) 573; 19 Barb. 283: 38 Barb. 
 339; Cowen's Treatise, SS 17, IS. 660, 662, 084, 697, 698, 830, 1247. 1563. 
 
 A well-considered discussion of the grounds and limits of exemption 
 from liability for judicial acts will be found in the opinion of Justice 
 Brewer in Cook v. Bangs, 24 N. Y. St. Rep. 545, where plaintiff sued a 
 justice of the peace who had committed him for contempt and, the com- 
 mitment having been in excess of the justice's jurisdiction, claimed that 
 the action could be sustained on an allegation of malice. The court 
 held that in the case of a justice of the peace, as well as in that of a 
 justic?. of a Superior Court, transcending the limits of an actual juris- 
 diction is not actionable, although the assumption of a jurisdiction 
 wholly nonexistent may be. See also Fischer v. Langbein, 103 N. Y. 
 84; Eandshaw v. Arthur, 9 App. Div. 175. 
 
 False return. — A justice acts ministerially, and is liable for a false 
 return for any damages which a party may sustain. McDonnell v. 
 Buffum, 31 How. Pr. 1.14 ; Houghton v. Swartout, 1 Den. 589; Tomp- 
 kins v. Hands, 8 Wend. 402: Cunningham v. Bucklin, 8 Cow. 178; 
 Scott v. Rush man, 1 Cow. 202. 
 
 Upon appeal from a judgment, the appellate court cannot consider 
 affidavits submitted for the purpose of contradicting the justice's return. 
 Ihe court is governed by the return, and if it is untrue, the remedy 
 is by action against the justice for a false return. Fitzsimmons v. 
 Baxter, 3 Daly, 82. 
 
 Misdemeanor. — In Newberger v. Campbell, .58 How. 313, it was 
 held that the justice is liable for a misdemeanor, and that the judgment 
 is void, if it was obtained by a person not a party, or an attorney. 
 s. c, 9 Daly, 102; Kaplan v. Herman. 37 Misc. Rep. 502. 
 
 Permitting person not an attorney to practice. — Where a judge 
 knowingly permits to practice in his court a person not regularly ad- 
 mitted to practice, his judgment rendered in a cause so conducted in
 
 Char., § 1353. Qualifications, Etc., of Justices. 13 
 
 violation of law is void ami will be reversed. Xeicburger v. Campbell, 
 58 How. 313: s. c, 9 Daly, 102; Kaplan v. Berman, 37 Misc. Rep. 502. 
 
 Qualifications, etc., of justices. 
 
 CHARTER, § 1333. No one shall hereafter be 
 eligible to the office of justice of the said municipal 
 court, after the first day of March, eighteen hundred 
 and ninety-nine, unless he be a resident and elector in 
 the district for which he shall be elected or appointed 
 and has been an attorney and counsellor-at-law of the 
 sate of New York for at least five years or unless he 
 shall have served as a justice of such municipal court. 
 None of said justices shall engage in any other busi- 
 ness, profession, or hold any other public office or act 
 as referee or receiver, but each of such justices shall 
 devote his whole time and capacity, so far as the pub- 
 lic interest demands, to the duties of his office ; pro- 
 vided, however, that this restriction shall not apply to 
 the justices of said court mentioned in subdivision one 
 of section thirteen hundred and fifty-two of this act. 
 
 Notes to Charter section 1353. 
 
 This section supersedes section 1282 of the Consolidation Act, which 
 ■was originally derived from Laws 1857, chap. 344, § 5, and Laws 1899, 
 chap. 2.34, p. 454. 
 
 Attorney. Tustice may act as attorney in his own case. Libby v. 
 
 Rosekrans, 55 Barb. 202. 
 
 Disqualification cf justice; death or removal of justice not to impair 
 proceedings. — See § 16. 
 
 No fees. — Xo judicial officer, except justices of the peace, shall re 
 ceive to his ov. n use any fees or perquisites of office. Const, of 1894, 
 art. VI. § 20. 
 
 A judge or other judicial officer shall not demand or receive a fee or 
 other compensation for giving his advice in a matter or thing pending 
 before him, or which he has reason to believe will be brought before 
 him for decision ; or for preparing a paper or other proceeding relating 
 to such a matter or thing; except a justice of the peace, in a case
 
 14 Oath; Salary. Char., §§ 1354, 1355. 
 
 where a fee is expressly allowed to him by law. Code Civ. Proc., 
 § 51 j McLarren v. Charrier, 5 I'aige, 530. 
 
 Witness; proceedings in case justice is a. — See S 00. The justice 
 must be both a materia] and necessary witness, which must be shown 
 by tacts, and the justice is to judge of the sufficiency of the affidavit. 
 Young v. Scott, 3 Hill, 32 ; Murtha v. Walters, 2 Sandf. 517; Board of 
 Excise, i tc. v. Doherty, 10 How. Pr. 40. 
 
 When the cause was called for trial defendant presented an affidavit 
 showing thai the judge was a material witness, without whose- testi- 
 mony the defendant could not safely proceed to trial, and moved that 
 the trial might be had before another judge. The motion was denied 
 on the ground that the judge, as he then stated, " could give no evi- 
 dence of anything except what appeared on his minutes." Held, the 
 cause should have been tried by another judge; that the right of the 
 defendant to have the evidence of the judge ought not to have been 
 defeated. Brown v. Brown, 2 E. D. Smith, 154; Hopkins v. Calray, 24 
 Wend. 204. 
 
 For proceedings where the justice is a material witness, see also 
 Cowen's Treatise, §§ 981 to 984. 
 
 Oath. 
 
 CHARTER, § 1354. The justices elected or ap- 
 pointed pursuant to this act shall, before entering 
 upon their duties, take the oath of office prescribed by 
 the constitution, and file the same with the city 
 clerk. 
 
 Salary. 
 
 CHARTER, § 1355. The salary of each of said 
 justices, except those appointed or elected from the 
 boroughs of Queens and Richmond, shall be six thou- 
 sand dollars a year, to be paid in equal monthly instal- 
 ments by the proper officers of said city, and the salary 
 of each of said justices appointed or elected for the 
 boroughs of Queens and Richmond shall be five 
 thousand dollars a year, to be paid in the same 
 manner.
 
 Char., § 1350. Terms. 15 
 
 Notes to Charter section 1355. 
 
 This section supersedes section 1283 of the Consolidation Act (Laws 
 1882, chap. 410). 
 
 In Goetting v. City of New York, 29 Misc. Rep. 717, 61 N. Y. Supp. 
 334. it was decided that a justice of this court in the borough of 
 Brooklyn, duly appointed January 4, 1S98. was entitled to his salary 
 for that month, though the justices' courts as they had existed were 
 continued under the Charter until February 1, 1898. The late lamented 
 Justice David McAdam, at Trial Term, in deciding in favor of the 
 justice, said: " Such a result as contended for by the city could only fol- 
 low the mistaken notion that a fixed salary belonging to a judicial 
 office must be earned by the incumbent before it is recoverable by him. 
 Such a salary is not measured by the duties the official actually per- 
 forms, or is called upon to perform, and is recoverable without regard 
 to the labors imposed, or the manner of their performance. Section 
 1374 of the Charter, providing that after the 1st of January, 1898, the 
 municipal justices were to become a board of justices, to elect a presi- 
 dent, and establish rides, showed that whatever duties were connected 
 with the organization of the board, devolved upon the plaintiff and his 
 associates during January, and these duties were performed by them. 
 There is no variation in official salaries on account of light or heavy 
 work, or the total absence of work, a feature that may perhaps have 
 attracted some to official life and led to the repeated use of that much 
 abused term ' sinecure.' " 
 
 No fees or perquisites of office to his own use. Const., art. VI, § 21. 
 And see Code Civ. Proc, § 51; McLarren v. Charrier, 5 Paige, 530. 
 
 Execution or supplementary proceedings. — The salary of justice can- 
 not be taken on execvition or in supplementary proceedings while in 
 the hands of the disbursing officer. Remmey v. Gedney and Kilpatrick 
 v. Gedney, City Court Reports, vol. 1, p. 28, Marine Court, Special 
 Term, June 19, 1876. 
 
 Terms. 
 
 CHARTER, § 1356. The terms of said justices to 
 be elected pursuant to this title shall be ten years. 
 
 Notes to Charter section 1356. 
 
 This section supersedes section 1281, Consolidation Act (Laws 1882, 
 chap. 410). 
 
 Extending term invalid. — An act of the legislature extending the 
 term of a District Court justice is unconstitutional. People ex rel. 
 Fowler v. Bull, 46 N. Y. 57, distinguishing People v. Batchellor, 22 
 N. Y. 138.
 
 16 Vacancies, Districts, Etc. Char., §§ 1357-1355). 
 
 Vacancies. 
 
 CHARTER, § 1357. Vacancies occurring in the 
 office of justice of said court shall be filled at the next 
 ensuing general election for the unexpired term com- 
 mencing on the first day of January next after said 
 election ; and the mayor of the city shall appoint some 
 proper person to fill such vacancy in the interim within 
 twenty days after the same occurs. 
 
 Note to Charter section 1357. 
 
 This section supersedes section 1281, Consolidation Act (Laws 1882, 
 chap. 410). 
 
 Districts. 
 
 CHARTER, § 1358. The several boroughs compos- 
 ing The City of New York are hereby divided into 
 districts, in each of which sessions of said municipal 
 court shall be held, as specified in the next five sections. 
 
 Note to Charter section 1358. 
 
 This section supersedes section 1280, Consolidation Act (Laws 1882, 
 chap. 410). 
 
 Borough of The Bronx. 
 
 CHARTER, § 1359. In the borough of The Bronx 
 there shall be two districts, as follow : 
 
 1. The first district embracing the territory de- 
 scribed in chapter nine hundred and thirty-four of the 
 laws of eighteen hundred and ninety-five. 
 
 Notes to Charter section 1359. subdivision 1. 
 
 Districts. — The territory embraced within the first judicial district, 
 borough of The Bronx, remains, notwithstanding its annexation to the 
 city and county of New York, part of the second judicial district and 
 department, and an appeal does not lie from this court therein, to the
 
 Char., § 1359. Borough of The Bronx. 17 
 
 Appellate Term, but to the Appellate Division of the Second Depart- 
 ment. Duckworth v. Cunningham, 26 Misc. Rep. 403, 56 N. Y. Supp. 
 191; McTurck v. Froussadier, 51 App. Div. 218, 64 N. Y. Supp. 962. 
 
 First district boundary. — "All that territory comprised within the 
 limits of the towns of Westchester, Eastchester, and Pelham, which has 
 not been annexed to the city and county of New York at the time of 
 the passage of this act, which lies southerly of a straight line drawn 
 from the point where the northerly line of the city of New York meets 
 the center line of the Bronx river, to the middle of the channel between 
 Hunter's and Glen Islands, in Long Island Sound, and all that terri- 
 tory lying within the incorporated limits of the village of Wakefield 
 which lies northerly of said line, with the inhabitants and estates 
 therein, is hereby set off from the county of Westchester and annexed 
 to, merged in and made part of the city and county of New York, and 
 of the Twenty-fourth ward of said city and county, and shall hereafter 
 constitute a part of the city and county of New York, and of the 
 Twenty-fourth ward of said city and county." Laws 1895, chap. 934, 
 § 1. 
 
 2. The second district embracing the remainder of 
 said borough. 
 
 Notes to Charter section 1359, subdivision 2. 
 
 This section supersedes section 1280, subdivision 10 of the Con- 
 solidation Act (Laws 1882, chap. 410). 
 
 Second district boundary. — This district, being the remainder of said 
 borough, comprises the Twenty-third and Twenty-fourth wards, which 
 were created out of portions of Westchester county and added to New 
 York county by Laws 1873, chapter 613. By this act the town of 
 Morrisania was made the Twenty-third ward, and the towns of West 
 Farms and Kingsbridge the Twenty-fourth ward of the city of New 
 York. 
 
 The Consolidation Act (Laws 1882. chap. 410), §§ 24 and 25, bounds 
 these wards as follows : 
 
 Twenty-third Ward. § 24. The Twenty-third ward shall include 
 all that territory which lies east and north of Harlem river and south 
 of a line beginning at a point on the southerly side of the High bridge 
 across the Harlem river; thence running easterly on a straight line to 
 a point on Mill brook, directly opposite to the line formerly dividing 
 central Morrisania from lower Morrisania, being the former northerly 
 line of lower Morrisania; thence easterly along said last-mentioned line 
 to a point one hundred and forty feet east of Franklin avenue, and 
 thence on a line produced eastwardly by the extension of the middle 
 of the main channel of the Bronx river of that portion of said last- 
 2
 
 18 Borough of Manhattan. Char,, § 1360. 
 
 mentioned Line which lies between the Third avenue and said point in 
 said line, one hundred and forty feet east of Franklin avenue, said 
 territory being the whole of the former town of Morrisania, and a 
 portion of the former town of West Farms. It shall also include North 
 Brothers Island. 
 
 Tu ENTT-FOTJRTH Ward. § 25. The Twenty-fourth ward shall em- 
 brace all that territory lying north of the Twenty-third ward and south 
 of the north boundary of the city, comprising the territory embraced 
 in the former town of Kingsbridge, and in that portion of the former 
 town of West Farms not included in the Twenty-third ward. 
 
 The territory comprising the First Judicial district of the borough of 
 The Bronx was added to the Twenty-fourth ward by Laws of 1895, 
 chapter '.i-'!4. section 1, and together with the above boundary ( § 25 of 
 the Consolidation Act) comprises the whole of the present Twenty- 
 fourth waid. 
 
 By section 1578 of "The Greater New York Charter," these wards 
 were continued and designated as follows: 
 
 Wards in boroughs of Manhattan and The Bronx; how designated.— 
 The wards of the corporation heretofore known as the mayor, al- 
 dermen, and commonalty of the city of New York are hereby con- 
 tinued, with their present boundaries and numbers, and shall be known 
 and designated as wards of the boroughs of Manhattan and The Bronx, 
 lively. Laws 1901, chap. 466, § 1578. 
 
 Power to change boundaries. — The board of aldermen may from time 
 to time by ordinance change the boundaries of wards and create other 
 wards as the public good and convenience may require. Laws 1901, 
 chap. 466. § 1582. 
 
 Borough of Manhattan. 
 
 CHARTEE, § 1360. In the borough of Manhattan 
 there shall be eleven districts, as follows : 
 
 1. The first district embraces the third, fifth and 
 eighth wards of said borough of Manhattan, and all 
 that part of the first ward lying west of Broadway 
 and Whitehall street, including Nutten or Governors 
 Island, Bedloes Island, Bucking or Ellis Island and 
 the Oyster Islands. 
 
 Notes to Charter section 1360, subdivision 1. 
 This section, with its eleven subdivisions, supersedes section 1280 of 
 the Consolidation Act (Laws 1882. chap. 410. and 1884, chap. 286).
 
 Char., § 1300. Borough of Manhattan. ID 
 
 These wards, and the wards enumerated in the following ten sub- 
 divisions of section 1300, making up the various districts, are bounded 
 and described by the Consolidation Act (Laws 1882, chap. 410), § 2, to 
 and including S 23. We have already seen that by the Charter, § 1578, 
 these wards were continued and designated as wards of the borough 
 of Manhattan (see note to § 1359, subd. 2). and that by section 1582 
 of said Charter the board of aldermen may change the boundaries of. 
 and create other wards. 
 
 Third Ward. § 4. The Third ward shall begin on the west side of 
 Hudson river, at the northwesterly corner of the First ward, and run- 
 ning thence due east to the middle of Liberty street; then through the 
 middle of Liberty street to the middle of Broadway : then through the 
 middle of Broadway to a point opposite to the middle of Reade street; 
 then through the middle of Reade street, in a line running in the same 
 direction across Hudson river, to low-water mark, on the west side 
 thereof, or so far as the bounds of the State extend ; then down the west 
 side of Hudson river, at low-water mark, or alon^ the limits of this 
 State, to the place of beginning. 
 
 Fifth Ward. § 6. The fifth ward shall begin at the northwesterly 
 corner of the Third ward, and run thence along the northerly bounds 
 thereof to' the middle of Broadway; then through the middle of Broad- 
 way to the middle of Canal street; then through the middle of (anal 
 street to Hudson river; then clue west to low-water mark, on the west 
 side of Hudson river, or so far as the bounds of this State extend; then 
 down along the west side of Hudson river, at low-water mark, or along 
 the limits of this State, to the place of beginning. 
 
 Eighth Ward. § 9. The Eighth ward shall begin at the northwest- 
 erly corner of the Fifth ward, and run thence along the northerly 
 bounds of the said ward through Canal street to the middle of Broad- 
 way; then through the middle of Broadway to a point opposite to the 
 middle of Houston street; then through the middle of Houston street 
 to a point opposite to the middle of West Houston street ; then through 
 the middle of West Houston street to Hudson river ; then due west to 
 low-water mark, on the west side of Hudson river, or so far as the limits 
 of this State extend ; then down along the west side of Hudson'river, at 
 low-water mark, or along the limits of this State, to the place of be- 
 ginning. 
 
 First Ward. The First ward shall begin in the middle of Broad- 
 way, at a point where it is intersected by the middle of Liberty street, 
 and run from the said point of intersection, through the middle of 
 Liberty street, southeasterly, to the middle of Maiden Lane; then down 
 the middle of Maiden Lane, and from thence in a straight line running 
 in the same direction across the East river, to low-water mark on 
 Nassau or Long Island : and thence along Nassau or Long Island shore, 
 at low- water mark, to the south side of Red Hook; and then across
 
 20 Borough of Manhattan. Char., § L360. 
 
 Hudson river, so as to include Nutten <>r Governor's Island, Hollow's 
 Island, Bucking or Ellis Island, and the Oyster Islands, and all the 
 waters of this State in the ba\ of New York, and to the southward 
 thereof, and which are not comprehended in any other county, to low- 
 water mark on the west side of Hudson river, or so far as the bounds 
 of this State extend then up along the west side of Hudson river, at 
 low-water mark or along the limits of this State, to a place due west 
 from the middle of the west end of Liberty street; then to the middle 
 of Liberty street; then through the middle of Liberty street to the 
 middle of Broadway, at the place of beginning. 
 
 2. The second* embraces the second, fourth, sixth 
 and fourteenth wards, and all that portion of the first 
 ward lying south and east of Broadway and White- 
 hall street. 
 
 Notes to Charter section 1360, subdivision 2. 
 
 Second Ward. § 3. The Second ward shall begin at the southeasterly 
 coiner of the First ward, and run thence along the easterly bounds 
 thereof, across the East river to the middle of Broadway; then up the 
 middle of Broadway to a point opposite the middle of Park row; then 
 through the middle of Park row to a point opposite to the middle of 
 Spruce (formerly George) street; then down the middle of Spruce 
 street to the middle of Gold street; then through the middle of Gold 
 street to a point opposite to the middle of Ferry street ; then through 
 the middle of Ferry street, in a line running in the same direction 
 across the East river to Nassau or Long Island, to low-water mark; 
 then along Nassau or Long Island, at low water, to the place of 
 beginning. 
 
 Fourth Ward. § 5. The Fourth ward shall begin at the northerly 
 corner of the Second ward, and run thence through the middle of 
 Chatham street, to a point opposite to the middle of Catharine street; 
 and thence through the midcue of Catharine street, in a line running 
 in the same direction across the East river, to low-water mark, on 
 Nassau or Long Island; then along Nassau or Long Island shore, at low- 
 water mark, to the bounds of the Second ward : and then northwesterly 
 along the bounds of the Second ward, to the place of beginning. 
 
 Sixth Ward. § 7. The Sixth ward shall begin at a point in the 
 middle of Broadway, where it is intersected by the middle of Canal 
 street, and run thence through the middle of Canal street to where it 
 
 *The word " district " is omitted. It is so in the official copy of the 
 act.
 
 Chae., § 13G0. Borough ok Manhattan. 21 
 
 is intersected by the middle of Centre street; then through the middle 
 of Centre street to the middle of Walker street; then through the 
 middle of Walker and Canal streets to the middle of the Bowery road; 
 then through the middle of the Bowery road to the middle of Chatham 
 street ; then through the middle of Chatham street and Park row to 
 the middle of Broadway, and then through the middle of Broadway to 
 the place of beginning. 
 
 Fourteenth Ward. § 15. The Fourteenth ward shall begin at a 
 point in the middle of the Bowery road, where it is intersected by the 
 middle of Walker street; then through the middle of the Bowery road 
 to a point opposite the middle of Houston street; then through the 
 middle of Houston street to where it is intersected by the middle of 
 Broadway; thence through the middle of Broadway to where it is in- 
 tersected by the middle of Canal street; and then through the middle 
 of Canal, Centre, and Walker streets, being along the northerly bounds 
 of the Sixth ward, to the place of beginning. 
 
 That part of the First ward included in this district will be found 
 in the description of that ward under the notes to Charter section 1360, 
 subdivision 1. 
 
 3. The third district embraces the ninth and fif- 
 teenth wards. 
 
 Notes to Charter section 1360, subdivision 3. 
 
 Ninth Ward. § 10. The Ninth ward shall begin at the northwesterly 
 corner of the Eighth ward, and run thence along the northerly bounds 
 of the said ward through the middle of West Houston street to the 
 middle of Hancock street; thence northerly through the middle of 
 Hancock street to the middle of Bleecker street; thence northwesterly 
 through the middle of Bleecker street to the middle of Carmine street; 
 thence northeasterly through the middle of Carmine street to the middle 
 of Sixth avenue ; thence northerly through the middle of Sixth avenue 
 to the middle of West Fourteenth street; thence westerly through the 
 middle of West Fourteenth street to Hudson river; then due west to 
 low-water mark on the west side of Hudson river; or so far as the 
 limits of this State extend ; then down along the west side of Hudson 
 river, at low-water mark, or along the limits of this State, to the place 
 of beginning. 
 
 Fifteenth Ward. § 16. The Fifteenth ward shall begin at a point in 
 the middle of Fourteenth street where the middle of Sixth avenue inter- 
 sects the middle of Fourteenth street, and runs thence southerly through 
 the middle of Sixth avenue to the middle of Carmine street; thence 
 southwesterly through the middle of Carmine street to the middle of 
 Bleecker street; thence southeasterly through the middle of Bleecker
 
 22 Borough of Manhattan. Char., § L360. 
 
 street to the middle of Hancock street; thence southerly through the 
 middle of Hancock street to the middle of Houston street: thence east- 
 erly through the middle of Houston street to the middle of the Bowery 
 road; thence northerly along the middle of the Bowery road and the 
 middle of Fourth avenue to the middle of Fourteenth street, and thence 
 westerly along the middle of Fourteenth street, to the place of be- 
 ginning. 
 
 4. The fourth district embraces the tenth and seven- 
 teenth wards. 
 
 Notes to Charter section 1360, subdivision 4. 
 
 Tenth Ward. § 11. The Tenth ward shall begin at a point in the 
 middle of the Bowery road, opposite to the middle of Division street: 
 then through the middle of Division street to the middle of Norfolk 
 street; then through the middle of Norfolk street to the middle of Riv- 
 ington street: then through the middle of Rivington street to the 
 middle of the Bowery road ; then through the middle of the Bowery road 
 to tli ' place of beginning. 
 
 Seventeenth Ward. § 18. The Seventeenth ward shall begin at a 
 point formed by the intersection of the middle of Fourteenth street 
 with the middle of Avenue B, and run thence southerly along the 
 middle of Avenue B to Houston street; thence across Houston street 
 to the middle of Clinton street: thence through the middle of Clinton 
 street to middle of Rivington street; thence westerly through the 
 middle of Rivington street to the middle of the Bowery road; thence 
 northerly along the middle of the Bowery road and Fourth avenue to 
 the middle of Fourteenth street: and thence easterly along the middle 
 of Fourteenth street to the place of beginning. 
 
 5. The fifth district embraces the seventh, eleventh 
 and thirteenth wards. 
 
 Notes to Charter section 1360, subdivision 5. 
 Seventh Ward. § 8. The Seventh ward shall begin at the south- 
 easterly corner of the Fourth ward, and run thence along the easterly 
 boundary of the Fourth ward to the middle of Division street; then 
 through the middle of Division street to the middle of Grand street; 
 then through the middle of Grand street, in a line running in the same 
 direction across the East river, to low-water mark on Nassau or Long 
 [sland; then along Nassau or Long Island shore, at low-water mark, to 
 the place of beginning.
 
 Char., § 13 GO. Borough of Manhattan. 23 
 
 Eleventh Ward. S 12. The Eleventh ward shall begin at a point 
 in the middle of Rivington street, where Clinton street intersects Riv- 
 ington street : and run thence through the middle of Clinton street to 
 the middle of Avenue B, and taen northerly through the middle of 
 Avenue B to the middle of Fourteenth street ; thence easterly through 
 the middle of East Fourteenth street to the East river, and thence run- 
 ning across the East river to low-water mark on Long Island; then along 
 Long Island shore, at low-water mark, to a point, opposite the middle 
 of the easterly end of Rivington street; then in a direct line across the 
 East river through the middle of Rivington street, to the place of be- 
 ginning. 
 
 Thirteenth Ward. § 14. The Thirteenth ward shall begin at the 
 northeasterly corner of the Seventh ward, and thence along the easterly 
 and northerly line of the said ward through the middle of Grand and 
 Division streets, to the middle of Norfolk street; thence through the 
 middle of Norfolk street to where it is intersected by the middle of 
 Rivington street : then through the middle of Rivington street in a line 
 running in the same direction across the East river, to low-water mark 
 on Nassau Island ; and then along the shore of said island, at low- 
 water mark, to the place of beginning. 
 
 6. The sixth district embraces the eighteenth and 
 twenty-first wards. 
 
 Notes to Charter section 1360, subdivision 6. 
 
 Eighteenth Ward. § 19. The Eighteenth ward shall begin at a 
 point formed by the intersection of the middle of Fourteenth street with 
 the middle of Sixth avenue, and run thence northerly along the middle 
 of Sixth avenue to the middle of Twenty-sixth street ; thence easterly 
 along the middle of Twenty-sixth street in a line running in the same 
 direction across the East river to low-water mark on Long Island ; 
 thence along Long Island shore, at low-water mark, to a point opposite 
 the middle of the easterly end of Fourteenth street ; and thence in a 
 direct line across the East river through the middle of Fourteenth 
 street, to the place of beginning. 
 
 Twenty-first Ward. § 22. The Twenty-first ward shall begin at a 
 point formed by the intersection of the middle of Twenty-sixth street 
 with the middle of Sixth avenue, and run thence northerly along the 
 middle ot Sixth avenue to the middle of Fortieth street; thence easterly 
 along the middle of Fortieth street, in a line running in the same direc- 
 tion across the East river, to low-water mark on Long Island; thence 
 along Long Island shore, at low-water mark, to a point opposite the 
 middle ot the easterly end of Twenty-sixth street, and thence in a direct 
 line across the East river, through the middle of Twenty-sixth street, 
 to the place of beginning.
 
 24 Borough of Manhattan. Char., § 1360. 
 
 7. The seventh district embraces the nineteenth ward. 
 
 Note to Charter section 1360, subdivision 7. 
 NINETEENTH WABD. § 20. The Nineteenth ward shall begin at a 
 point formed by the intersection of the middle of Fortieth street with 
 the middle of Sixth ivenue, and run thence northerly along the middle 
 nt' Sixth avenue to the center of Fifty-ninth street; thence in a line 
 running in the same direction across Central park to the middle of 
 Eighty-sixth street; thence easterly along the middle of Eighty-sixth 
 street in a line running in the same direction across the East river 
 to low-water mark on Long Island; thence along Long Island shore, at 
 low-water mark, to a point opposite the middle of the easterly end of 
 Fortieth street ; and thence in a direct line across the East river along 
 the middle of Fortieth street to the place of beginning. 
 
 8. The eighth district embraces the sixteenth and 
 twentieth wards. 
 
 Notes to Charter section 1360, subdivision 8. 
 
 Sixteenth Ward. § 17. The Sixteenth ward shall begin at the north- 
 westerly corner of the Fifteenth ward, at a point in the middle of 
 Fourteenth street where the middle of Sixth avenue intersects the 
 middle of Fourteenth street, and run thence along the middle of Four- 
 teenth street to Hudson river; thence westerly and along the northerly 
 boundary of the Ninth ward to low-water mark on the west side of 
 Hudson river, or so far as the limits of this State extend; thence north- 
 erly along the west side of Hudson river, at low-water mark, or along 
 the limits of this State, to a point opposite the middle of the westerly 
 end of Twenty-sixth street; thence in a direct line across Hudson river 
 through the middle of Twenty-sixth street to the middle of Sixth 
 avenue, and thence southerly along the middle of Sixth avenue to the 
 place of beginning. 
 
 Twentieth Ward. § 21. The Twentieth ward shall begin at a point 
 formed by the intersection of the middle of Twenty-sixth street with 
 the middle of Sixth' avenue, and run thence westerly along the middle 
 of Twenty sixth street to Hudson river; thence westerly along the 
 northerly boundary of the Sixteenth ward to low-water mark on the 
 west side of Hudson river, or so far as the limits of the State extend ; 
 thence northerly along the west side of Hudson river, at low-water mark, 
 or along the limits of this State, to a point opposite the middle of the 
 westerly end of Fortieth street; thence in a direct line across Hudson 
 river, through the middle of Fortieth street to the middle of Sixth ave- 
 nue, and thence southerly along the middle of Sixth avenue to the place 
 of beginning.
 
 Char., § 13G0. Borough of Manhattan. 25 
 
 9. The ninth district embraces the twelfth ward, 
 except that portion thereof which lies west of the 
 center line of Lenox or Sixth avenue and of the 
 Harlem river north of the terminus of Lenox avenue. 
 
 Note to Charter section 1360, subdivision 9. 
 
 Twelfth Ward. § 13. The Twelfth ward shall include all that part 
 of the city and county of New \ork lying northerly of a line running 
 through the middle of Eighty-sixth street from the East to the North 
 river, and south and west of Harlem river and Spuyten Duyvil creek, 
 but including Randall's and Ward's Islands. 
 
 10. The tenth district embraces the twenty-second 
 ward and all that portion of the twelfth ward which 
 is bounded* on the north by the center line of One 
 Hundred and Tenth street, on the south by the center 
 line of Eighty-sixth street, on the east by the center 
 line of Sixth avenue and on the west by the North 
 river. 
 
 Notes to Charter section 1360, subdivision 10. 
 
 Twenty-second Ward. § 23. The Twenty-second ward shall begin 
 at a point formed by the intersection of the middle of Fortieth street 
 with the middle of Sixth avenue, and run thence westerly along the 
 middle of Fortieth street to Hudson river; thence westerly along the 
 northerly boundary of the Twentieth ward to low-water mark on the 
 west side of Hudson river, or so far as the limits of the State extend; 
 thence northerly along the west side of Hudson river, at low-water 
 mark, or along the limits of this State, to a point opposite the middle 
 of the westerly end of Eighty-sixth street; thence in a direct line 
 across Hudson river, through the middle of Eighty-sixth street, to the 
 middle of Sixth avenue, and thence southerly along the middle of 
 Sixth avenue to the place of beginning. 
 
 The Twelfth ward boundaries are described in the note to Charter 
 section 1360, subdivision 9. 
 
 The former Tenth Judicial District Court, which comprised the 
 Twenty-third and Twenty-fourth wards, is now the Second district of 
 " The Municipal Court of the City of New York " in the borough of 
 The Bronx.
 
 26 Borough ov Brooklyn. Char., § 1361. 
 
 11. The eleventh district embraces that portion of 
 the twelfth ward which lies north of the center line 
 of West One Hundred and Tenth street and west of 
 the center line of Lenox or Sixth avenue and of the 
 Harlem river north of the terminus of Lenox or Sixth 
 avenue. 
 
 Note to Charter section 1360, subdivision 11. 
 
 The boundary of the Twelfth ward will be found under Charter sec- 
 tion 1300. subdivision 9. 
 
 Borough of Brooklyn. 
 
 CHARTER, § 1361. In the borough of Brooklyn 
 there shall be five districts, as follows : 
 
 1. The first district embraces the first, second, 
 third, fourth, fifth, sixth, tenth and twelfth wards. 
 
 Notes to Charter section 1361, subdivision 1. 
 
 These wards are bounded and described as follows: 
 
 The First Ward of the city shall comprise the following district, 
 namely: Beginning at a point on Fulton avenue where the center lines 
 of Fulton street and Boerum pla;e intersect each other, and running 
 thence northwesterly along the center of Fulton street, and a line in 
 continuation thereof to the East river ; thence southwesterly along the 
 East river to a point opposite the center of Atlantic avenue, or a line 
 in continuation thereof; thence easterly along the center of Atlantic 
 street to the center of Boerum place; and thence northerly along the 
 center of Boerum place to the place of beginning. Laws 1S88, chap. 
 583, § 2. 
 
 The Second Ward of said city shall comprise the following district, 
 namely: Beginning at a point on the East river at the center line of 
 Fulton street continued, and running thence southeasterly along the 
 center line of Fulton street to a point opposite the center of Sands 
 street; thence easterly along the center of Sands street to the center of 
 Bridge street; thence northerly along the center of Bridge street and a 
 line in continuation thereof to the East river ; and thence westerly 
 along the East river to the place of beginning. Laws 1888, chap. 583, 
 § 3. 
 
 The Third Ward of said city shall comprise the following district, 
 namely: Beginning at a point formed by the intersection of the center
 
 Char., § 1361. Borough of Brooklyn. 27 
 
 of Boerum and Fulton streets; thence easterly along the center of Ful- 
 ton street to the intersection of Fulton avenue and Flatbush avenue ; 
 thence southerly along the center of Flatbush avenue to the center of 
 Fourth avenue ; thence southwesterly along the center of Fourth avenue 
 to the center of Bergen street ; thence northwesterly along the center 
 of Bergen street to the center of Court street; thence northerly along 
 the center of Court street to the center of Atlantic street: thence along 
 the center of Atlantic street to the center of Boerum plaee. and thence 
 northeasterly along the center of Boerum place to the place of begin- 
 ning. Laws 1888, ehap. 5S3, § 4. 
 
 The Fouuth Wakd of said city shall comprise the following district, 
 namely: Beginning at a point where the center lines of Sands street 
 and Fulton street intersect each other, and running thence easterly 
 along the center of Sands street to the center of Bridge street: thence 
 southerly along the center of Bridge street to the center of Fulton 
 street; and thence northwesterly along the center of Fulton avenue and 
 Fulton street to the place of beginning. Laws 1888, chap. 583, § 5. 
 
 The Fifth Ward of said city shall comprise the following district, 
 namely: Beginning at a point where the center lines of Bridge street 
 and Johnson street intersect each other, and running thence easterly 
 along the center of Johnson street to the center of Navy street ; thence 
 northerly along the center of Navy street to the northerly side of 
 Nassau street ; thence easterly along the northerly side of Nassau 
 street to the southwesterly corner of the United States navy yard: 
 thence northerly, northwesterly and northeasterly along the United 
 States navy yard to the East river: thence westerly along the East river 
 to a point on the continuation of the center line of Bridge street: 
 thence southerly along the center of Bridge street to the place of be- 
 ginning. Laws 1888, chap. 583. § 6. 
 
 The Sixth \\ ard of said city shall comprise the following district, 
 namely: Beginning on the East river, at the center of Atlantic street, 
 thence easterly along the center of Atlantic street to the center of Court 
 street : thence southerly along the center of Court street to the center 
 of Fourth place: thence westerly along the center of Fourth place to 
 the center of Henry street : thence southeasterly along the center of 
 Henry street to the center of Coles street ; thence westerly along the 
 center of Coles street to the center of Hamilton avenue; thence along 
 the center of Hamilton avenue to the East river ; thence along the East 
 river to the place of beginning. Laws 1888, ehap. 583, § 7. 
 
 The Tenth Ward of said city shall comprise the following district, 
 namely: Beginning at a point formed by the intersection of the center 
 of Fourth avenue and Bergen street; thence running southwesterly 
 along the center of Fourth avenue to the center of First street ; thence 
 northwesterly along the center of First street to the center of Gowanus 
 canal ; thence southerly and westerly along the center line of Gowanus
 
 28 Borough of Brooklyn. Char., § 1361. 
 
 canal to a point where a Line drawn in continuation of the center line of 
 Fifth street would intersect the center line <>i Gowanus canal; thence 
 northwesterly along said line drawn in continuation of the center line 
 of Fifth street to the center line of Fifth street; thence northwesterly 
 along the center of Fifth street and Fourth place to the center of Court 
 street; thence along the center of Court street to the center of Bergen 
 street, and thence southeasterly along the center of Bergen street to 
 the place of beginning. Laws 1888. chap. 583, § 11. 
 
 The Twelfth Ward of said city shall comprise the following dis- 
 trict, namely: Beginning in the East river on the center line of Ham- 
 ilton avenue; thence southerly along the center line of Hamilton ave- 
 nue to the center of Coles street ; thence southeasterly along the center 
 of Coles street to the center of Henry street; thence northerly along 
 the center of Henry street to the center of Fourth place; thence south- 
 easterly along the center of Fourth place to the center of Smith street; 
 thence northerly along the center of Smith street to the center of Fifth 
 street ; thence southeasterly along the center of Fifth street and 
 along a line drawn in continuation of Fifth street to a point where 
 said line would intersect the center of Gowanus canal; thence south- 
 westerly along the center line of Gowanus canal to Gowanus bay; 
 thence along the Gowanus bay and East river to the place of begin- 
 ning. Laws 1888, chap. 583, § 13. 
 
 2. The second district embraces the seventh, ninth, 
 eleventh, twentieth, twenty-first, and twenty-third 
 wards. 
 
 Notes to Charter section 1361, subdivision 2. 
 
 By Laws 1001, chapter 140, the Eighth ward was taken out of this 
 district and added to the Fifth district. 
 
 These wards are bounded and described as follows: 
 The Seventh Ward of said city shall comprise the following dis- 
 trict, namely: Beginning at a point formed by the intersection of the 
 middle lines of Bedford and Flushing avenues, running thence south- 
 erly along the center line of Bedford avenue to its intersection with 
 the middle line of Brevoort place, and thence westerly along the middle 
 line of Brevoort place to the middle line of Franklin avenue; thence 
 southerly along the middle line of Franklin avenue to the middle line 
 of Atlantic avenue; thence westerly along the middle line of Atlantic 
 avenue to the middle line of Washington avenue ; thence northerly along 
 the middle line of Washington avenue to the middle line of Flushing 
 avenue; thence easterly along the middle line of Flushing avenue to the 
 point or place of beginning. Laws 1888, chap. 583, § 8.
 
 Char., § 1361. Borough or Brooklyn. 29 
 
 The NINTH Ward of the city of Brooklyn shall comprise the follow- 
 ing district, namely : Beginning at a point where the center lines of 
 Flatbush and Fourth avenues intersect, running thence southeasterly 
 along the center line of Flatbush avenue to the center line of Atlantic 
 avenue : thence southeasterly along the center line of Atlantic avenue 
 to the center line of Franklin avenue: thence southwesterly along the 
 center line of Franklin avenue to the line separating the city of 
 Brooklyn from the town of Flatbush ; thence in a westerly direction 
 along said line as the same now runs to the center line of Flatbush 
 avenue; thence northwesterly along the center line of Flatbush avenue 
 to the southern boundary of the Plaza ; thence westerly along the 
 southern boundary of the Plaza to the center line of Ninth avenue ; 
 thence northerly along a line in continuation of the center line of 
 Ninth avenue to a point where said line would intersect a line drawn 
 in continuation of the center line of Union street; thence northwesterly 
 along said line and along the center line of Union street to the center 
 line of Fourth avenue, and thence northeasterly along the center line 
 of Fourth avenue to the point or place of beginning. Ordinances of 
 City of Brooklyn, 1892, vol. 2, p. 894. 
 
 The Eleventh Ward of said city shall comprise the following dis- 
 trict, namely: Beginning at a point where the center lines of Fulton 
 street and Bridge street intersect each other ; thence running northerly 
 along the center of Bridge street to the center of Johnson street : 
 thence easterly along the center of Johnson street to the center of 
 Navy street : thence northerly along the center of Navy street to the 
 center of Nassau street: thence easterly along Nassau street to the 
 southwesterly corner of the United States navy yard; thence northerly 
 along the same to the East river : thence easterly along the East 
 river and Wallabout bay to the center line of Portland avenue, or a 
 line in continuation thereof: thence southerly along the center of 
 Portland avenue in a straight line, across Washington park to the 
 center of Atlantic avenue: thence westerly along the center line of 
 Atlantic avenue to a point where the center line of Atlantic street and 
 Flatbush avenue intersect each other ; thence northwesterly along the 
 center of Flatbush avenue to the center of Fulton street, and thence 
 westerly along the center of Fulton street to the point or place of 
 beginning. Laws 1888. chap. 583, § 12. 
 
 The Twentieth Ward of said city shall comprise the following dis- 
 trict, namely: Beginning at a point formed by the intersection of the 
 center line of Washington avenue with the center of Atlantic avenue: 
 running thence westerly along the center line of Atlantic avenue to the 
 center line of Portland avenue; thence northerly along the center line of 
 Portland avenue in a straight line across Washington park to the 
 East river or Wallabout bay: thence easterly along the East river or 
 Wallabout bay to the center of Washington avenue, and thence south-
 
 30 Borough of Brooklyn. Gear., § 1361. 
 
 erly along the center of Washington avenue to the center of Atlantic 
 avenue to the point or place of beginning. Laws 1888, phap. .383, § 12. 
 The Twenty-First Ward of the city of Brooklyn shall comprise the 
 following district, namely: Beginning at a point formed by the inter- 
 section of the middle lines of Bedford and Lafayette avenues; thence 
 northerly along the middle line of Bedford avenue to its intersection 
 with the middle line of Flushing avenue; thence easterly along the 
 middle line of Flushing avenue to its intersection with the middle line 
 of Broadway; thence southeasterly along the middle line of Broad- 
 way to its intersection with the middle line of Lafayette avenue; 
 thence westerly along the middle line of Lafayette avenue to the place 
 or point of beginning. Laws 1888, chap. .">s:;. § 22. 
 
 The Twenty-third Ward of the city of Brooklyn shall comprise the 
 following district, namely: Commencing at the intersection of Bed- 
 ford and Lafayette avenues: running thence easterly along the center 
 line of Lafayette avenue to the center line of Reid avenue: thence 
 southerly along the center line of Reid avenue to the center line of 
 Fulton street ; thence westerly along the center line of Fulton street to 
 the center of I tica avenue: thence southerly along the center of L'tica 
 avenue to the center of Atlantic avenue : thence westerly along the 
 center of Atlantic avenue to the center of Franklin avenue: thence 
 northerly along the center of Franklin avenue to the center of Brevoort 
 place; thence easterly along the center of Brevoort place to the center 
 of Bedford avenue ; thence northerly along the center of Bradford ave- 
 nue to the place of beginning. Ordinances of City of Brooklyn, 1892, 
 vol. 2, p. 898. 
 
 3. The third district embraces the thirteenth, four- 
 teenth, fifteenth, sixteenth, seventeenth, eighteenth 
 and nineteenth wards. 
 
 Notes to Charter section 1361, subdivision 3. 
 
 These wards are hounded and described as follows: 
 The Thirteenth Ward of the city of Brooklyn shall comprise the 
 following district, namely: Beginning at the permanent water line on 
 the easterly side of the Fast river where the same would be intersected 
 by the center line of Division avenue: thence in an easterly direction 
 along the said center line of Divisicn avenue to the center line of Rod- 
 ney street; thence in a northeasterly direction along the center line of 
 Rodney street to the center line of (hand street: thence in a north- 
 westerly direction alone the center line of (hand street to the per- 
 manent line of the East river: thence southwesterly along the per- 
 manent line of the Last river to the center line of Division avenue,
 
 Char., § 1361. Borough of Brooklyn. 31 
 
 the place of beginning. Ordinances of City of Brooklyn, 1892, vol. 2, 
 p. 895.) 
 
 The Fourteenth Ward of said city shall comprise the following 
 district, namely: Beginning at the easterly permanent line on the 
 East river, where the same would be intersected by a line drawn through 
 the center of Grand street ; thence running in a southeasterly direction 
 along the center of Grand street to the center of the intersection of 
 Grand and Rodney streets ; thence in a northeasterly direction along 
 the center of Rodney street to the center of the intersection of North 
 Second and Rodney streets ; thence in an easterly direction along the 
 center of North Second street to the center of the intersection of North 
 Second street and Union avenue; thence in a northerly direction along 
 the center of Union avenue to the center of the intersection of Union 
 avenue by Driggs street; thence in a northeasterly direction along the 
 center of Driggs street to the center of the intersection of North Four- 
 teenth street by fifth street; thence in a northwesterly direction along 
 the center of North Fourteenth street to the center of the intersection 
 oi Nortn Fourteenth and Kent avenue; thence in a southwesterly direc- 
 tion along the center of First and North Thirteenth streets; thence in 
 a northwesterly direction along the center of North Thirteenth street 
 to the easterly permanent line of East river; thence in southwesterly 
 direction along the easterly permanent line of East river to the center 
 of Grand street, the place of beginning. Laws 1888. chap. .".s:i, § 15. 
 
 The Fifteenth Ward of said city shall comprise the following dis- 
 trict, namely: Beginning at the center of tlie intersection of South 
 Second and Rodney streets; thence running in a southeasterly direction 
 along the center of South Second street to the center of the intersection 
 of South Second street by Union avenue ; thence in a northerly direc- 
 tion along the center of Union avenue to the center of the intersection 
 of Ten Eyck street by Union avenue; thence in an easterly direction 
 along the center of Ten Eyck street to the center of the intersection 
 of Wyckoff street and Bushwick avenue; thence in a northwesterly 
 direction along the center of Bushwick avenue to the center of the in- 
 tersection of Bushwick avenue and North Second street ; thence in a 
 westerly direction along the center of North Second street to the center 
 of the intersection of North Second street and Humboldt street; thence 
 in a northerly direction along the center of Humboldt street ; thence in 
 a northerly direction along the center of Smith street to the center of 
 the intersection of Humboldt street and Richardson street ; thence in a 
 westerly direction along the center of Richardson street to the center 
 of the intersection of Richardson and Leonard streets; thence in a 
 northerly direction along the center of Leonard street to the center of 
 the intersection of Leonard and Van Pelt streets; thence in a westerly 
 direction along the center of Van Pelt street to the center of the inter-
 
 32 Bobough of Brooklyn. CHAR., § 1361. 
 
 section of Van Pelt street by Driggs street ; thence in a southwesterly 
 direction along the center of Driggs street to the center of the inter- 
 section of Union avenue by Driggs street; thence in a southerly direc- 
 tion along the center of Union avenue to the center of the intersection 
 of Union avenue and North Second street : thence in a westerly direc- 
 tion along the center >f North Second street to the center of the inter- 
 section of Rodney street by North Second street; thence in a south- 
 westerly direction along the center of Rodney street to the intersection 
 of Rodney and South Second streets, the place of beginning. Laws 
 1888, chap. 583, § 16. 
 
 The Sixteenth Ward of the said city shall comprise the following 
 district, namely: Beginning at the intersection of the center lines of 
 Rodney street on. Broadway: running thence southeasterly along the 
 center line of Broadway to the center line of Flushing avenue; thence 
 in an easterly direction along the center line of Flushing avenue to the 
 center line of Bushwick avenue or road as the same was originally laid 
 down on the commissioner's map of the town of Bushwick; thence in a 
 northerly, northwesterly and northeasterly direction along the center 
 line of Bushwick avenue or road as the same was so laid down to the 
 center line of Ten Eyck street; thence westerly along the center line of 
 Ten Eyck street to the center line of Union avenue; thence in a south- 
 erly direction along the center line of Union avenue to the center line 
 of South Second street; thence in a northwesterly direction along the 
 center line of South Second street to the center line of Rodney street; 
 thence in a southwesterly direction along the center line of Rodney 
 street to the center line of Broadway, the place of beginning. Ordi- 
 nances of City of Brooklyn, 1892, vol. 2, p. 895. 
 
 The Seventeenth Ward of said city shall comprise the folloAving 
 district, namely: Beginning at the easterly permanent line of the East 
 river, where the same would be intersected by a line drawn through the 
 center of North Thirteenth street ; thence running in a southeasterly 
 direction along the center of North Thirteenth street to the center or 
 the intersection of North Thirteenth and Kent avenue; thence north- 
 easterly along the center of Kent avenue to the center of the intersec- 
 tion of North Fourteenth and First streets; thence in a southeasterly 
 direction along the center of North Fourteenth street to the center of 
 the interse* tion of North Fourteenth street by Van Cott avenue; thence 
 along the center of Van Cott avenue in a northeasterly direction to the 
 center of the intersection of Van Pelt street by Van Cott avenue; 
 thence in an easterly direction along the center of Van Pelt street to the 
 center of the intersection of Van Pelt and Leonard streets: thence in a 
 southerly direction along the center of Leonard street to the center of 
 the intersection of Leonard and Richardson streets: thence in an east- 
 erly direction along the center of Richardson street to the center of the
 
 Char., § 1361. Borough of Brooklyn. 33 
 
 intersection of Meeker avenue by Richardson street; thence in a north- 
 easterly direction along the center of Meeker avenue, in all its turnings, 
 to the center of Newtown creek; thence in a northwesterly direction 
 along the center of Newtown creek in all its meanderings, to the per- 
 manent line of the East river to a point where the permanent line of 
 the East river would intersect the center of Newtown creek if con- 
 tinued ; thence along the easterly permanent line of the East river in a 
 southerly direction to the center of North Thirteenth street to the place 
 of beginning. Laws 1888, chap. 583, § 18. 
 
 The Eighteenth Ward of said city shall comprise the following dis- 
 trict, namely: Beginning at the center of the intersection of Richard- 
 son street and Meeker avenue; thence running in a northeasterly direc- 
 tion along the center of Meeker avenue to the center of Newtown creek; 
 thence in a southeasterly direction along the center of Newtown creek 
 to the line of the county of Queens; thence southeasterly along the line 
 of the county of Queens to the center of Flushing avenue at its inter- 
 section with the said line of the county of Queens; thence southwest- 
 erly and westerly along the center of Flushing avenue until it inter- 
 sects the center of Bushwick avenue or road as the same was originally 
 laid down on the commissioner's map of the town of Bushwick ; thence 
 along the center of said Bushwick avenue or road as the same was so 
 laid down to the center of Ten Eyck street; thence along the center 
 line of Bushwick as the same now exists to the center of the intersection 
 of Bushwick avenue and North Second street; thence westerly along 
 the center of North Second street to the center of the intersection of 
 North Second and Humboldt streets; thence northerly along the center 
 of Humboldt street to the center of the intersection of Humboldt and 
 Richardson streets ; thence along the center of Richardson street to 
 the point or place of beginning. Ordinances of City of Brooklyn, 1892, 
 vol. 2, p. 896. 
 
 The Nineteenth Ward of the city of Brooklyn shall comprise the 
 following district, namely: Beginning at a point formed by the inter- 
 section of the center line of Broadway with the center line of Flushing 
 avenue, running thence westerly along the center line of Flushing ave- 
 nue to the center line of Washington avenue; thence northerly along 
 the center line of Washington avenue to the Wallabout canal ; thence 
 northwesterly along said canal to Wallabout bay; thence northwesterly 
 along said Wallabout bay to the center line of Division avenue ; thence 
 easterly along the center line of Division avenue to the center line of 
 Rodney street; thence northeasterly along the center line of Rodney 
 street to the center line of Broadway; thence southeasterly along the 
 center line of Broadway to Flushing avenue, at the point or place of 
 beginning. Ordinances of City of Brooklyn, 1892, vol. 2, p. 896. 
 
 3
 
 34 Borough or Brooklyn. Char., § 1361. 
 
 4. The fourth district embraces the twenty-fourth, 
 twenty-fifth, twenty -sixth, twenty-seventh and twenty- 
 eighth wards. 
 
 Notes to Charter section 1361, subdivision 4. 
 
 These wards are bounded and described as follows: 
 
 The Twenty-fourth Ward of the city of Brooklyn shall comprise 
 the following district, namely: Beginning at a point formed by the 
 intersection of Franklin and Atlantic avenues, running thence in a 
 southerly direction along the middle line of Franklin avenue to the city 
 line; thence ir an easterly direction along the city line to the middle 
 line of Atlantic avenue, and thence in a westerly direction along the 
 middle line of Atlantic avenue to the point or place of beginning. 
 Laws 1888, chap. 583, § 25. 
 
 The Twenty-fifth Ward of the city of Brooklyn shall comprise the 
 following district, namely: Commencing at the center line of Reid and 
 Lafayette avenues ; thence southerly along the center of Reid avenue 
 to the center of Fulton street; thence westerly along the center of 
 Fulton street to the center of Utica avenue ; thence southerly along the 
 center of Utica avenue to the center of Atlantic avenue ; thence easterly 
 along the center of Atlantic avenue to the former boundary line between 
 the city of Brooklyn and the town of New Lots; thence northerly along 
 said boundary line to the center line of Broadway; thence along the 
 center of Broadway to the center of Lafayette avenue; thence westerly 
 along the center of Lafayette avenue to the place of beginning. Ordi- 
 nances of City of Brooklyn, 1892, vol. 2, p. 898. 
 
 The Twenty-sixth Ward of the city of Brooklyn shall comprise the 
 following district, to wit: All that portion of the county of Kings, 
 formerly known as the town of New Lots. Laws 1888, chap. 583, § 27. 
 
 The Twenty-seventh Ward of said city shall comprise the following 
 district, namely: Beginning at the center of the intersection of Broad- 
 way and Kosciusko street; thence running in a northeasterly direction 
 along the center of Kosciusko street to the intersection of Bushwick 
 avenue and Kosciusko street ; thence running in a northwesterly direc- 
 tion along Bushwick avenue to the intersection of Bushwick avenue 
 and Stockholm street; thence in a northeasterly direction along the 
 center of Stockholm street to the intersection of the line of the county 
 of Queens; thence northerly or nearly so along the line of the county of 
 Queens to the center of Flushing avenue at its intersection with the 
 said line of the county of Queens; thence southwesterly and westerly 
 along the center of Flushing avenue to the center of the intersection of 
 Broadway; thence southwesterly along the center of Broadway to 
 the point or place of beginning. Laws 1892, chap. 57.
 
 Char., § 1361. Borough of Brooklyn. 35 
 
 The Twenty-eighth Ward of the said city shall comprise the fol- 
 lowing district, namely: Beginning at the center of the intersection of 
 Broadway and Kosciusko street ; thence running in a northeasterly di- 
 rection along the center of Kosciusko street to the intersection of Bush- 
 wick avenue and Kosciusko street ; thence running in a northwesterly 
 direction along the center of Bushwick avenue to the intersection uf 
 Bushwick avenue and Stockholm street ; thence in a northeasterly di- 
 rection along the center of Stockholm street to the intersection of the 
 line of the county of Queens; thence in a southerly direction along the 
 line of the county of Queens to the westerly line of the Twenty-sixth 
 ward, formerly the town of New Lots ; thence southwesterly along the 
 said line to the intersection of the center of Broadway; thence north- 
 westerly along the center of Broadway to the place of beginning. Laws 
 1892, chap. 57. 
 
 5. The fifth district embraces the eighth, twenty- 
 second, twenty-ninth, thirtieth, thirty-first and thirty, 
 second wards. 
 
 Notes to Charter section 1361, subdivision 5. 
 
 By Laws of 1901, chapter 140, the Eighth ward was taken out of 
 the Second district and added to this district. 
 
 These wards are bounded and described as follows: 
 
 The Eighth Ward of the city of Brooklyn shall comprise the follow- 
 ing district, namely: Beginning at a point where the center line of 
 Prospect avenue intersects Gowanus bay and running thence south- 
 easterly along the center line of Prospect avenue to the center line of 
 Sixth avenue ; thence southwesterly along the center line of Sixth ave- 
 nue to the center line of Twenty-third street; thence southeasterly 
 along the center line of Twenty-third street to the center line of Seventh 
 avenue; thence northeasterly along the center line of Seventh avenue 
 to the southerly side of Twentieth street ; thence southeasterly along the 
 southerly side of Twentieth street to a point distant one hundred feet 
 northwesterly from the corner formed by the intersection of the south- 
 erly side of Twentieth street with the westerly side of Ninth avenue; 
 thence southwesterly on a line parallel with and distant one hundred 
 feet from the westerly side of Ninth avenue to the northerly line of 
 Twenty-first street; thence southeasterly along the northerly line of 
 Twenty-first street to the westerly line of Ninth avenue, and thence 
 northeasterly along the westerly line of Ninth avenue to southerly side 
 of Twentieth street, and thence southeasterly along the southerly side 
 of Twentieth street to the westerly line of Tenth avenue; thence south-
 
 36 Borough of Brooklyn. Char., § 1361. 
 
 westerly along the westerly line of Tenth avenue, to the southerly side 
 of Twenty-second streei as laid down on the commissioner's map of 
 the city of Brooklyn; thence southeasterly along the southerly side of 
 Twenty-second streei as bo laid down to the line separating the town of 
 Flatbush from the city of Brooklyn; thence southwesterly along the 
 said division line to the line of the town of New Utrecht; thence along 
 the line separating the city of Brooklyn from the town of New Utrecht 
 as the same now runs to the bay of New York : thence northeasterly 
 along the said bay and along Gowanus bay to the place of beginning. 
 Ordinances of City of Brooklyn, 1892, vol. 2, p. 894." 
 
 The Twenty-second Ward of the city of Brooklyn shall comprise the 
 following district, namely: Beginning at a point where the southerly 
 boundary of the Plaza intersects the center line of Flatbush avenue ; 
 running thence southeasterly along the center line of Flatbush avenue 
 to the line separating the town of Flatbush from the city of Brooklyn: 
 thence along said division line as it now runs to the southerly side of 
 Twenty-second street as laid down on the commissioner's map of the 
 city of Brooklyn : thence westerly along said southerly side of Twenty- 
 second street as so laid down to the westerly side of Tenth avenue : 
 thence northeasterly along the westerly side of Tenth avenue to the 
 southerly side of Twentieth street; thence northwesterly along the 
 southerly side of Twentieth street to the westerly side of Ninth avenue ; 
 thence southwesterly along said westerly side of Ninth avenue to the 
 northerly line of Twenty- first street; thence northwesterly along the 
 northerly side of Twenty-first street one hundred feet : thence north- 
 easterly on a line parallel with and distant one hundred feet from 
 the westerly line of Ninth avenue to the southerly side of Twentieth 
 street; thence northwesterly along the southerly side of Twentieth 
 street to the center line of Seventh avenue ; thence southwesterly along 
 the center line of Seventh avenue to the center line of Twenty-third 
 street ; thence northwesterly along the center line of Twenty-third street 
 to the center line of Sixth avenue; thence northeasterly along the center 
 line of Sixth avenue to the center line of Prospect avenue; thence north- 
 westerly along the center line of Prospect avenue to the center line 
 of the Gowanus' bay or canal ; thence northeasterly along said center 
 line of said bay or canal as the same now runs to the center line of 
 First street as originally laid out on the commissioner's map of the city 
 of Brooklyn; thence southeasterly along the center line of First street 
 as so laid out to the center line of Fourth avenue; thence northeasterly 
 along the center line of Fourth avenue to the center line of Union street ; 
 thence southeasterly along the center line of Union street and a line 
 drawn in continuation thereof to a point where said line in continuation 
 of the center line of Union street intersects a line drawn in continuation 
 of the center line of Ninth avenue; thence along the line drawn in con-
 
 Char., £ 13G2. Bououuir of Queens. 37 
 
 tinuation of the center line of Ninth avenue to the southerly boundary 
 of the Plaza; thence easterly along the southerly boundary of the Plaza 
 to the place of beginning, including the southerly and westerly bound- 
 aries of Prospect park as established by law. Ordinances of City of 
 Brooklyn, 1892, vol 2, p. 897. 
 
 The Twenty-ninth Ward of said city comprises all that territory 
 within the limits of the town of Flatbush in the county of Kings as the 
 same was constituted on the twenty-fifth day of April, one thousand 
 eight hundred and ninety-four. Laws 1894, chap. 356. 
 
 The Thirtieth Ward of said city comprises all that territory within 
 the limits of the town of New Utrecht in the county of Kings as the 
 same was constituted on the third day of May, one thousand eight hun- 
 dred and ninety-four. Laws 1S94, chap. 451. 
 
 The Thirty-first Ward of said city comprises all that territory 
 within the limits of the town of Gravesend in the county of Kings as 
 the same was constituted on the third day of May, one thousand eight 
 hundred and ninety-four. Laws 1894, chap. 449. 
 
 The Thirty-secoxd Ward of said city comprises all that territory 
 within the limits of the town of Flatlands in the county of Kings as the 
 same was constituted on the vhird day of May, one thousand eight hun- 
 dred and ninety-four. Laws 1894, chap. 450. 
 
 Wards in the borough of Brooklyn; how designated. — The wards of 
 the former city of Brooklyn are hereby continued, with their present 
 boundaries and numbers, and shall be known and designated as wards 
 of the borough of Brooklyn. Laws 1901, chap. 466, § 1577. 
 
 Borough of Queens. 
 
 CHARTER, § 1362. In the borough of Queens 
 there shall be three districts, as follows : 
 
 1. The first district embraces ward one of said bor- 
 ough. 
 
 Note to Charter section 1362, subdivision 1. 
 
 Long Island City constitutes this ward. Laws 1901, chap. 466, § 1581. 
 
 2. The second district embraces wards two and 
 three of said borough. 
 
 Note to Charter section 1362, subdivision 2. 
 
 The town of Newtown is ward two, and the town of Flushing is ward 
 three. Laws 1901, chap. 466, § 1581.
 
 38 Bokough <n Richmond. Char., f 1363. 
 
 3. The third district embraces wards four and five 
 of said borough. 
 
 Note to Charter section 1303, subdivision 3. 
 
 The town of Jamaica is ward four, and that part of the town of 
 Hempstead included within the city of New York, as constituted by 
 this act, shall be known as ward five of the said borough of Queens. 
 Laws 1901, chap. 466, § 1581. 
 
 Borough of Richmond. 
 
 CHARTER, § 1363. In the borough of Richmond 
 there shall be two districts, as follows : 
 
 1. The first district embraces wards one and three 
 of said borough. 
 
 Note to Charter section 1363, subdivision 1. 
 
 The towns of Castleton* and Northfield comprise this district. The 
 town of Castleton being ward one, and the town of Northfield being 
 ward three. Laws 1901, chap. 466, § 1580. 
 
 2. The second district embraces wards two, four and 
 five of said borough. 
 
 Note to Charter section 1363, subdivision 1. 
 
 The towns of Middletown, Southfield and Westfield comprise this 
 district. The town of Middletown, being ward two, the town of South- 
 field being ward four, and the town of Westfield being ward five. 
 Laws 1901, chap. 466, § 1580.
 
 THE 
 
 MUNICIPAL COURT ACT OF THE CITY OF 
 NEW YORK. 
 
 By Laws 1901, chap. 218, " An Act to provide for a com- 
 mission to revise, amend, reform, simplify, abridge, and 
 codify the laws, rnles, practice, pleadings, forms, and pro- 
 ceedings of the municipal court of the city of New York, 
 and the laws, rules, et cetera, relating to the clerks, officers, 
 and attendants thereof, and the marshals attached thereto," 
 the board of justices appointed seven of their number a 
 commission to revise, amend and codify the laws relating 
 to this court, with their reasons therefor, and transmit the 
 s.ame to the legislature; this resulted in the passage of the 
 following act, which, by section 365 thereof, is to be cited 
 as " The Municipal Court Act of the City of New York." 
 
 Laws 1902, Chap. 580. 
 
 AN ACT in relation to the municipal court of the city of 
 New York, its officers and marshals. 
 
 Passed with the acceptance of the city. Became a law April 14, 1902, 
 with the approval of the Governor. In effect September 1, 1902. 
 
 The People of the State of New York, represented in 
 Senate and Assembly, do enact as follows: 
 
 Title I. Jurisdiction and general powers. (§§ 1-20.) 
 II. Actions; summons; parties. (§§ 25-53.) 
 III. Provisional remedies. Action to foreclose a lien on a chattel. 
 (§§ 55-142.) 
 Article I. Order of arrest. (§§ 55-70.) 
 II. Attachment. (§§ 73-92.) 
 III. Replevin. (§§ 95-131.) 
 
 IV. Action to foreclose a lien on a chattel. 
 (§§ 137-142.) 
 [39]
 
 40 Jurisdiction and General Powers. § 1. 
 
 Title IV. Pleadings. (§§ 145-147.) 
 
 V. Proceedings between joinder of issue and trial. (§§ 193-226.) 
 Article I. Adjournments. Subpoenas. Attendance of 
 witnesses. (§§ 193-200.) 
 II. Commissions and depositions. (§§ 205-226.) 
 VI. Trial; trial jurors. (§§ 230-243.) 
 VII. Judgment ;• id execution. (§§ 248-277.) 
 Article I. Judgments. (§§ 248-256.) 
 II. Execution. (§§ 260-277.) 
 VIII. Clerks and officers. (§§ 282-30G.) 
 
 Article I. Clerks and officers. (§§ 282-289.) 
 II. Marshals. (§§ 293-306.) 
 IX. Appeals. (§§ 310-327.) 
 
 X. Costs and fees. (§§ 330-356.) 
 XI. Definitions; effect of act; laws repealed. (§§ 360-366.) 
 
 TITLE I. 
 
 Jurisdiction and General Powers. 
 
 Section 1. Jurisdiction. 
 
 2. No jurisdiction in certain cases. 
 
 3. Removal. 
 
 4. Contempt of court; criminal. 
 
 5. Punishment. 
 
 6. In view of court. 
 
 7. Pieceding three sections limited. 
 
 8. Contempts punishable civilly. 
 
 9. Process ; where service may be made. 
 
 10. Justice to administer oaths. 
 
 11. Eoard of justices. 
 
 12. Board to make rules. 
 
 13. Court; by whom held. 
 
 14. Concurrence of majority. 
 
 15. Actions may be continued before another justice. 
 
 16. Death or removal of justice not to impair proceedings, 
 
 et cetera. 
 
 17. Court; where held. 
 
 18. Seals. 
 
 19. Access to court-houses. 
 
 20. Code; rules of supreme court applicable; when. 
 
 Section 1. Jurisdiction. — Except as provided in the 
 next section the municipal court of the city of New York
 
 § 1. Jurisdiction and General Powers. 41 
 
 has jurisdiction in the following civil actions and proceed- 
 ings: 
 
 Notes to section i, " Jurisdiction." 
 
 Under title I of this act, " Jurisdiction and General Powers," the 
 jurisdiction and general powers of the court are specified. As will be 
 observed by the preamble of section 1 the court, and not the judge, 
 now exercises such powers as are described in subdivisions 15 and 19 
 of section 1. See also note to § 1352 of the Charter. 
 
 This section and its nineteen subdivisions are constructed from the 
 Consolidation Act of 1882 (chap. 410), § 1285, and The Greater New 
 York Charter (Laws 1901, chap. 46G), § 13G4. 
 
 Amendment of a pleading. — This court may grant an amendment 
 of a pleading involving a new cause of action or defense. Haivkes v. 
 Burke, 34 Misc. Rep. 189. 
 
 Appearance by attorney. — Jurisdiction is obtained by a general ap- 
 pearance on behalf of defendant by an attorney, although he was re- 
 tained to appear only specially to have service of summons set aside, 
 if he had authority to appear at all. Kramer v. Gerlach, 28 Misc. Rep. 
 525, 59 N. Y. Supp. 855. 
 
 Consent. — Jurisdiction cannot be acquired by consent of the parties 
 where, by law, it is not conferred upon the court, it being a well-es- 
 tablished principle that consent cannot confer jurisdiction. In any case 
 however, where the court has jurisdiction of the subject-matter it may 
 acquire jurisdiction of the parties by their consent. Cowen's Treatise, 
 §§ 19, 20. 
 
 While consent may waive error, it cannot confer jurisdiction. Da- 
 kin v. Demming, 6 Paige, 95: Dudley v. Mayhew, 3 N. Y. 9; Coffin v. 
 Tracy, 3 Cai. 29; Germond v. The People, 1 Hill, 343; Meyer v. Burger, 
 2 Hoff. Ch. 1 ; McNahan v. Rauhr, 47 N. Y. 67. 
 
 Definition. — Jurisdiction is the power residing in the court to deter- 
 mine practically a given action, controversy, or question presented to 
 it for decision. If this power does not exist with reference to any 
 particular case, its determination by the court is an absolute nullity; 
 if it does exist, the determination, however erroneous in fact, or 
 in law, is oinding upon the parties until reversed or set aside in some 
 proceeding authorized by the practice brought for that express pur- 
 pose. Pomeroy on Equity Jurisprudence, vol. 1, § 129, p. 111. 
 
 Jurisdiction of the subject-matter is power to adjudge concerning 
 the general question involved, and is not dependent upon a particular 
 state of facts which may appear in a particular case, arising, or which 
 is claimed to have arisen, under that general question, or the ultimate 
 existence of a good cause of action in the plaintiff therein. Hunt v. 
 Hunt, 72 N. Y. 217, 228, 230.
 
 42 Jurisdiction am» General Powers. S 1, Subd. 1. 
 
 It is the power to act upon the general or abstract question, and 
 to determine and adjudge whether the particular facts presented call 
 for the exercise of the abstract power. Hughes v. Cuming, 165 N.'Y. 91. 
 
 Enjoining action. — An action will not be enjoined on the ground that 
 the defendant has a counterclaim upon a prior indebtedness exceeding 
 the jurisdiction of the court, where he knew, at the time of making 
 the contract sued Uj»on, that it could be enforced in such a court and 
 that his counterclaim could not be introduced therein, and made no 
 provision in the contract for its payment. Michael v. Kronthal, 13 
 Misc. Rep. 428. 
 
 Estoppel. — Defendants answering upon the merits, and giving the 
 bond required by section 1306 of the city charter are estopped from 
 asserting that the court has not jurisdiction of their persons. Yogcl v. 
 Banks, 60 App. Div. 459, <0 X. Y. Supp. 1010. 
 
 How acquired. — In the case of Sangendorf v. Schultz % 41 Barb. 102, 
 the general nature of the jurisdiction and the distinction between the 
 various modes in which it is obtained was considered. It was held 
 that the jurisdiction upon the commencement of an action by sum- 
 mons did not attach by mere service of the summons, so as to render 
 a judgment given before the hour of return valid. Jurisdiction is 
 obtained by the return of the summons and the arrival of the hour 
 at which the court is authorized to give judgment. 
 
 Power of the court limited. — This court being a court of limited 
 jurisdiction can exercise only such power as is conferred by statute, 
 and the proceedings must conform strictly thereto. Loeb v. Smith, 
 24 Misc. Rep. 200, 52 N. Y. Supp. 677; Reubenstein v. Silberfeld, 24 
 Misc. Rep. 201, 52 N, Y. Supp. 703. 
 
 This court is confined strictly to the authority given it. It takes 
 nothing by implication, but must in every instance show that the power 
 has been expressly granted. Loomis v. Bowers, 22 How. Pr. 361; Ahem 
 v. Nat. Steamship Co., 11 Abb. N. S. 362. 
 
 Submission of a controversy upon facts submitted.— See §§ 241, 
 242, 243. 
 
 1. An action to recover damages upon or for breach of 
 contract, express or implied, other than a promise to marry, 
 where the sum claimed does not exceed five hundred dollars. 
 
 Notes to section i, subdivision i. 
 
 This subdivision is identical with subdivision 1 of section 1364 of 
 The Greater Xew York Charter of 1897, as amended by Law r s 1901, 
 chapter 466. 
 
 Account stated; implied assent. — To constitute an account stated 
 an express assent thereto need not be shown, but such assent may be
 
 § 1, Subd. 1. Jurisdiction and General Powers. 4-'J 
 
 implied from the circumstances. H pell-man v. Muehlfeld, 106 N. V. 
 245. 
 
 Attorney; cannot recover for useless work. — If an attorney-at-law 
 does useless work, through inadvertence or inexperience, he cannot 
 recover remuneration therefor, nor can he recover if he commences an 
 action, in which special evidence is required by statute, without having 
 first ascertained the existence of such evidence. Leo v. Leyser, 30 Misc. 
 Rep. 549. 
 
 Liability of bailee. — The delivery for hire, of a team in good condi- 
 tion, and its return in a damaged condition prima facie entitles the 
 bailor to damages against the bailees, though it was agreed that one 
 of the bailees should drive the team. Rutherford v. Krause, 55 App. 
 Div. 210. See also Lyons v. Thomas, 34 Misc. Rep. 175, 68 N. Y. Supp. 
 802; Isler v. Linde, 33 Misc. Rep. 465, 67 N. Y. Supp. 1072. 
 
 Id.; conversion. — If a bailee in innocent possession refused to inform 
 the owner whether he has the chattel, this is an act of conversion. 
 Milligan v. Brooklyn W. & 8. Co., 34 Misc. Rep. 55, 68 N. Y. Supp. 744. 
 
 Id.; negligence. — A bailee on storage of furs redelivered in a condi- 
 tion that reasonably imports lack of proper care, must rebut the pre- 
 sumption of negligence arising therefrom, though on the whole evi- 
 dence the bailor must make out his ease. Mayer v. (Joe, 31 Misc. Rep. 
 733. 
 
 Id.; a restaurant-keeper is not an insurer of the effects of cus- 
 tomers, but is required to use only the ordinary care called for by the 
 circumstances, and cannot be charged for the loss of an overcoat laid 
 aside by a customer, in the absence of proof of an actual bailment, 
 notice to the restaurant-keeper or his servants of the fact that it was 
 laid aside, or proof of the insufficiency of the general supervision for 
 the protection of the propery of customers. Montgomery v. Ladjing, 
 30 Misc. Rep. 92. 
 
 Broker's commissions on sales and loan of real property. — Broker or 
 agent must have written authority of owner. Laws 1901, chap. 128. 
 
 Contract; authority of employee to make. — Plaintiff's agent called 
 upon one of the defendants and had a conversation with him in re- 
 lation to installing a certain detective system in their store, and was 
 referred by him to one of the employees of the firm, with whom he 
 conducted subsequent negotiations and obtained a contract under which 
 the work was performed. Held, that these facts showed sufficient au- 
 thority in such employee to make the contract. Morse v. Thuroer et al., 
 7 Misc. Rep. 707. 
 
 Id.; breach of. — The contract of sale being an entire one, refusal to 
 accept one installment of the merchandise is a breach entitling the 
 seller to rescind and sue for damages on the whole contract. Gauser 
 v. Weber, 35 Misc. Rep. 303, 71 N. Y. Supp. 773. 
 
 Id.; effect of refusal to perform. — Under a contract of conditional 
 sale of a piano in the form of a lease, bill of sale to be given on pay-
 
 44 Jurisdiction and General Powers. § L, Subd. 1". 
 
 ment of the lasl installment, terminable at seller's option on default, 
 the seller may. upon the refusal of the buyer to accept the piano when 
 tendered, recover the installments when they become due. Gray v. 
 Booth. 64 App. Div. 231, 71 X. V. Supp. 1015. 
 
 Id.; excusinj performance is permitted where from the nature of 
 the contract a condition may be implied that a party will be relieved 
 from the consequences of nonperformance in some >li<:l)t particular 
 where the obligation is qualified, or where performance is rendered 
 impos 3ible without his fault. Buffalo, etc., Co. v. Bellevue, etc., Co., 
 165 X. Y. 247. 
 
 Under a contract for advertising, plaintiff cannot recover as for per- 
 formance by showing facts that excuse compliance with the contract. 
 Tribune .l.s-.s/i. v. Eisner, etc., 34 Misc. Kep. 658, 70 X. 1". Supp. 706. 
 
 Id.; performance. — A building contractor may recover as for sub- 
 stantial performance, where the work is deficient only in unimportant 
 details which may be compensated for by deduction from the contract 
 price. Hall v. Long, 34 Misc. Rep. 1, 68 X. Y. Supp. 522: Vogel v. 
 Friedman, 34 Misc. Rep. 775, 68 X. Y. Supp. 820. 
 
 Conversion seems to consist in any tortious act by which the de- 
 fendant deprives the plaintiff of his goods. Spencer v. Blackman, 9 
 Wend. 167; Laverty v. Snethen, (IS X. Y. 522. 
 
 Id.; agent. — An agent is liable for conversion when he parts with 
 his principal's property in ah unauthorized way. Larerty v. Snethen, 
 68 X. Y. 522. 
 
 Id.; authority. — It is in general sufficient to give a right of action 
 to exercise authority over or interfere with the property of another 
 to his damage. Latimer v. Wheeler, 1 Keyes, 468; affd., 30 Barb. 485. 
 
 Id.; bailee who refuses to inform owner whether he has the chattel 
 commits an act of conversion. Milligan v. Brooklyn W. & 8. Co.. .">4 
 Misc. Rep. 55, 58 X. Y. Supp. 744. 
 
 Id.; boarding-house keeper's lien; judgment. — An action to enforce 
 a boarding-house keeper's lien upon property of a boarder which he has 
 clandestinely removed is one for conversion of personal property 
 within the meaning of subdivision 2 of section 2895 of the Code, and 
 the justice is bound to insert in the judgment the liability of the 
 defendant to arrest upon execution. Babcock v. Smith, 47 X. Y. St. 
 Rep. 118. 
 
 Id.; carrier. — A carrier who delivers goods to another is liable for 
 conversion to a consignee who has made advances on them. Bailey v. 
 Hudson River R. R. Co., 49 X. Y. 70. 
 
 Id.; check. — An action for conversion lies in favor of an execution 
 creditor for the destruction of a check wdiile in the hands of a con- 
 stable to whom it has been given in payment of a judgment by the 
 drawer thereof. Pawson v. Miller, 66 App. Div. 12. 
 
 Id.; pledgee. — A refusal by a pledgee to deliver np a pledge on 
 tender of the debt and interest h a conversion of the pledge. Case v.
 
 § 1, Subd. 1. Jurisdiction and General Powers. 45 
 
 Higenbotam, 100 N. Y. 248, revg. 27 Hun, 406. So is a sale of stock 
 by the pledgee after tender of the debt and without authority. Hope v. 
 Lawrence, 1 Hun, 317. 
 
 Id.; stolen horse. — One who innocently purchases a stolen horse is 
 liable to the owner for conversion. Bates v. Riordan, 21 Week. Dig. 
 134. 
 
 Id.; value. — In an action for conversion, proof of what plaintiff had 
 paid for the article alleged to have been converted is no proof of its 
 value, upon which plaintiff can recover more than nominal damages. 
 Whitmark v. Lorton, 15 Daly, 548; s. c, 29 N. Y. St. Rep. 322, 8 N. Y. 
 Supp. 480. 
 
 Damages, measure of. — In an action to recover damages for a breach 
 of a contract by which the plaintiffs agreed to manufacture and sell 
 to the defendant a quantity of garments, which breach grew out of the 
 defendant's refusal to accept the garments, the measure of damages 
 is the difference between the contract price and the actual cost of manu- 
 facturing and delivering the goods. In such a case the plaintiffs can 
 recover only tne lowest sum which they would have received as profit 
 if the contract had been fulfilled in any form which answered its terms. 
 Dryfoos v. Uhl, 69 App. Div. 118. 
 
 Decedent's debts. — As to whether this court has jurisdiction of an 
 action to charge the next of kin of a decedent with his debts, brought 
 under the Code of Civil Procedure, § 1837, qucere? tiiegel v. Cohen, 
 23 Misc. Rep. 365; s. c, 51 N. Y. Supp. 318. 
 
 Goods manufactured according to specifications and sale by sample. 
 — A sale by sample cannot be based upon the mere fact that the vendee 
 selected a certain type or style of goods from various grades exhibited 
 to him without any distinct stipulation that the goods to be delivered 
 were to correspond with any designated sample, especially where he 
 orders them manufactured according to specifications furnished by 
 him and which call for an article different in many particulars from 
 any exhibited to him, and therefore in such a ease no warranty can 
 be implied which will survive delivery and acceptance. Smith v. Coe, 
 170 N. Y. 162. 
 
 Infant; right of, to bring action. — Where an infant has a right of 
 action he is entitled to maintain an action thereon ; and the same 
 should not be delayed on account of his infancy. Code Civ. Proc, 
 % 468, made applicable by § 3347, subd. 3, of said Code. 
 
 Id.; necessaries. — The obligation of an infant to pay for necessaries 
 furnished to him is not greater than the obligation of his father in 
 respect thereto; they must be strictly necessaries, and in substance are 
 limited to such articles as are requisite for the body or for the proper 
 cultivation of the mind. 
 
 The infant cannot be charged with more than the fair value of the 
 necessaries furnished, even though he contracted to pay more.
 
 46 Jurisdiction and General Powees. >} 1, Sued. 1. 
 
 Theater tickets are not necessaries for an infant attending college. 
 
 An infant is not liable for borrowed money unless it is shown that 
 it was applied to his personal use for some necessity. Gray v. Sands, 
 66 App. Div. 572. 
 
 Id.; physician. — A physician called by a mother to attend her infant 
 child is not ehargeabb with constructive notice of the fact that the 
 father and mother of the child do not live together, and the father 
 is responsible to the physician for the value of the services thus 
 rendered. Dixon v. Chapman, 56 App. Div. 542. 
 
 Id.; wages of. — Parent or guardian who claims wages of minor 
 must notify employer within thirty days after commencement of ser- 
 vice, in default of which notice payment to the minor is valid. Laws 
 1850, p. 579, chap. 266; 24 Barb. 634. 
 
 Notification, effect of. — McClurg v. McKercher, 56 Hun, 305. Effect 
 of failure to notify employer. Watson v. Kemp, 42 App. Div. 372. 
 See also Domestic Relations Law (1896, chap. 272). § 42. 
 
 Installments on conditional sales; hiring, etc. — By section 139 of 
 this act an action may be maintained to recover a sum or sums due and 
 payable for installment, payment, or hiring. 
 
 Married woman's necessaries; abandonment. — Where the wife leaves 
 the husband without justification, he cannot be charged with her sup- 
 port. Catlin v. Martin, 69 N. Y. 393. What constitutes justification. 
 See Sykes v. Halstead, 1 Sandf. 483; Blomers v. Sturtevant, 4 Den. 46. 
 
 Id.; agency. — A complaint in an action to recover for necessaries 
 furnished to a wife is sufficient if it contains allegations which, if al- 
 leged in a declaration at common law, would have a cause of action 
 for goods furnished. The fact that it also alleges, in a case where the 
 defendant and his wife were living separate and apart from each other, 
 that the purchase was made by her as his agent, will not preclude a re- 
 covery without proof of an express agency, and the exclusion of evi- 
 dence tending to show that the articles furnished were necessaries for 
 the wife and children, on the ground that it tended to prove a different 
 cause of action, is reversible error. Hatch v. Leonard, 165 N. Y. 435, 
 revg., 38 App. Div. 128. 
 
 Id.; credit of the husband. — It must be shown that the necessaries 
 were furnished on the credit of the husband. Errick v. Bueki, 7 Misc. 
 Rep. 118. 
 
 A husband who abandons his wife and neglects to support her is 
 liable for moneys loaned to the wife on his credit, where it appears 
 that such moneys were used by the wife in the purchase of necessaries. 
 Kenny v. Meislahn, 69 App. Div. 572. 
 
 Id.; counsel fee; liability of husband for services of attorney. — The 
 reasonable value of the services of an attorney rendered in preparing 
 papers in a suit for separation by a wife against her husband, neces- 
 sary to be brought for her protection while she was living with him,
 
 § 1, SUBD. 1. JURISDICTION AND GENERAL POWERS. 47 
 
 but which papers were never served, the parties having become recon- 
 ciled, may be recovered from the husband upon the ground of his wife's 
 implied agency to bind him for necessaries. Langbein v. Schneider, 27 
 Abb. N. C. 228. The lamented Austin Abbott in a note to this case 
 says: "The importance of this question, and the absence of control- 
 ling authority in this State, leads me to present the argument of counsel 
 with unusual fullness." See also Naumer v. Grey, 28 App. Div. 529. 
 
 Id.; Domestic Relations Law as to " Certain rights and liabilities of 
 husband and wife" is to be found in Laws 1896, chap. 272, §§ 20-29, 
 p. 219. 
 
 Id.; separate maintenance. — If the husband provides for his wife's 
 separate maintenance, it will relieve him of his liability. Baker v. 
 Barney, 8 Johns. 72 ; Fenner v. Lewis, 10 Johns. 38 ; Raymond v. 
 Condrey, 19 Misc. Rep. 34. 
 
 In an action to recover for necessaries furnished by the plaintiff 
 to the defendant's wife in which evidence is given tending to show that, 
 at the time the necessaries were furnished, the defendant was living 
 apart from his wife and that he had made an adequate allowance for 
 her maintenance and support, it is error for the court to charge that 
 the plaintiff can recover if the jury find that he did not know or have 
 cause to know that the husband and wife were living apart and that 
 the latter was supplied with a suitable allowance. Hatch v. Leonard, 
 71 App. Div. 32. 
 
 Money deposited; accounting. — This court has jurisdiction of an 
 action to recover money deposited with defendant by plaintiff as an 
 assurance that an agreement for a partnership would be executed within 
 a time specified and not requiring an accounting. Lamport v. Ravid, 
 33 Misc. Rep. 115, 67 N. Y. Supp. 82. 
 
 Money had and received; accounting. — This court has jurisdiction of 
 an action for money had and received to the use of plaintiff, though it 
 was paid by another to defendant in violation of plaintiff's rights, the 
 amount being fixed and less than $500, and no accounting required or 
 equity to be determined. Dechen v. Dechen, 59 App. Div. 166, 68 N. Y. 
 Supp. 1043. 
 
 Partnership. — Where the defendant, in an action for money had and 
 received, admits that he received and holds for the use of the plaintiff 
 a specified sum, the fact that such fund arose out of a partnership 
 transaction is immaterial, and does not deprive this court of jurisdic- 
 tion of the action. Eckert v. Clark, 16 Misc. Rep. 67. 
 
 Promissory notes; action upon lost negotiable paper, — See Code Civ. 
 Proc., § 1917. In an action upon negotiable paper, which has been 
 lost, the giving of a bond under the statute, with sufficient sureties, 
 conditioned to indemnify the defendant against all claims by any other 
 person on account thereof, is an essential prerequisite to any recovery 
 thereon. Desmond v. Rice, 1 Hilt. 530. See also § 240.
 
 48 Jurisdiction and General Powers. § 1, Subd. 2. 
 
 Id.; accommodation note; usury. — A promissory note, made for the 
 accommodation of the payee, and transferred by him before maturity 
 to a third person at i discount which made the interest reserved fortj 
 per cent, per annum, is not enforceable by the transferee against the 
 accommodation maker. Want of knowledge on the part of the trans- 
 feree that the note was accommodation paper and had no inception 
 until it passed into his hands is immaterial. The Negotiable Instru- 
 ments Law (Laws 1897, chap. 012) lias not altered the rule. ,SI rick- 
 land v. Henry, 00 App. Div. 23. 
 
 Rent due on a holiday, other than Sunday, is payable on that day. 
 Walton v. Stafford, 162 N. Y. 558. 
 
 Statute of frauds. — An oral contract of employment not by its terms 
 to extend beyond one year, nor for any definite time, is not void. 
 Rochester, etc., R. Co. v. Browne, 55 App. Div. 444, 66 N. Y. Supp. 867. 
 
 Terms of contract.- — Plaintiff sued upon a written contract for the 
 payment to it of a specified sum monthly, for advertising defendant's 
 business in the street cars of a certain city, demanding the amount 
 due for one month. Defendant interposed a general denial coupled 
 with an admission of the execution of the contract, but the litigation 
 concerned the terms thereof, and a less sum than that specified was 
 recovered. Held, that the recovery should be sustained against the 
 objection that the court had exercised equity powers in reforming the 
 contract, the evidence supporting the judgment rendered. Railway 
 Advertising Co. v. Standard Rock Candy Co., 29 Misc. Rep. 115, 60 
 N. Y. Supp. 265. 
 
 Title. — An action by the purchaser for damages for a vendor's breach 
 of contract to convey a good title is w r ithin the jurisdiction of this 
 court, not being a cause in equity. Katz v. Henig, 32 Misc. Rep. 672, 
 66 N. Y. Supp. 530. 
 
 Waiver of amount in excess of jurisdiction. — A recovery in excess 
 of the jurisdiction may be waived and a recovery had up to that 
 amount. Globe v. Ranch, 21 Misc. Rep. 48. 
 
 2. An action upon a bond conditioned for the payment of 
 money where the sum claimed to be due does not exceed 
 five hundred dollars, the judgment to be rendered for the 
 sum actually due. Where the sum secured by the bond is to 
 be paid in installments, an action may be brought for each 
 installment as it becomes due. 
 
 Notes to section i, subdivision 2. 
 
 This subdivision is the same as former subdivision 4 of section 1364 
 of the Charter of 1897, as amended in 1901, and was formerly sub-
 
 § 1, Sued. 3. Jurisdiction and General Powers. 49 
 
 division 2 of section 1285 of the Consolidation Act (Laws 1882, chap. 
 410). 
 
 Subdivisions 3, 4, and 5 of section 1304 of this act are all provisions 
 for actions on bonds or undertakings. 
 
 See under subd. 3 for notes upon undertakings and bonds. 
 
 3. An action upon a surety bond or undertaking taken in 
 any court where the amount claimed in the summons does 
 not exceed the sum of five hundred dollars. 
 
 Notes to section i, subdivision 3. 
 
 This subdivision is taken from subdivision 5 of the Charter of 1897, 
 as amended in 1901, and was formerly subdivisions 4 and 12 of section 
 1285 of the Consolidation Act (Laws 1882, chap. 410). 
 
 Action on undertaking when maintainable against sureties in an un- 
 dertaking given on behalf of the defendant to procure a return of the 
 chattel, or against the bail of a defendant who has been arrested. See 
 § 126, and notes. 
 
 Amendment of undertaking can only be had with consent of the 
 sureties. Lane/ley v. Warren, 1 N. Y. 606; s. c, 3 How. Pr. 363, 1 
 Code Rep. Ill: Wilson v. Allen, 3 How. Pr. 369. Consult however 
 Wood v. Kelly, 2 Hilt. 334; Irwin v. Muir, 13 How Pr. 409; s. c, 4 
 Abb. Pr. 133. See Robinson v. Moron, 23 Week. Dig. 326. 
 
 Appearance, bond for, given with sureties for appearance at court, to 
 abide the order of the court, where the person has been adjudged guilty 
 of the misconduct alleged, and punishment by fine and imprisonment 
 ordered, cannot be prosecuted at the same time that a warrant of com- 
 mitment is issued against the party. The statute does not give the 
 aggrieved party two final and complete remedies for the same offense. 
 Barton v. Stiffs, 32 How. Pr. 456. 
 
 Arrest and imprisonment. — The arrest and imprisonment of a judg- 
 ment debtor upon an execution against his body is in law a satisfaction 
 of the judgment so long as the imprisonment continues, and during that 
 period no action can be maintained by the judgment creditor against one 
 standing as surety for the debtor, or to enforce collateral securities 
 held for the payment of the judgment. Plaintiff commenced an action. 
 B. made application to have the cause removed, giving the bond required 
 by the statute (chap. 344, Laws 1857), conditioned for the payment 
 of any judgment recovered against him. Plaintiff recovered judgment. 
 In an action against the sureties upon the bond, defendants showed 
 that B. was taken in execution upon the judgment. Held, that while 
 B.'s imprisonment continued the bond could not be enforced either 
 against him or his sureties; that as it did not appear that he had been 
 
 4
 
 50 Jurisdiction and General Powers. § 1, Subd. 3. 
 
 discharged, the presumption was his imprisonment did continue; and 
 that the plaintiff could not maintain his action. Koenig v. Steckel, 58. 
 N. Y. 475. 
 
 Attachment. — The liability of the sureties on an undertaking given 
 on obtaining an attachment is not affected by the fact that after the 
 attachment was vacated it was reinstated, the order of reinstatement 
 having afterward been itself vacated. Epstein v. V. 8. Fidelity & 
 Guaranty Co., 29 Misc. Rep. 295, revg. 28 Misc. Rep. 440. 
 
 Where a motion to vacate an attachment, although at first success- 
 ful, is denied on appeal but not apparently on the merits, and the 
 action is thereafter tried and results in a judgment dismissing the 
 complaint, the surety upon the undertaking given to secure the attach- 
 ment is liable for the costs and expenses of the proceedings to vacate 
 the attachment as well as for the costs and expenses of defending the 
 action. Tyng v. American Surety Co., 69 App. Div. 137. 
 
 Cause of action. — The sureties are only liable for the cause of action 
 for which they gave an undertaking, so that if a replevin action fails 
 and the complaint is amended, so as to set up an equitable lien upon 
 which a recovery is had, the court is justified in the judgment in 
 barring the remedy of the defendant upon the replevin bond. National 
 Bank. etc. v. Rogers. 166 N. Y. 360, affg. 44 App. Div. 357. 
 
 In an action against sureties, in replevin, they are bound only accord- 
 ing to the terms of their undertaking, and when defendant has not de- 
 manded in his answer a judgment of return of the property, he could 
 not have a judgment awarding to him possession of the property; such 
 a demand in the answer is necessary to give the justice jurisdiction to 
 render such a judgment. Brown v. Weppner, 62 Hun, 581; Salisbury 
 V. Stinson, 10 Hun, 242; Frost v. Kopp, 13 Civ. Pro. Rep. 377. 
 
 Discontinuance of action. — Plaintiff in replevin gave the usual un- 
 dertaking. On the day fixed for trial he withdrew the action, defendant 
 protesting, and a judgment of discontinuance was entered. In an 
 action on the undertaking, held, that such withdrawal w T as a breach 
 of the undertaking, and that plaintiff in this action was entitled to 
 recover. Tyler v. Miller, 8 Week. Dig. 290. 
 
 Escape. — The action against sureties upon an undertaking for the 
 jail limits must be begun by the service of the summons while the 
 debtor is beyond the jail limits. The sureties are liable for the amount 
 of the debt for which the debtor was committed, although the debtor 
 is insolvent. Flynn v. Union Surety & Guaranty Co., 61 App. Div. 
 170, 70 N. Y. Supp. 403. 
 
 Estoppel. — By giving the undertaking, the defendant is estopped 
 from contradicting the facts recited and contained in it. Haggard v. 
 Morgan, 4 Sandf. 198. 5 N. Y. 422; Pendleton v. Franklin. 3 Sandf. 
 572; Decker v. Judson, 16 N. Y. 439; Coleman v. Bean, 3 Keyes, 94, 
 1 Abb. App. Dec. 394.
 
 § 1, Subd. 3. Jurisdiction and General Powers. 51 
 
 The parties in a claim and delivery action may waive the formali- 
 ties of the statutory proceedings, and in such case the sureties to the 
 undertaking are bound by the waiver and are estopped from question- 
 ing the recitals in the undertaking, and this although they had no 
 knowledge of the facts that the proceedings were not to be taken and 
 the undertaking used in the manner prescribed by the statute. Harri- 
 son v. Wilkins, 69 N. Y. 412. 
 
 Where the defendant in a claim and delivery action, in which the 
 plaintiff claims immediate delivery, after the sheriff has taken posses- 
 sion of the property, gives an undertaking pursuant to the Code, and 
 upon the undertaking obtains delivery and retains the property, he is 
 estopped thereby from denying that he had possession of the property 
 at the time of the commencement of the action. Diossy v. Morgan, 74 
 N. Y. 11. 
 
 Evidence to impeach undertaking. — In an action on an undertaking 
 it is error to exclude evidence that the order in pursuance of which it 
 was given was void, for want of jurisdiction, by reason of the absence 
 of one of the magistrates who should have taken part in the proceed- 
 ings. People ex rel. Commissioners of Public Charities and Correction 
 of the City of A etc York v. Dando, 20 Abb. N. C. 245. 
 
 Execution must have been issued and returned unsatisfied. — Where 
 in an action of replevin the plaintiff recovers a judgment for the pos- 
 session of the property with damages for its detention, and for a fixed 
 sum in case a return cannot be had, he cannot maintain an action 
 against the sureties to an undertaking, given by the defendant, until 
 an execution has been issued to the sheriff in pursuance of the judg- 
 ment and the same has been returned duly unsatisfied. Hagcr v. Clute, 
 10 Hun, 447. 
 
 Executor must sue in his representative capacity, and although an 
 amendment from an individual to a representative capacity is allowed 
 in the affidavit, the undertaking given citing him as an individual 
 as claimant. Held, that judgment for the plaintiff could not be sus- 
 tained. Taylor v. .Jackson, 35 Misc. Rep. 300, 71 N. Y. Supp. 745. 
 
 Exempt property under execution; seizure of. — The sureties upon the 
 official bond of a constable, who, under an execution against a house- 
 holder, seizes a stove, sewing machine, linen, and wearing apparel, and 
 other personal property, the value of which amounted to less than 
 $50, and which comprises all the household furniture belonging to 
 the householder, and was therefore wholly exempt, are liable to the 
 householder for the value of the property, notwithstanding the fact that 
 the latter did not forbid the sale. 
 
 The fact that the execution, under which the levy was made, was 
 issued upon a judgment against the householder, obtained in part for 
 exempt personal property, does not relieve the sureties from liabilities. 
 
 The official bond of the constable covers his illegal acts, and it is
 
 52 Jurisdiction and General Powers. § 1, Stjbd. 3. 
 
 not necessary to sue the constable first in order to enforce the lia- 
 bility of the sureties thereon. Orieb v. Northrup, 66 App. Div. 86. 
 
 Exception to and justification of sureties. — By section 70 of this act 
 sections 106 to 110 and sections 127 and 128, relating to undertakings, 
 sureties, and justification, are made applicable. 
 
 Fraud in making assignment. — This courl bas jurisdiction, in an 
 action upon a bond given by a claimant of attached property, to try 
 the question of fraud in the making of an assignment for the benefit 
 of creditors under which the claimant claimed title to the property, as 
 no affirmative relief on that ground is asked. Malkemesius v. Pauly 
 < ' .'/.. 17 Misc. Rep. 371. 
 
 Insurance agent. — What, modification of the contract between the 
 company and its agent discharges the surety. American Casualty Ins. 
 Co. v. Green, 70 App. Div. 207. 
 
 Joint and several liability. — Although the sureties did not execute 
 an undertaking providing that they were jointly and severally liable, 
 a defense that the undertaking was not executed by them " pursuant 
 to the statute in such case made and provided " was held of no avail 
 to them, that the provision was for the benefit of the obligee, and if 
 he choose to accept it in the form it was given in, and it was not shown 
 that the principal did not have the full benefit of the stay, the defense 
 was not valid. Denikc v. Denike. 01 App. Div. 492, 70 X. Y. Supp. 
 629. 
 
 Liability of sureties. — See notes to § 315. 
 
 Marshal's return is presumptive evidence against surety. — See §§ i27 
 and 271, subd. 3. 
 
 Mechanic's lien bond. — Sureties on a mechanic's lien bond may defend 
 themselves and their principals in an action brought to foreclose it, 
 in which action the judgment demanded is in form againsf the prop- 
 erty represented by the bond, and therein may set up any legal or equi- 
 table defense which would have availed the principals and are not pre- 
 cluded from contesting an unjust, false, and exaggerated claim, by the 
 default of the principals in failing to defend it. JEschlimann v. Pres- 
 byterian Hospital, 165 N. Y. 296. 
 
 Mistakes, omissions, defects, and irregularities, and general regula- 
 tions respecting bonds and undertakings. — Sections 728, 729, 730, and 
 810 to 816 inclusive, of the Code of Civil Procedure apply to this 
 court by subdivision 6 of section 3347. 
 
 Order of arrest. — Right of action on the undertaking where the order 
 has been vacated. Measure of damages. Payments by the principal 
 obligor. Kraiisc v. Rutherford, 37 Misc. Rep. 382. 
 
 The undertaking given on obtaining an order of arrest, provided that 
 if defendant " recover judgment herein, or if it is finally decided that 
 plaintiff was not entitled to the order oi arrest, plaintiff will pay all 
 costs which may be awarded to defendants, and all damages which they,
 
 § 1, Subd. 3. Jurisdiction and General Powers. 53 
 
 or either of them, may sustain by reason of the arrest, not exceeding 
 the sum of $250." Held, that a defendant, on procuring an order vacat- 
 ing the order for his arrest on the papers on which it was granted, 
 was entitled to maintain an action on the undertaking, without waiting 
 to obtain judgment in the action. Krause v. Rutherford, 45 App. Div. 
 132. 
 
 Held also, that defendant was not required to obtain leave of the 
 court before bringing the action, the provisions of Code Civ. Proc, 
 § 814, applying to undertakings given to the people or to public officers. 
 
 Held also, that he was entitled to recover counsel fees and expenses 
 in moving to vacate the order of arrest up to the time of the commence- 
 ment of the action and lor loss of his time during his imprisonment, 
 but not the whole $250, unless he showed damages to that amount. 
 
 Held also, that it was error to charge that the suffering he endured 
 from his imprisonment, of either body or mind, was a proper element 
 to be considered, and to refuse to charge, " The jury cannot award any 
 damages because of any disgrace which has attended," the rule being 
 different from that obtaining in an action for false imprisonment. 
 
 Removal. — The defendant is not bound to exhaust his remedies 
 against the judgment debtor before bringing suit on the undertaking. 
 Johnson v. Aekerson, 3 Daly, 430. 
 
 Replevin. — Failure of the defendant, successful in a replevin suit, to 
 serve on the plaintiff a notice to return the property, as required by 
 Code Civ. Proc, § 1725, is not a defect available to the sureties sued 
 on the undertaking. Christiansen v. Mendham, 45 App. Div. 554. 
 
 Where the chattel replevied was not returned and the action was 
 discontinued, the extent of the liability of the sureties upon an under- 
 taking therefor is the value of the property replevied and not the 
 penalty specified. Pet tit v. Allen, 64 App. Div. 579, 72 N. Y. Supp. 287. 
 
 To establish such liability, it is necessary to prove that the plaintiff 
 in replevin took possession of the chattel by virtue of his writ, the 
 undertaking containing no such recital of possession as in the case of 
 defendant's undertaking for the return of the property after it was 
 taken from him. PettU v. Allen, 04 App. Div. 579, 72 X. Y. Supp. 287. 
 
 Title to real property in question. — The sureties upon the undertak- 
 ing given in such case may be sued in this court as provided in section 
 2, subdivision 1. And see § 180. 
 
 Undertaking synonymous with bond. — An undertaking being merely 
 a simplified bond without seal, the equity of the statute giving a remedy 
 upon the bonds, is applicable to undertakings. People ex rel. Commis- 
 sioners of Public Charities and Correction of the City of New York v. 
 Dando, 20 Abb. X. ('. 245. 
 
 See as to the difference between bonds and undertakings and the right 
 of action upon them. 1 Abb. X. S. 61, 4(14, 405, where the cases are 
 collected. See also Lutes v. Shelley, 40 Hun, 197.
 
 54 Jurisdiction and General Powers. § L, Subd. 4. 
 
 Vessels. — An undertaking given to enforce a lien on a vessel may be 
 prosecuted in this court, (ode Civ. Proc., § 3438. 
 
 4. An action in behalf of the people of the state or of the 
 city of New York, brought by the direction of a commis- 
 sioner of public charities or an overseer of the poor upon a 
 bastardy or abandonment bond in a case where it is pre- 
 scribed by law that such an action can be maintained. 
 
 Notes to section i, subdivision 4. 
 
 This subdivision is taken from subdivision 8 of section 1285 of the 
 Consolidation Act (Laws 1882, chap. 410), the Charter of 181)7, as 
 amended in 1901, and subdivision 3 of section 3215 of the Code of Civil 
 Procedure. The amendment consists in omitting at the end thereof 
 the words, " in said Municipal Court of the city of Xew York, or in 
 any court not being a court otf record.'' 
 
 Section 178 provides for, " Pleadings in actions on bastardy bonds." 
 and section 339 provides for " Costs in action upon bastardy, et cetera, 
 bonds." 
 
 Has jurisdiction been conferred in an action upon a bastardy or 
 abandonment bond by this subdivision? — It is doubtful whether such 
 jurisdiction has been given as it seems was sought to be done by the 
 provisions of this subdivision. There is no " case where it is prescribed 
 by law that such an action can be maintained.'' The subdivision itself 
 does not give the jurisdiction except in a case where it is prescribed by 
 law that such an action can be maintained; but where is the case, and 
 where is the law where it is prescribed that such an action can be 
 maintained? Originally the District Courts had jurisdiction of such 
 actions, the same being conferred by Laws 1862, chapter 389, section 1, 
 which was repealed by Laws 1880, chapter 245. and Laws 1881, chapter 
 537, but no enactment has since been made prescribing that such an 
 action can be maintained in this court. The former subdivision 8 of 
 section 1364 of the Charter of 1897, as amended in 1901, read: '* In a 
 case where it is prescribed by law such an action can be maintained 
 in said Municipal Court of the city of New York, or in any court not 
 being a court of record." It will be observed that the amendment con- 
 sists in omitting the words. " in said Municipal Court of the city of 
 New York, or in any court not being a court of record." We fail to 
 sec how this omission confers the jurisdiction as tbe subdivision now 
 reads. We have still to find the "ease where it is prescribed ; 
 that such an action can be maintained." 
 
 Subdivision 10 of section 1364 of the Charter of 1897, as amended 
 in 1901, contained a similar provision in giving this court jurisdiction
 
 •§ 1, Subds. 5, 6. Jurisdiction and General Powers. 55 
 
 upon a bond of a marshal, to wit, " in a case where it is prescribed by 
 a special statutory provision that such an action can be maintained in 
 a District Court, or in said Municipal Court," but such special statu- 
 tory provision could readily be found in said Charter o-f 1897, as 
 amended in 1901, the same being section 1428 thereof. 
 
 In our fourth edition of this work, published in 1898. after an ex- 
 haustive investigation and examination, we wrote a lengthy note upon 
 this subject, coming to the conclusion that no such jurisdiction had 
 been conferred, and it does not seem that the present subdivision has 
 conferred such jurisdiction. See also §§ 178 and 339, and notes. 
 
 Jury trial. — If this court has jurisdiction of such an action, it seems 
 a jury trial of twelve men may now be had. Under the provisions of 
 former section 1369 of the Charter of 1897, as amended in 1901, sub- 
 division 8 of -section 13G4, purporting to give jurisdiction " upon a 
 bastardy or abandonment bond," was excepted thereby from such jury 
 trial. Section 1369 has now been repealed and no disposition has been 
 made of the exception. 
 
 5. An action upon the bond of a marshal of the city of 
 ISTew York, as prescribed in this act. 
 
 Notes to section i, subdivision 5. 
 
 This subdivision is taken from subdivision 10 of the Charter of 1897, 
 as amended in 1901. It was formerly subdivision 9 of section 1285 
 of the Consolidation Act (Laws 1882, chap. 410), and subdivision 4 of 
 .section 3215 of the Code of Civil Procedure. The former provisions 
 as to the maintenance of this action are annulled and are now pro- 
 vided for in sections 295-300. 
 
 Jury trial. — A jury trial of twelve men may now be had. Under the 
 provisions of former section 1369 of the Charter of 1897, as amended 
 in 1901, subdivision 10 of section 1364, giving jurisdiction of an action 
 " upon the bond of a marshal," was excepted from such jury trial. 
 Section 1369 has now been repealed, and no disposition has been made 
 of the exception. 
 
 6. An action upon a judgment rendered in any court not 
 being a court of record. 
 
 Notes to section 1, subdivision 6. 
 
 This subdivision is taken from subdivision 6 of the Charter of 1897, 
 as amended in 1901, and was formerly subdivision 5 of section 1285 
 of the Consolidation Act (Laws 1882, chap. 410), and subdivision 6 
 of section 2862 of Code of Civil Procedure.
 
 56 Jurisdiction a.\i> General Powers. § 1, Subd. 7. 
 
 The provisions as to the maintenance of an action upon a judgment 
 against joint debtors, where one of them has been served, are to be 
 found in sections 2d4 to 268. 
 
 Section 268 provides for an action upon a judgment obtained against 
 joint debtors. 
 
 Statute of limitations. — By section 380, Code Civ. Proc, " The follow- 
 ing actions must he commenced within the following periods, after 
 the cause of action accrued.'' 
 
 § 382, Code Civ. Proc. Within six years. — Subd. 7. "An action 
 upon a judgment or decree rendered in a court not of record, except 
 where a transcript shall be filed pursuant to section 3017 of this act, 
 and also except a decree in a Surrogate's Court of the State. The 
 cause of action in such a case is deemed to ha-ve accrued when final 
 judgment was rendered." 
 
 See also Harris v. Clark, 47 N. Y. St, Rep. 780. 
 
 7. An action for a fine or penalty not exceeding five hun- 
 dred dollars, including an action to recover a penalty given 
 by the charter of the city of Xew York or any by-law or 
 ordinance thereof or by any statute of the state. 
 
 Notes to section i, subdivision 7. 
 
 This subdivision is the same as subdivision 3 of the Charter of 1897, 
 as amended in 1901, without any change. It was taken from sub- 
 division 7 of section 1285 of the Consolidation Act (Laws 1882, chapter 
 410). 
 
 For general provisions respecting " action for a fine, penalty, or for- 
 feiture, or upon a forfeited recognizance," see Code Civ. Proc, §§ 1961— 
 1968. 
 
 Building Code. — Violation of penalties of; all courts have jurisdic- 
 tion. See § 151, Building Code, ordained by Municipal Assembly pur- 
 suant to § 647, Greater New York Charter. 
 
 Bureau for the recovery of penalties. — By section 259 of the Charter 
 (Laws 1901, chap. 466), such a bureau is created in the law depart- 
 ment of the corporation counsel to recover penalties for the violation 
 of any law or municipal ordinance, called the " Bureau for the Recov- 
 ery of Penalties." 
 
 Commissioner of docks. — By section 816 of the charter, the head 
 of the department of docks and ferries is called the commissioner of 
 docks, and by section 827 he is given power to make general ordinances, 
 for a violation of which a penalty of $500 is imposed, recoverable by 
 suit in the name of the city of New York, to be prosecuted by the 
 corporation counsel.
 
 § 1, Subd. 7. Jurisdiction and General Powers. 57 
 
 Department of health. — Violations of department orders ; action for, 
 and penalties. See § 1202, Greater New York Charter. 
 
 Fire commissioner may sue for a penalty in his own name. Charter 
 of 1901, § 731. 
 
 Fish poles. — By sections 736 to 739 of the Consolidation Act (Laws 
 1882, chap. 410), left unaffected by the Charter of 1897, as amended in 
 1901, a penalty of $5 is imposed for each pole driven for the purpose 
 of fishing where the water is of greater depth than six feet in mean low 
 tide. 
 
 Oysters taken out of the Harlem river. — The provisions of the 
 Consolidation Act (Laws 1882, chap. 410, §§ 767, 769, 770), relating 
 to this subject, and the recovery of the $50 penalty for a violation 
 thereof, are left unaffected by the Charter of 1897, as amended in 1901. 
 
 Pilots; commissioners. — By section 771 of the Consolidation Act, 
 all fines and penalties incurred under sections 736, 746, 748, 756, 764, 
 and 747 to 783, inclusive, of the Consolidation Act, shall be recoverable 
 by and in the name of the commissioners of pilots. 
 
 Section 771 of the Consolidation Act has been left unaffected. 
 
 Sections 746, 780, 781, 782 of the Consolidation Act are superseded 
 by the Charter section 880. 
 
 Section 748 of the Consolidation Act is superseded by Laws 1882, 
 chapter 160. 
 
 Section 756 of the Consolidation Act is affected by section 4653 ct scq. 
 of the United States Revised Statutes. 
 
 Section 764 of the Consolidation Act is affected by section 417S of 
 the United States Revised Statutes. 
 
 Sections 777, 778, and 779 of the Consolidation Act are revised by 
 the Charter sections 851, 852, and 853. 
 
 Sections 780, 781, 782, and 783 of the Consolidation Act are revised 
 and superseded by the Charter section 880. 
 
 Pilotage fees. — Authorized to be collected whenever a pilot shall be 
 refused by a vessel navigated by steam, to be sued for and recovered 
 in the name of the pilot tendering such service; and such pilotage 
 when recovered shall belong to and may be retained by such pilot for 
 his own use and benefit. § 2134, Cons. Act, as amended by Laws 1890, 
 chap. 191, p. 403. (Unaffected by the Charter.) 
 
 Port wardens. — The recovery of $100 penalty for violation of duties 
 as prescribed in section 2090 of the Consolidation Act are unaffected 
 by the Charter of 1897, as amended in 1901. 
 
 Steamboats.— By section 757 of the Consolidation Act (unaffected 
 by the Charter of 1897, as amended in 1901), steamboats must run in 
 the center of the river at a speed not exceeding eight miles an hour 
 under a penalty of $250 fine, to be sued for in the name of the people 
 by the district attorney of any county bordering on the waters on 
 which the offense shall have been committed.
 
 58 JURISDICTION AND GENERAL POWERS. § 1, SlJBD. 8. 
 
 Further and other fines and penalties for violations are fixed by 
 various ordinances, statutes, and laws, among others, the size of apple, 
 pear, and potato barrels; refusal to permit a stockholder to inspect 
 stock-books; unlawful possession of milk and cream cans, and the 
 Game Laws, over all of which, and many others, this court has juris- 
 diction by the broad and general language of this section. 
 
 Action where to be brought. — By section 25 of this act, subdivision 
 5, the action to recover a fine or a penalty must be brought in the 
 district in which the violation happened or occurred. 
 
 Indorsement on summons. — In actions to recover a penalty there 
 must be an indorsement on the summons containing a reference to the 
 statute in the form provided by section 38 of this act. See also Code 
 Civ. Proc, § 1897, and Schumaker v. Brooks, 24 Hun, 553. 
 
 8. An action to recover damages for an escape from the 
 jail liberties of any county within the city of New York, 
 where the sum claimed does not exceed five hundred dollars. 
 
 Notes to section i, subdivision 8. 
 
 This subdivision was subdivision 9 of the Charter of 1897, as amended 
 in 1901, and has been very materially amended. Prior to 1897 the 
 District Courts had no such jurisdiction, and when it was given to this 
 court by subdivision 6 of section 1364 of the Charter of 1897, the 
 amount was limited to $100, as provided by chapter 2, title 2, articles 
 4 and 5, sections 145 to 171, of the Code of Civil Procedure, relating to 
 jail liberties, escapes, and actions upon undertakings for jail liberties. 
 
 Execution against the person. — A marshal was directed by an execu- 
 tion to satisfy the same out of the debtor's property, and if sufficient 
 property could not be found, to arrest him and commit him to jail, there 
 to remain until he paid the judgment or was lawfully discharged. 
 While the debtor was in the custody of the marshal, the latter was 
 served with an order to show cause why the judgment should not be 
 opened by a temporary stay. He took the prisoner to the courthouse 
 of the district judge, who had departed. The hearing of the motion 
 was adjourned, and the marshal voluntarily allowed the prisoner to 
 go at large. Held an escape. Even if the judge had power to granl 
 a stay after final judgment, the one granted did not authorize debtor's 
 discharge. Zenner v. Blessing, 4 N. Y. Supp. 866. 
 
 Liability of bail; debtor insolvent. — On an escape from the liberties 
 of the jail by an execution debtor who is served with summons, and the 
 action on the undertaking begun while he is beyond the jail limits, 
 the surety is liable for the amount of the debt for which the debtor 
 w.i- committed, although the debtor be insolvent. Flynn v. Vi ion 
 Surety & Guaranty Co., til App. Div. 170, 70 X. Y. Supp. 403.
 
 § 1, Subd. 9. Jurisdiction and General Powers. 59 
 
 Liability of officer. — In an action against an officer for the escape of 
 a judgment debtor, against whose person an execution was delivered 
 to defendant, plaintiff must show that the judgment debtor was taken 
 into custody before the alleged escape. Jackson v. Comisky, 30 Misc. 
 Rep. 022. 
 
 Return of prisoner. — The voluntary return of the prisoner after the 
 action is begun does not affect the liability of the surety under section 
 160 of the Code of Civil Procedure. Flynn v. Union Surety & Guaranty 
 Co., 01 App. Div. 170, 70 N. Y. Supp. -103. 
 
 9. An action to recover one or more chattels with or with- 
 out damages for the taking, withholding or detention thereof, 
 where the value of the chattel or- of all the chattels as stated 
 in the affidavit made on the part of the plaintiff does not ex- 
 ceed five hundred dollars. 
 
 Notes to section i, subdivision 9. 
 
 .This subdivision is the same as subdivision 7 of the Charter of 1897, 
 as amended in 1901, and was formerly subdivision 6 of section 1285 
 of the Consolidation Act, and section 2682 of the Code of Civil Pro- 
 cedure. 
 
 Title III, article III, sections 95 to 131, of this act, provides for 
 " Replevin " or the proceedings in an "Action to recover a chattel." 
 
 The action of replevin is based upon a tortious act of defendant, and 
 is an action ex delicto. Bernheimer v. Hartmayer, 50 App. Div. 316, 
 63 X. Y. Supp. 978. 
 
 When the action lies. — Plaintiff must have legal title to the prop- 
 erty, and though defendants do not prove title in themselves, but in 
 a club, they having interposed a general denial, which put in issue 
 plaintiff's property in the chattels as well as a wrongful detention. 
 Held, the plaintiff was not entitled to judgment. Levy v. Kelter, 63 
 App. Div. 392, 71 N. Y. Supp. 509. See also Shapiro v. Lankay, 35 
 Misc. Rep. 39, 70 N. Y. Supp. 218. 
 
 Bankruptcy. — A trustee in bankruptcy may bring an action in this 
 court to recover chattels in which he had an interest at the time the 
 petition was filed. Franker v. MoAdam, 32 Misc. Rep. 512, 66 N. Y. 
 Supp. 379. 
 
 Conditional sale. — The plaintiff may recover the goods on default of 
 payment without tendering money received. Scher v. Roher, 34 Misc. 
 Rep. 792, 69 N. Y. Supp. 929. 
 
 The owner of a sewing machine, sold with a condition precedent of 
 payment, is not entitled to maintain an action of replevin, where she is 
 in default as to payments required; nor can she recover damages for
 
 GO Jurisdiction and General Powers. § 1, Subd. 0. 
 
 the unlawful detention of the machine where she has not proved any 
 damages, but merely the value of the machine. Tserman v. Conklin, 
 21 Misc. Rep. 194. See also Hemstreet v. Henley, 21 Misc. Rep. 420. 
 
 Custody and control. — An action of replevin is not maintainable 
 against the fraudulent buyer of goods where, prior to the demand for 
 their return, and before the commencement of the action, they were 
 taken from defendant on execution against him and' sold, so that, at 
 the time of such demand and commencement of the action, they were 
 not in the defendant's custody or control. Svnnott v. Felack, 165 
 X. Y. 444. 
 
 The rule is that replevin is essentially a possessory action which 
 can only be maintained where the defendant is in possession of the 
 chattels at the time of the commencement of the action excepting only 
 ivhere he has voluntarily parted with the property. Sinnott v. Felack, 
 165 N. Y. 444. 
 
 Damages. — It seems that while jurisdiction in actions of replevin is 
 restricted to cases in which the value of the chattel shall not exceed 
 $500, there is no limitation upon the amount of damages which may 
 therein be awarded. Barnard v. Devinc, 34 Misc. Rep. 182, 68 X. Y. 
 Supp. 859. 
 
 Fraud. — Where property has been acquired fraudulently, under cir- 
 cumstances which would entitle the vendor to reclaim the same, and 
 the seller has sold it with intent to perfect the fraud, and put it be- 
 yond the reach of the seller, an action to recover the same lies, though 
 the property is no longer in the defendant's possession. Barnett v. 
 Selling, 70 N. Y. 492; s. c, 9 Hun, 236. 
 
 An action for a chattel will lie against a person receiving it. with 
 knowledge, from a fraudulent vendee, although he had parted with the 
 chattel before the action was commenced. Meacham v. Collignon, 
 7 Daly, 402. 
 
 Interest in property. — Where the owner of a hotel leases the hotel 
 property, leaving whisky, which is part of his stock in trade, in the 
 possession of the lessees under an agreement that the latter should 
 retail it over their bar and pay him for what they so used, the lessees 
 have an interest in the whisky which is subject to seizure and sale 
 under execution. In an action of replevin the plaintiff is not entitled 
 to recover as damages the value of the legal services rendered in the 
 premises to him by his attorney prior to the commencement of the 
 action. Cook v. Gross, 60 App. Div. 446. 
 
 Mingling goods. — In an action to recover grain, where the defendant 
 had mixed his own grain with that of the plaintiff, held, that it was a 
 case of confusion of goods, and, as the grain could not be separated, 
 the defendant could not thus defeat the action, and must bear the loss. 
 Samson v. Hose, 65 X. Y. 411.
 
 § 1, Subd. 9. Jurisdiction and General Powers. 61 
 
 Money. — Replevin will not lie for money unless belonging lo plaintiff 
 specifically and so described. Sager v. Main, 44 N. Y. 445. 
 
 No title. — So the action lies against one who lias sold the goods hav- 
 ing innocently purchased from one having no title. Ross v. Cassidy, 
 27 How. Pr. 411. 
 
 Offer to restore property. — The object of the proceeding is the re- 
 covery of the property ; and if, before the action is brought, the de- 
 fendant offers to restore the property, the object is attained, and the 
 proceeding is unnecessary. The offer is the same as a tender before 
 action brought. Savage v. Perkins, 11 How. Pr. 17. 
 
 Possession. — The owner may maintain replevin if a chattel is taken 
 from his actual or constructive possession. Ely v. Ehle, 3 X. Y. 506. 
 
 An action can be maintained in favor of a plaintiff who has either 
 the title to the property or the right of its immediate possession ; both 
 need not be combined. Davis v. Morrell, 16 Week. Dig. 530; Sard I v. 
 Wauful, 21 Civ. Proc. Rep. 18, 16 N. Y. Supp. 219. See also Appleby 
 v. Hollands, 8 App. Div. 375; Wheeler v. Vandeveer, 88 Hun, 233. 
 
 Replevin will lie, although the defendant has parted with the posses- 
 sion of the property, and it has passed beyond the reach of the process 
 of the court. Bamett v. Selling, 3 Abb. N. C. 83; s. c, 9 Hun, 236; 
 affd., 70 N. Y. 492; Boyd v. Hoicden, 3 Daly, 455. See Sinnott v. 
 Felack, 165 N. Y. 444. 
 
 The owner of a chattel may in general replevy it from any person 
 who has it in his possession and who has no right to retain it as. 
 against him. Read v. Brayton, 143 N. Y. 342. See also National 
 Bank, etc. v. Rogers, 1 App. Div. 625; Hoffman v. Markham, 88 Hun, 
 18. 
 
 Promissory notes and checks. — In order to enable the plaintiff to 
 maintain an action for the recovery of promissory notes, a title to the 
 note must be shown : a right to their proceeds will not suffice. Black 
 River Ins. Co. v. A T . Y. S. Loan & T. Co., 73 N. Y. 282. 
 
 A note delivered by plaintiff to defendant, upon his stipulation not to 
 part with it, may be recovered, although defendant has pledged it as 
 collateral security for an indebtedness owing to him. Etrell v. De Pen- 
 nevet, 14 Civ. Proc. Rep. 336. 
 
 Where, by the contract of sale, the property is forfeited for nonpay- 
 ment of the purchase money, and the plaintiff, after a demand, takes 
 the defendant's check for the amount due, and the check is not paid, — 
 Held, that the action would not lie, without the return of the check 
 and a new demand. Smith v. Newland, 9 Hun, 553. 
 
 The action will not lie for a check after it has been presented to and 
 paid by the drawee, and returned as a voucher to the drawer. Smith 
 v. Neivland, 9 Hun, 553. 
 
 Property accidentally destroyed. — There is no liability where goods 
 came lawfully into defenuant's possession and were accidentally
 
 62 Jurisdiction am) General Powers. § 1, Subd. 10. 
 
 destroyed. Salt Springs X. H. v. Wheeler, 4S X. Y. 492. And see 
 Dexter v. Dexter, 56 N. Y. Super. 568. 
 
 Property out of the county. — Tins court has jurisdiction of an action 
 of claim and delivery unlawfully taken and detained in another county. 
 Jioi/d v. Howden, 3 Daly. 455; Luban v. Simaids, 46 App. Div. L92, 61 
 N. Y. Supp. 697; Barnett v. Selling, 3 Abb. N. C. 83; s. c, 9 Hun, 236; 
 affd., 70 N. Y. 492. 
 
 Sheriff; action against. — This court lias jurisdiction of actions against 
 the sheriff m recover property alleged to have been wrongfully seized 
 by him. Price v. Grant, 15 Daly, 436; s. c, 28 N. Y. 422, 7 X. Y. 
 Supp. !KI4 ; Stoutenburg v. Janscn, 9 Johns. 369. 
 
 Special property; value of the chattel. — In an action for a chattel, 
 where the plaintiff has a special property in the chattel, the value of 
 the special property is regarded as the value of the chattel for the 
 purpose of determining the jurisdiction of the court. Shea v. Smith, 
 12 Week. Dig. 252. 
 
 Surety may continue action. — A surety upon an undertaking in re- 
 plevin may prosecute the action brought by the principal after the 
 latter had abandoned it. Hoffman v. Steinau, 34 Hun, 239. 
 
 Tenants in common. — The action will not lie in favor of one tenant 
 in common of a chattel, against the other tenant and a purchaser from 
 him, although the plaintiff's cotenant has delivered the chattel to the 
 third person. Hudson v. Swan, 83 N. Y. 552, revg. s. c, 7 Abb. N. C. 
 324. 
 
 Value; special interest. — In an action for claim and delivery of per- 
 sonal property, the special interest of the plaintiff is regarded as the 
 value, so as to give jurisdiction. Shea v. Smith, 12 Week. Dig. 254. 
 
 Wife's property. — A wife living apart from her husband may. ;i tin- 
 demand and refusal, maintain the action to recover her personal prop- 
 erty, which remained in the husband's house when she left it. Howland 
 v. Howland, 20 Hun, 472. 
 
 A levy by a sheriff, holding an execution against a husband, upon the 
 wife's property, is such an act of dominion over it as will sustain re- 
 plevin, although there was no actual removal, and the sheriff claimed 
 to levy upon, and advertise only, the husband's interest in the property, 
 he having in fact no interest. Alvord v. Haynes, 13 Hun. 26. 
 
 A cartman who takes and delivers to the husband property of the 
 wife from the room occupied by them is liable to her in replevin. Mead 
 v. Jack, 16 Week. Dig. 403. 
 
 10. An action to foreclose a lien upon a chattel for a sum 
 of money, in any case where such a lien exists at the com- 
 mencement of the action and where the amount of the lien 
 does not exceed five hundred dollars.
 
 § 1, Subd. 10. Jurisdiction and General Powers. 03 
 
 Notes to section i, subdivision io. 
 
 By section 1285, subdivision 10, of the Consolidation Act (Laws 1882, 
 chap. 410), jurisdiction of an "action to foreclose a lien upon a chat- 
 tel " had been expressly given to the District Courts, but the provision 
 was omitted from the Charter of 1897, as amended in 1901. It seems 
 however that by sections 1737 and 3215 of the Code of Civil Procedure, 
 the District Courts and this court nevertheless had such jurisdiction. 
 Such jurisdiction is now expressly conferred by this subdivision. The 
 procedure in an " action to foreclose a lien on a chattel " are to be 
 found in sections 137 to 142. The provisions of this subdivision are 
 substantially reiterated in section 137. 
 
 Animals, wagon, etc., or harness; lien of bailee. — A person keeping 
 a livery-stable, or boarding-stable for animals, or pasturing or board- 
 ing one or more animals, or who in connection therewith keeps or 
 stores any wagon, truck, cart, carriage, vehicle, or harness, has a lien 
 dependent upon the possession upon each animal kept, pastured, or 
 boarded by him, and upon any wagon, truck, cart, carriage, vehicle, or 
 harness, of any kind or description, stored or kept, under an agreement 
 with the owner thereof, whether such owner be a, mortgagor remaining 
 in possession or otherwise, for the sum due him for the care, keeping, 
 boarding, or pasturing of the animal, or for the keeping or storing of 
 any wagon, truck, cart, carriage, vehicle, and harness, under the agree- 
 ment, and may detain the animal or wagon, truck, cart, carriage, 
 vehicle, and harness accordingly, until such sum is paid. Laws 1899, 
 chap. 465, p. 942. See Gotta v. Carr, 27 Misc. Rep. 245; Lessels v. 
 Farnsicorth, 13 Daly, 473; Gorman v. Williams, 26 Misc. Rep. 776. 
 
 Artisan's lien on personal property. — A person who makes, alters, 
 repairs, or in any way enhances the value of an article of personal 
 property, at the request, or with the consent of the owner, has a lien 
 on such article, while lawfully in possession thereof, for his reason- 
 able charges for the work done and materials furnished, and may retain 
 possession thereof until such charges are paid. Laws 1897, chap. 418, 
 § 70, an act in relation to liens, constituting chap. 49 of the General 
 Laws. O'Claire v. Hale, 35 App. Div. 77 ; Wiles Laundering Co. v. 
 Huhlo, 10.3 N. Y. 234. 
 
 Bailment; lien. — Plaintiff delivered certain carriages to defendant 
 to be repaired. When the repairs were partly done plaintiff demanded 
 their return in the condition they then were, but made no tender of 
 the amount due for the repairs already made. This demand was 
 refused, as olaintiff and his witness testify, unless a previous bill was 
 paid, which was denied by one of the defendants and the testimony of 
 defendant's attorney who offered to deliver the carriage on payment 
 of the bill for services and material bestowed on them. Held, that a 
 decision in favor of defendants would not be disturbed. After the 
 demand the defendants completed the repairs. Held, that this work
 
 64 Jurisdiction and General Powers. § 1, Subd. 10. 
 
 was authorized by the contract entered into on the delivery of the 
 carriages to them, and that defendants had a Lien on the carriages tor 
 such repairs. Shailer Recr. \. Corbett et al., 40 X. Y. St. Rep. 786. 
 
 Boarding-house keeper; who is? — The statute is only designed to 
 protect a class of persons which makes the keeping of boarders a busi- 
 ness or calling, in whole or in part. It is not every private house where 
 one or more boarders are kept occasionally only, and upon special con- 
 siderations. It i- a gi*asi-public house, where boarders are generally 
 and habitually kept, and whicn is held such, and known as a place of 
 entertainment, of that kind. The boarding-house-keeper is n t hound 
 to receive any one, except upon special contract. A housekeeper, not 
 accustomed to take persons to board, receiving a person and his family 
 into his house for an indefinite time, with the understanding that lie 
 wa- to be paid for the board and accommodations, is not a boarding- 
 house-keeper allowing a detention of the baggage and effects of boarders 
 for board due. Cody v. McDowell, I Lans. 4S4. 
 
 Extent and limit of boarding-house keeper's lien. — The intent of the 
 statute, giving to the keeper of a boarding-house a lien to the extent 
 of the board due, is to give them the same lien which an innkeeper has 
 upon the effects of a guest, without reference to the character of the 
 guests, whether they are transient or permanent boarders. Stewart 
 V. McCready, 24 How. Pr. G2. And see Cady v. McDowell, 1 Lans. 4S4. 
 
 It extends to property of a guest which is exempt from levy and 
 sale on execution. Thorn v. Whitbeck, 11 Misc. Rep. 175. 
 
 The limit of the lien is for board actually due, and not including 
 board to become due under an arrangement to board in future, nor can 
 it be extended to any other indebtedness, nor to any demand not due at 
 the time of the detention. Shafer v. Guest, 35 How. Pr. 184; s. c, 6 
 Robt. 264. 
 
 Boarding-house keeper not to have lien when he had notice that prop- 
 erty was not the property of the guest. Laws 1899, chap. 380, p. 834. 
 
 Wife's wearing apparel, or separate property, cannot be detained by 
 a boarding-house-keeper for board owing by the husband for herself 
 and family. McTlvaine v. Hilton, 7 Hun, 594. 
 
 Book accountants employed to examine lx>oks of account have no 
 lien upon the books for their services. Scott Shoe Machinery Co. v. 
 Broaker, 35 Misc. Rep. 382. 
 
 Carriages and other vehicles when sold conditionally are exempt from 
 lien. Laws 1898, chap. 354, p. 1019, amending Laws 1897, chap. 418, 
 § 115. 
 
 Choses in action. — This subdivision is taken from sections 1737, 3215, 
 subdivision 1 of the Code of Civil Procedure, and section 1285, sub- 
 division 10, Consolidation Act, and applies to chattels and not to mere 
 choses in action. Matter of Wilson, 2 Civ. Proc. Rep. 343. 
 
 Common law liens, embracing, " 1. A brief review of the common law 
 on the subject of liens; 2. Liens of various bailees under the common
 
 § 1. Sunn. 10. Jurisdiction and General Powers. G5 
 
 law; .3. Lion of the warehouseman and the wharfinger's lien before 
 the statute," will be found in Stallman v. Kimberly, 23 Abb. N. C. 245. 
 See also Buffalo Dry Dock Co. v. Ladenburg, 10 App. Div. 3'-). 
 
 When a lien exists. — A lien exists either by express agreement of 
 the parties, or is implied from their mode of dealing, or it follows 
 from the established usage of trade, or it is founded upon the im- 
 memorial recognition by the common law of a right to it in special 
 com's. It semis the lien is recognized in the case of every bailee for hire 
 who takes property in the way of his trade and occupation, and by his 
 labor and skill imparts additional value to it. Trust v. Pirsson, 1 Hilt. 
 202. 
 
 When a lien dees net exist. — If a special agreement for a particular 
 mode of payment, or for payment at a future period, is made in any 
 case in which a right of lien would otherwise be implied, the lien dots 
 not exist. If such an agreement is made before the claimant acquires 
 possession of the chattel no lien is created; if made thereafter it is a 
 waiver of the lien. Trust v. Pirsson, 1 Hilt. 292. 
 
 When lien is and is not defeated. — As between the debtor and creditor 
 however the lien is not defeated by loss of possession, unless the 
 creditor voluntarily parted with possession, intending to abandon the 
 lien. Allen v.,Spencer, 1 Edm. 117; Kafka v. Levensohn, IS Misc. Rep. 
 202, 41 N. Y. Supp. 368. 
 
 Ccnditicnal sales; exemption from lien law. — By Laws 189S, chap. 
 354, p. 1019, amending section 115 of the Lien Law of 1S9" (chap. 418), 
 conditional sales of household goods, law books, law blanks, and law 
 office supplies, pianos, organs, safes, scales, butcher's and meat market 
 tools and fixtures, wood-cutting machinery, engines, dynamos, boilers, 
 portable furnaces, boilers for heating purposes, threshing machines, 
 horse powers, mowing machines, reapers, harvesters, graindrills and 
 attachments, dairy sizes of centrifugal cream separators, coaches, 
 hearses, carriages, buggies, phaetons, and other vehicles, bicycles, tri- 
 cycles, and other devices for locomotion by human power, if the con- 
 tract for the sale thereof is executed in duplicate, and one duplicate 
 delivered to the purchaser, do not apply to the Lien Law, and are 
 exempt therefrom. 
 
 Discharge of lien. — If the mechanic makes agreement with owner 
 of chattel upon which he has a lien for services to look to a third party 
 for his pay, the lien is discharged. Bailey v. Adams, 14 Wend. 201. 
 Compare Fielding v. Mills, 2 Bcsw. 489; Gorman v. Williams, 26 Misc. 
 Eep. 77G. 
 
 A tender of the debt, and demand for the delivery of the chattel, dis- 
 charges the lien thereon. La Motte v. Archer, 4 E. D. Smith, 46. 
 Compare Everett v. Coffin, 6 Wend. 603; Hoyt v. Sprague, 61 Barb. 
 497. 
 
 5
 
 66 Jurisdiction and General Powers. § 1, Subd. 10. 
 
 Hotel, inn, boarding and lodging-house keepers; liens. — A keeper of 
 a hotel, inn, boarding-house, or lodging-house, except an emigrant 
 lodging-house, has a lien upon, while in possession, and may detain 
 the baggage, and other property brought upon their premises by a 
 guest, boarder, or lodger, for the proper charges due from him, on 
 account of his accommodation, board, and lodging, and such extras as 
 are furnished at his request. If the keeper of such hotel, inn, board- 
 ing, or lodging-house knew that the property so brought upon his 
 premises was not, when brought, legally in possession of such guest,, 
 boarder, or lodger, or had notice that such property was not then the 
 property of such guest, boarder or lodger, a lien therefor does not 
 exist. Laws 1899, chap. 380, p. 834. See Grinnell v. Cook, 3 Hill, 
 485; Smith v. Keyes, 2 T. & C. G50. 
 
 Law books, law blanks and law office supplies when sold conditionally 
 was exempt from a lien. Laws 1898, chap. 354, p. 1019, amending 
 Lien Law of 1897 (chap. 418), § 115. 
 
 Livery-stable-keeper's lien; agreement.— Under an agreement be- 
 tween plaintiffs and defendant that the latter should take care of 
 plaintiff's horse, wagon, and harness, and they were to have possession 
 and use of the same in their business every day, defendant boarded the 
 horse, and cared for the property. Held, that defendant had no lien 
 for the value of the keeping. Cotta v. Carr, 27 Misc. Rep. 545. 
 
 The bailee of a horse to use for its keeping, made an arrangement 
 with a livery-stable-keeper without authority of the owner for the 
 keeping of this and) another horse, and thereafter agreed that the stable- 
 keeper should retain the horse so bailed, as security for his charges. 
 Held, that the owner was entitled to the possession of the horse. 
 Eassett v. Sanborn, 62 App. Div. 588. 
 
 It seems that the livery-stable-keeper had no lien under Laws 1897, 
 chap. 418, section 74, for the reason the keeping was not furnished 
 " under an agreement with the owner.'' Hassett v. Sanborn, 62 App. 
 Div. 588. 
 
 Id.; discharge. — It seems that acceptance of the liability of a new 
 owner, ignorant of the existence of a lien, and turning over the prop- 
 erty to his use, discharges the lien of a stable-keeper on a horse and. 
 wagon, though they remain in his stable. Gorman v. Williams, 26 
 Misc. Rep. 776. 
 
 It seems that acceptance of the note of a third person for the lia- 
 bility waives the stable-keeper's lien. Gorman v. Williams, 26 Misc. 
 Rep. 776. 
 
 Id.; extent of lien; tender. — The lien of a livery-stable-keeper does 
 not extend to secure other claims than those on the property in his 
 custody; and on being called upon by an assignee of the property, who 
 desires to pay the lien, to state the amount due, if he demands a sum 
 largely in excess thereof, not disclosing the amount of the lien, the
 
 § 1, Subd. 10. Jurisdiction and General Powers. 07 
 
 assignee is not obliged to make a tender of it before bringing suit for 
 the recovery of the property. Allen v. Corby, 59 App. Div. 1. 
 
 Id.; notice. — Where plaintiff claimed a stable-keeper's lien on account 
 of a horse bought from a third person by defendant but which she had 
 notified plaintiff she did not own, having annulled the sale, and he 
 must look to the seller for his pay, and plaintiff sought to enforce 
 his lien against three horses, including two which defendant owned, — 
 //(/(/, that the notice imposed upon the stable-keeper the duty of enforc- 
 ing his lien within a reasonable time, or otherwise asserting his right, 
 and it was error to charge that the notice did not terminate defendant's 
 liability for the keep of the horse. Mason Stable Co. v. Lewis, 10 Misc. 
 Rep. 359, 74 X. Y. St. Rep. 379, 38 N. Y. Supp. 82. 
 
 While possession of the animal by the livery-stable-keeper is not 
 essential tc his security where it has been removed from his stable by 
 fraud, he must give the statutory written notice to the owner required, 
 within a reasonable time, in order to perfect his inchoate lien, and with- 
 out such notice he cannot regain possession of the animal by replevin. 
 Kline v. Green, 83 Hun, 190; s. c, 64 N. Y. St. Rep. 153, 31 N. Y. Supp. 
 599. 
 
 Notice so given relates back to the time of a demand made upon him 
 by the owner for the animal. Kline v. Green, 83 Hun, 190; s. c, 64 
 N. Y. St. Rep. 153, 31 X. Y. Supp. 599. 
 
 Monuments, tombstones. — The lien which was given upon a tomb- 
 stone for the unpaid price by Laws 1888, chap. 543, has been declared 
 unconstitutional. Brooks v. Tayntor, 17 Misc. Rep. 534, 40 N. Y. Supp. 
 445. And said statute has been repealed by Laws 1897, chap. 418. 
 
 Duration of such liens. — The statute relating to liens on monuments 
 and cemetery structures does not contain any provision for extending 
 the duration of such liens, as may be done by judicial order in the case 
 of mechanics' liens, by virtue of Laws 1897, chap. 418, § 16; the 
 notice must be filed with the superintendent or person in charge of 
 the cemetery, and within one year after the agreed price became due, 
 and cannot be thereafter filed nunc pro tunc under an order of the 
 court. Adler v. Lumley, 46 App. Div. 229. 
 
 Newspaper. — An agent who made a loan to a newspaper, and was to 
 solicit advertisements for it, and repay himself out of the proceeds to 
 a specified amount each month, — Held, to have no lien upon the pro- 
 ceeds as against a receiver of the corporation. Commercial Publishing 
 Co. v. Beckwith, 36 App. Div. 629. 
 
 Piano or organ sold conditionally is exempt from lien. Laws 1898, 
 chap. 354, p. 1019, amending Lien Law of 1897, chap. 418, § 115. 
 
 Private storage. — There is no lien in favor of one giving private 
 storage of goods. Merritt v. Peirano, 10 App. Div. 563: s. c, 42 N. Y. 
 Supp. 97. See however The Buffalo Dry Dock Co. v. Ladenburg, 19 
 App. Div. 35.
 
 (j8 Jurisdiction and General Powers. § 1, Subd. 11. 
 
 Safe sold conditionally is exempt from lion. Laws 1898, chap. 354, 
 p. 1019, amending Lien Law of 1897, chap. 41S, § 115. 
 
 Sales of property to satisfy liens. — -As to the notice of sale required 
 to he given to the owner, and the advertisement of the sale, see Laws 
 1899, chap. 369, p. 793. 
 
 Stallions; liens for service of. — Amended Laws 1902, chap. 351. 
 
 Statutory liens. — General Lien Law of 1897, chap. 418, as amended 
 by Law- L89S, chap. 354, and Laws 1899, chap. 369, SS 81 and 82, 
 p. 793, chap. 380, § 71, p. 834, and chap. 465, § 74, p. 942, are acts in 
 relation to all liens now allowed by statutory law upon chattels. 
 
 Storage enforcement. — The bailee of household good- tor storage has 
 nc right to sell the same for unpaid charges without notice to the 
 owner of the goods, and the requirements of Laws 1899, chap. 369, 
 amending Laws 1897, chap. 418, § 81, must be complied with. Robin- 
 son v. Wappans, 34 Misc. Rep. 199. 
 
 Warehouse liens. — See Laws 1897, chap. 418, § 73. (See Sage v. 
 Gittner, 11 Barb. 120; Stallman v. Kimberly, 53 Hun, 531; Bauman 
 v. Jefferson, 4 Misc. Rep. 147; The Buffalo Dry Dock Co. v. Ladenburg, 
 19 App. Div. 35. 
 
 Warehouseman. — A mere volunteer, under no obligation as a ware- 
 houseman, who receives the temporary custody of chattels, has no lien 
 upon them for storage, in the absence of any agreement, though he may 
 be entitled to compensation for caring for them, as upon a quantum 
 meruit. Lyungstrandt v. William Haaker Co., 16 Misc. Rep. 387, 73 
 X. Y. St. Rep. 808, 38 N. Y. Supp. 129. 
 
 Workingman's lien. — Workman repairing chattel necessary for its 
 preservation, has such a lien for his charges that he may retain posses- 
 sion of the chattel, even against a prior mortgagee. Scott v. Delahunt, 
 5 Lans. 372. 
 
 Unless the property has been enhanced in value by the work done, no 
 lien can be acquired thereon, unless by special contract. De Vinne v. 
 h'ianhard, 9 Daly, 406. 
 
 A workman employed to take away materials and manufacture cloth- 
 ing from them has a lien upon them for his work, and may detain them 
 until the lien is discharged. Kafka v. Levensohn, 18 Misc. Rep. 202, 41 
 X. Y. Supp. 368. 
 
 Where part of the goods are stolen from him without his fault, his 
 lien attaches to the residue in his hands for the work done thereon. 
 Kafka v. Levensohn, 18 Misc. Rep. 202, 41 N. Y. Supp. 368. 
 
 11. An action to enforce a mechanic's lien on real prop- 
 erty in which the court shall have power to render judgment 
 for the sum due, and to declare the amount a valid lien against 
 the interest of the defendant in the property described in the
 
 § 1, Sued. 11. Jurisdiction and General Powers. 69 
 
 complaint, at the time of the filing of the lien, where the 
 amount does not exceed five hundred dollars, but said court 
 cannot render judgment for the foreclosure and sale of the 
 property. 
 
 Notes to section i, subdivision n. 
 
 This subdivision was not contained in the Charter of 1897, as amended 
 in 1901, but this court had jurisdiction to enforce mechanics' liens 
 as provided by Laws 1897, chap. 419, which was an amendment to 
 the Code of Civil Procedure, by adding a new chapter and also sections 
 3399, 3404 to 3414. 
 
 There are no provisions for any particular procedure to enforce a 
 mechanic's lien prescribed in this act. Formerly the return day in 
 such a case was not less than twelve nor more than twenty days, and 
 service by publication was provided for by Code Civ. Proc, §§ 3404, 
 3405, and 340G, which sections were addled to said Code by Laws 1897, 
 chap. 419, p. 547, and remain unrepealed, but they have been doubtless 
 superseded by the provisions of this act, sections 32, 33, 34, 37, and 
 others leaving the practice in such action the same as in any other 
 action in this court. 
 
 Proceedings for the enforcement of mechanics' liens on real property 
 are to be found in Code Civ. Proc, tit. Ill, added by Laws 1897, 
 chap. 419, §§ 3398 to 3419, and include " Action in a court not of 
 record." 
 
 Complaint in mechanic's lien action; requisites of, are prescribed in 
 Code Civ. Proc, § 3404, added to said Code by Laws 1897, chap. 419, 
 p. 546, left unrepealed by this act. These requisites are as follows : 
 The complaint must set forth substantially the facts contained in 
 the notice of lien, and the substance of the agreement under which 
 the labor was performed or the materials were furnished. 
 
 Costs and disbursements same as allowed in other actions in this 
 court. Code Civ. Proc, § 3411. 
 
 Equitable action. — This court has jurisdiction. The provisions of 
 the Mechanics' Lien Law in courts not of record regulating the pro- 
 cedure are entirely different from that of this court. In this court 
 there can only be recovery of a money judgment and for the issuing 
 of &n execution to sell the title and interest of the owner in the 
 premises, and not the property itself. Kotzen v. Nathanson, 33 Misc. 
 Rep. 299, followed in Eadie v. Waldron, 64 App. Div. 424. 
 
 Judgment; execution; sale. — Although this court cannot render judg- 
 ment for the foreclosure and sale of the property, it can sell the right, 
 title, and interest of the owner in the premises, upon which the lien 
 set forth in the complaint existed at the time of filing the notice of 
 lien. Code Civ. Proc, § 3408. 
 
 Trial is the same as other issues triable in this court. Code Civ. 
 Proc, § 3407.
 
 70 Jurisdiction and General Powers. § 1, Sued. 12. 
 
 12. A summary proceeding under title two of chapter 
 seventeen of the code of civil procedure to recover possession 
 of real property which, or a portion of which, is situated 
 within the district wherein the application for such recovery 
 is made. Such proceeding may be tried with or without a 
 jury, which may be demanded by any party thereto. The 
 court in either case has power upon application, to allow the 
 petition or answer to be amended, at any time, if substantial 
 justice will be promoted thereby and the rights of the parties 
 have not been impaired by reason of the defective pleading, 
 to direct or set aside a verdict, and to grant or deny a motion 
 for a new trial, and an appeal may be taken therefrom. 
 
 Notes to section i, subdivision 12. 
 
 This subdivision is the same as section 12 in the Charter of 1897. as 
 amended in 1901, with the eddition of powers to set aside a verdict, or 
 to grant or deny a new trial, and allowing an appeal. It was formerly 
 a part of section 1357 of the Consolidation Act (Laws 1882, chap. 410), 
 which was superseded by subdivision 12 of section 1364 of the Charter 
 of 1897, and was continued in -force in and by sections 1369 and 1428 
 of said Charter. 
 
 Sections 1357, 1358, 1359, and 1360 of the Consolidation Act relating 
 to " Summary Proceedings," were all repealed by this act, and sub- 
 division 12 of section 1 thereof enacted in their place and stead. 
 
 By chapter 17 of the Code of Civil Procedure, entitled " Certain 
 Special Proceedings Instituted without Writ," these proceedings are 
 " Special Proceedings." See §§ 3334 and 3343, subd. 20, and § 1688 of 
 said Code. 
 
 Title II of chapter 17 of the Code of Civil Procedure, mentioned in 
 this section is entitled " Summary Proceedings to Recover the Posses- 
 sion of Real Property," and is embraced within section 2231 to section 
 2265, both inclusive. These sections contain the law and practice 
 relating to summary proceedings for nonpayment of rent and for hold- 
 ing over after a tenant's term expires; to the removal of a person 
 holding over after land has been sold; to the removal of a person 
 occupying and using property as a bawdy-house or house of assignation 
 for lewd persons, and to forcible entry and detainer proceedings. 
 
 The law and practice in these "Special Proceedings" requires a 
 work in itself, especially as it is composed of an entire title, contain- 
 ing thirty-five sections of the Code of Civil Procedure. We have there- 
 fore deemed it, impracticable to make further provisions in this as in 
 former editions, leaving the practitioner to " McAdam's Landlord and 
 Tenant," vol. ''>. '"Summary Proceedings to Recover the Possession of
 
 § 1, Subd. 13. Jurisdiction and General Powers. 71 
 
 Lands and Tenements within the State of New York, with Forms; " and 
 to his preceding works on this subject, which are a lasting monument 
 to the legal learning and ability of this gifted and lamented lawyer 
 and judge. 
 
 Court may direct verdict; when. See § 252. 
 
 Motion to set aside verdict, or vacate or amend judgment. See § 254. 
 
 13. An action for damages for fraud or deceit where the 
 damages claimed do not exceed five hundred dollars. 
 
 Notes to section i, subdivision 13. 
 
 No explanatory or other reference is made to this subdivision by 
 the commissioners who drew this act and reported it to the Legislature. 
 It is the same as subdivision 11 of the Charter of 1897, as amended in 
 1901, with a very important exception. The former subdivision limited 
 the' action to fraud or deceit about " personal property." which limita- 
 tion is eliminated from the present action, thus leaving it applicable 
 to an action for fraud and deceit about real property. 
 
 Prior to the Charter of 1897, section 13(34, subdivision 11. the Dis- 
 trict Courts had no jurisdiction in an action for fraud or deceit. 
 Vide, § 1285, subds. 1 to 13, Consolidation Act (Laws 1882, chap. 410). 
 
 Agent and principal are jointly liable for the agent's deceit and 
 fraudulent representations. Cunningham v. Wathen, 14 App. Div. 553. 
 
 Checks drawn without funds to meet them. — One who draws a check 
 on a bank where he has no funds to meet it is guilty of a fraud on the 
 person who parts with money on the faith thereof. Sieling v. Clark, 
 18 Misc. Rep. 464. 
 
 Id.; withdrawal of deposit. — If the drawer of a check withdraws 
 funds which he had in the drawee's hands when he drew the check, and 
 thereby defeats its payment, he commits a fraud on the holder. Sieling 
 v. Clark, 18 Misc. Rep. 464. 
 
 Deceit; when action lies. — An action for deceit will not lie against 
 a buyer of goods who has falsely stated his financial condition to a 
 mercantile agency, at the suit of the seller who relied upon the rating 
 given to the buyer by the agency, unless the false statements themselves 
 were in some way communicated to the seller and he made the sale 
 relying upon them. Tindle v. Birkett, 57 App. Div. 450. 
 
 If a firm of buyers represented the facts stated by them to be true 
 to their personal knowledge, with a view of inducing the sellers to 
 believe them, and they were believed, relied upon, and acted upon by 
 the sellers, and the statements were not true, the buyers are chargeable 
 with deceit precisely as if the statements were made with knowledge 
 of their falsity. Schoeman v. Chamberlin, 55 App. Div. 351. 
 
 Elements of fraud. — The elements of an action for fraud are repre- 
 sentations of falsity, scienter, deception, and injury. Wessels v. Carr y 
 15 App. Div. 360.
 
 72 Jurisdiction and General Powers. § 1, Subd. 13. 
 
 Evidence of fraud. — In an action to recover goods whose sale was 
 alleged to have been procured by false representations of solvency, 
 evidence of transactions of the vendees with their creditors before and 
 after the sale by plaintiffs and up to the time of failure is admissible to 
 show the existence of a general scheme of fraud. Hummer v. Oppcn- 
 heim. 19 Misc. Rep. 605, 606. 
 
 False representations; what must he shown. — In an action for an 
 installment of rent, defendant interposed a counterclaim alleging that 
 plaintiff, to induce defendant to make the lease at the rental of 
 $12,000 a year, represented that the previous tenant had paid that 
 sum; that such representations were false, and were known to plaintiff 
 to be false; that defendant relied upon them and was deceived by them, 
 and asked that the lease shall be canceled and delivered up. Held, 
 that to entitle defendant to recover upon its counterclaim it was neces- 
 sary for it to establish the representations made; their falsity; the 
 knowledge of their falsity; the intention to deceive, and the fact that 
 the defendant relied upon them and that it suffered damage thereby. 
 Powell v. Linde Co., 58 App. Div. 2G1, 68 N. Y. Supp. 1070; appeal 
 dismissed in 167 N. Y. 617; Brackett v. Griswold, 112 N. Y. 454. See 
 also Chisholm v. Eisenhuth, 69 App. Div. 134. 
 
 Misrepresentation. — A misrepresentation to become the basis of 
 fraud must be of an existing fact, and not a promise. Wheeler v. Mow- 
 ers, 16 Misc. Rep. 143; s. c", 38 N. Y. Supp. 950. 
 
 A " misrepresentation with intent to deceive " is the equivalent of 
 actual fraud, and a mistake or innocent misrepresentation is enough 
 to justify a rescission of the contract made in reliance upon it. Foster 
 v. Wilhusen, 14 Misc. Rep. 520; s. c., 70 N. Y. St. Rep. 701, 35 N. Y. 
 Supp. 1083. 
 
 Promise. — The failure on the part of a lessor to make promised im- 
 provements is not a fraud. Lynch v. Sauer, 16 Misc. Rep. 1 ; s. e., 73 
 N. Y. St. Rep. 269, 37 N. Y. Supp. 666. 
 
 Proof of fraud. — A charge of fraud in a civil action, although in the 
 nature of a crime, need not be proved beyond a reasonable doubt, but 
 may be established by facts necessarily tending to establish probability 
 of guilt. Summers v. Oppenheim, 19 Misc. Rep. 605. 
 
 A person charged with making false representations, who admits that 
 the representations charged to have been made were made, is not bound 
 to prove them to be true. The fact that statements are made by one 
 party and assented to by the other, and that both parties are mistaken, 
 does not establish an intent to falsify on the part of the party making 
 the statements, especially where there are an estimate of the cost of 
 Avork to be done. Sterling v. Boll, 10 App. Div. 290. 
 
 False representations as to the incumbrances upon goods sold cannot 
 be proved by testimony of witness as to statements as to indebted- 
 ness made to him by the bookkeeper of the alleged creditor. Gage v. 
 Peetsch, 19 Misc. Rep. 369.
 
 § 1, Subd. 14. Jurisdiction and General Powers. 73 
 
 Proof of knowledge. — A complaint alleging that to induce plaintiff 
 to purchase a horse defendant falsely and fraudulently represented it 
 worth $120, and warranted it sound and free from disease; that it 
 was not sound and not worth that price, hut had a disease well known 
 to defendant, is an action for deceit, and the defendant's knowledge 
 of the alleged unsoundness must be proved. A recovery cannot be had 
 without such proof, by construing the complaint as one for a false 
 warranty. Moore v. Noble, 36 How. Pr. 385; s. c, 53 Barb. 425. 
 
 Relation of parties. — The presumption of undue influence, or unfair- 
 ness arising from the confidential relations of the parties to a con- 
 tract, does not arise from the ordinary and friendly relations between 
 relatives intimately associated in business affairs. The question as 
 to parties so situated is one of fact depending upon the circumstances 
 in each case. Doheny v. Lacy, 1G8 N. Y. 213, 61 N. E. 255, affg. 42 
 App. Div. 218. 
 
 Remedies against fraud. — A vendee upon discovery of a fraud in the 
 sale may elect to cancel the contract and recover back the purchase 
 price, or the value of the property taken or lost to him by reason of 
 the alleged fraud. Gage v. Peetsch, 19 Misc. Pep. 369. 
 
 A person who has been induced by fraudulent representations to 
 become the purchaser of property has, upon discovery of the fraud, 
 three remedies open to him. First, he may rescind the contract abso- 
 lutely and sue to recover the consideration, in which case he must 
 first restore or offer to restore the property; second, he may bring 
 action to rescind; third, he may retain what he has received and bring 
 an action at law to recover the damages sustained, in which case the 
 measure of his recovery is the difference between the value of the article 
 sold and what it should be according to the representations. Gros- 
 jean v. Galloicay, 64 App. Div. 547. 
 
 Fraudulent sale. — Where a sale upon credit is induced by repre- 
 sentations of the buyer, the seller has the right either to disaffirm 
 the sale and recover back the goods or to waive the tort and pro- 
 ceed at once for the purchase price, affirming the sale but disaffirm- 
 ing the credit, and an offer of the buyer to return the goods upon 
 receipt of his note given for the price will not bar the latter action. 
 Heiloronn v. Eerzog, 165 N. Y. 98, 58 N. E. 759. 
 
 14. An action to recover damages for a personal injury, 
 or for loss of services or for medical or other necessary ex- 
 penses occasioned thereby, or an injury to property, where 
 the sum claimed does not exceed five hundred dollars, ex- 
 cepting however, actions to recover damages for an assault, 
 battery, malicious prosecution, false imprisonment, libel, 
 slander, criminal conversation, seduction, or loss of society 
 of husband or wife.
 
 74 Jurisdiction and General Powers. § 1, Subd. 14. 
 
 Notes to section i, subdivision 14. 
 
 This subdivision enlarges the jurisdiction in actions for damages 
 for personal injuries to actions for loss of services, or for medical or 
 other necessary expenses occasioned thereby. 
 
 It is taken from subdivision 2 of section 130-4 of the Charter of 1897, 
 as amended in 1901, and is substantially similar except as stated. 
 Formerly it was subdivision 2 of section 1285 of the Consolidation 
 Act (Laws 1882, chap. 410), and as amended by the Charter of lS'JT, 
 the nonjurisdictional subdivision 2 of section 1280 of the Consolidation 
 Act was added to it. 
 
 Personal injury is denned by section 3343, subdivision 9 of the Code 
 of Civil Procedure, of all of which this court has not jurisdiction, ex- 
 cept of those meant by the last line, reading, " or other actionable 
 injury to the person, either of the plaintiff or of another." 
 
 Injury to property is denned by section 3343, subdivision 10 of the 
 Code of Civil Procedure: ''An ' injury to property' is an actionable act, 
 whereby the estate of another is lessened, other than a personal injury, 
 or the breach of a contract." 
 
 Abuse of horse. — In an action for damages for abuse of a horse, which 
 defendant hired, and returned next day in a dying condition, — Held, 
 that a direction of a verdict for defendant should be reversed. Whalen 
 v. .V. Y. d Htaten Island Electric Co., 03 App. Div. 015. 
 
 Careless driving. — The act of the driver of defendant's carriage, 
 standing on the west side of the street with the horses toward the 
 south, in suddenly turning so as to go north on the same side of the 
 street, instead of moving down and crossing over to the east side to 
 go north, and the conduct of plaintiff coming south on a bicycle at 
 the rate of five or six miles an hour, ringing his bell, and struck by the 
 pole of the carriage. Held to present question of fact for the jury. 
 Hill v. Moebus, 50 App. Div. 354. 
 
 Collision between car and vehicle. — Dismissal of the complaint in an 
 action for damages against a street railroad company, whose car ran 
 into plaintiff's wagon as he was attempting to cross the railroad track, 
 he having started to do so when the car was nearly a block away. 
 Held error. Ludecke v. Metropolitan Street Ry. Co.. 32 Misc. Rep. 035. 
 
 Contributory negligence. — Whether or not a plaintiff is guilty of con- 
 tributory negligence, as a general proposition, is a question of fact 
 to be determined by the jury, and it is only where it clearly appears 
 from the uncontradicted evidence that the plaintiff has by his own act 
 contributed to the injury he has received, that the court is justified 
 in determining that question as one of law. Cohen v. Metropolitan 
 Street Ry. Co., 03 App. Div. 105. 
 
 Crossing street. — A crirl thirteen years old. struck by a horse car as 
 she crossed an avenue after waiting for a covered wagon to pass, with- 
 out thereafter locking for the approach of a car though she had looked
 
 ■§ 1, Subd. 14. Jurisdiction and General Powers. 75 
 
 before the wagon passed, — Held not to appear free from contributory 
 negligence. Biederman v. Dry Dock, East Broadway, etc., R. R. Co., 54 
 App. Div. 291. 
 
 Falling bricks. — In an action brought by a tenant of property adja- 
 cent to defendant's, to recover for bodily injuries received from the 
 fall of bricks from defendant's chimney, on a part of the premises, 
 rented by him to another, into the tenant's yard, — Held, that a non- 
 suit was error, though there was evidence that plaintiff had previous 
 knowledge that the chimney was defective. Kaiser v. Washburn, 55 
 App. Div. 159. 
 
 Horse and wagon. — Defendant forcibly ran the plaintiff's horse and 
 wagon from the railroad track, breaking his wagon and seriously injur- 
 ing his horse. Held, that tne act was clearly unlawful, and gave the 
 plaintiff a right of action for his damages. Fettrich v. Dickenson, 22 
 How. Pr. 248. 
 
 Imputed negligence. — The degree of care required of one riding with a 
 driver over whom he has no express control, considered. Morris v. 
 Metropolitan Street Ry. Co., 63 App. Div. 78. 
 
 Injury to property and injury to person, recovery upon one not a bar 
 to recovery en the other. — Recovery for an injury to property not a bar 
 to another action for injury to the person caused by the same act 
 of negligence. An injury to tne person and an injury to property, 
 although resulting from the same tortious act, constitute different 
 causes ox action, and a judgment for damages to property recovered 
 in one court, and the satisfaction thereof, is not a bar to the main- 
 tenance of an action for an injury to the person, in another court, 
 arising from the same act. Reilly v. Sicilian Asphalt Paving Co., 170 
 N. Y. 40, revg. s. c. 31 App. Div. 302. 
 
 Jurisdiction. — Where an action for wrongful injury to personal 
 property is commenced by the service of a summons, accompanied by 
 an order of arrest, jurisdiction does not depend upon the sufficiency 
 of the affidavit upon which the order of arrest was made, but upon 
 the service of the summons, and it still remains though the order was 
 set aside as improperly granted. McNeary v. Chase, 30 Hun, 491. 
 
 Landlord and tenant ; agreement. — An action for damages for per- 
 sonal injuries by a tenant against his landlord cannot arise out of a 
 breach of the landlord's agreement to make repairs. Folsom v. Parker, 
 31 Misc. Rep. 348, 64 N. Y. Supp. 263. 
 
 Id.; ceiling; falling of, in tenant's apartment; notice of defect; 
 promise to repair. — Landlords are not, in the absence of an agreement 
 to repair, liable to a tenant for the defective condition of premises 
 let to the tenant for his exclusive use, unless the defect is such that 
 it amounts to a nuisance at the time when the lease was made. A 
 child of a monthly tenant, living with his father, cannot maintain 
 an action for negligence against the landlords of premises for injuries 
 received from the fall of a portion of the ceiling in the apartments of
 
 76 .1 1 Kisi.icTioN and General Powees. § 1, Subd. 14. 
 
 the father, and this, although the defect was brought to the attention 
 of the landlords, and they, through their janitress of the building, 
 promised to repair it, as the damages are too remote. Miller v. 
 Rinaldo, -\ .Misc. Rep. 470, revg. s. c, 20 Misc. Rep. 714. 
 
 A landlord who has not covenanted to make repairs is not liable to a 
 tenant, as for a breach of contract for injuries which she received 
 from the fall of the ceiling of a sleeping apartment, which was under 
 her exclusive control ; and where the tenant remains in occupation, to 
 her personal injury, after knowledge of the defect, after complaint 
 made to the agent of the premises ( who reassures her as to the danger, 
 and promises to have the ceiling fixed, and after her subsequent refusal 
 to pay him rent because of the danger, her contributory negligence bars, 
 her right to recover of the landlord damages for her injuries, under 
 allegations that he has been negligent. Schwartz v. Apple, 21 Misc. 
 Rep. 513. 
 
 In an action against a landlord, brought by the wife of a tenant, for 
 injuries received from the fall of a ceiling, where it was not shown that 
 defendant had agreed to make repairs, or knew or had reason to know 
 the ceiling was unsafe, — Held, that a recovery could not be had. 
 Kennedy v. Fay, 31 Misc. Rep. 776, 65 N. Y. Supp. 202. 
 
 Id.; water. — Damage sustained from the leaking of water pipes- 
 must be borne by the tenant, where the landlord does not covenant t6 
 repair, and the lease exempts him from such damage. Sown v. Weiss- 
 man, 29 Misc. Rep. 622, 61 N. Y. Supp. 78. 
 
 Medical expenses. — In an action for bodily injuries, plaintiff may 
 prove his medical expenses under an allegation that he " was put, and 
 will still be put, to much expense in the treatment of his said injuries.'' 
 McC ready v. Staten Island R. R. Co., 51 App. Div. 338, 64 X. Y. Supp. 
 996. 
 
 Negligence; railroad; assault and battery. — While this court has no 
 jurisdiction in an action for assault and battery, it has jurisdiction 
 in an action to recover damages for personal injuries growing out of 
 defendant's (railroad company) neglect to fulfill the duty of protection 
 which ic owes to its passengers. Hart v. Met. R. R. Co., 65 App. Div. 
 493. 
 
 The rule that it is negligence for a person to attempt to cross a public 
 thoroughfare ahead of vehicles of any kind, upon a miscalculation of 
 injury if such attempt be made, considered. Johnson v. Rochester Ry. 
 Co., 61 App. Div. 12. 
 
 Dumb-waiter. — The use. by a Aendor of ice, of a dumb-waiter in an 
 apartment-house, that he knew to be in a dangerous condition. — Held to 
 be contributory negligence. McCuire v. Board, 58 App. Div. 388. 
 
 Elevator. — The lessee of a building, who subleases to various tenants 
 and maintains a freight elevator for their common use. is to exercise 
 reasonable care to see that the elevator is safe for the use to which
 
 § 1, Subd. 14. Jurisdiction axd General Powers. 77 
 
 it is to be applied, and owes his duty to an expressman engaged in 
 the business of a tenant. Grifhahn v. Krcizer, 62 App. Div. 413. 
 
 Excavation unguarded. — Verdict for plaintiff in an action for dam- 
 ages against a street railroad company and its contractor, for injuries 
 received by falling into a hole in the street, four or five feet outside 
 the railroad track, set aside for failure of proof that the condition of 
 the street arose from any act of either of the defendants, though they 
 had previously been engaged in work along the line of the road. Moss 
 v. Crimmins, 51 App. Div. 587. 
 
 Exploding siphon. — Explosion of seltzer water sold by defendants 
 to plaintiff, who was injured in consequence of the explosion, — Held to 
 afford no cause of action against defendants therefor. Glaser v. Heitz, 
 35 Misc. Rep. 341. 
 
 A physician who undertakes the treatment of a patient is bound to 
 exercise not only the skill required, but also care and attention in 
 attending his patient until he notifies the patient that his professional 
 relations are terminated, or he is himself discharged, and he is liable 
 in damages to a patient whom he leaves after setting his fractured 
 arm, and does not attend upon again, or provide attendance for, until 
 after the fracture has improperly healed. Gerken v. Plimpton, 62 App. 
 Div. 35. 
 
 Protection of person on premises of another. — The presence of a 
 mischievous human being on the premises may constitute the danger 
 against which the law requires of the occupant reasonable care to pro- 
 tect his invitee. A customer in a store is there by invitation of the 
 merchant, who owes him the duty of reasonable care to secure him 
 against injury, as well from the misconduct of the merchant's em- 
 ployees as from the dangerous condition of his premises, and for 
 breach of the duty with consequent injury the customer may maintain 
 an action for negligence against the merchant. Suinarton v. he 
 Boutillier, 7 Misc. Rep. 639. 
 
 Roof. — A landlord, required under the lease to repair the roof of the 
 demised premises, — Held liable to the tenant for damage caused by 
 water admitted through leaks after insufficient repairs. Coleman v. 
 Central Trust Co., 25 Misc. Rep. 295, 54 N. Y. Supp. 561. 
 
 A landlord who undertakes to put a new roof upon an apartment- 
 house, and while the work is in progress suffers the roof to be in such 
 a condition that the property of tenants is injured by a rainstorm, is 
 liable in damages, though he employed an independent contractor to 
 do the work. O'Rourke v. Feist, 42 App. Div. 136, 59 N. Y. Supp. 157. 
 
 Servants; negligence of. — Damages may be recovered for personal 
 injuries, such as those caused by negligence of one of defendant's 
 servants. Coulter v. The American Merchants' Union Ex. Co., 56 N. Y. 
 585, revg. s. c, 5 Lans. 67. 
 
 Stopping runaway horse. — It is common knowledge that in a thickly- 
 populated city there is always danger to life and property from a run-
 
 78 Jurisdiction; General Powers § 1, Subds. 15, 1G. 
 
 away animal, and those who endeavor to stop it, even in the absence 
 of any immediate pending danger, may not be charged with con- 
 tributory negligence unless their act can be characterized as rash and 
 reckless. If such act would have been performed by a person exercising 
 reasonable care and prudence, measured by the circumstances, it is 
 not negligence as matter of law and a case is presented for the jury. 
 Manthey as Admr. v. Rauenbeuhler, 71 App. Div. 173. 
 
 A visitor to an apartment-house is not justified, unless under some 
 special stress of circumstances, in proceeding through a hallway with 
 which he is unfamiliar, when it is so dark that he is unable to see 
 where he is going or with what obstruction he may meet. Brugher v. 
 Buchtenkirch, 167 N. Y. 153, GO N. E. 420, revg. 39 App. Div. 502. 
 
 15. To issue or vacate a requisition to replevy, a warrant 
 of attachment, or an order of arrest ; or grant or vacate a 
 stay of execution, or of proceedings, within the limitations 
 provided in this act. But such stay shall not exceed five days. 
 
 Notes to section i, subdivision 15. 
 
 This subdivision is new under the head of jurisdiction, the powers 
 therein mentioned were formerly given by section 1369 of the Charter 
 of 1897, as amended in 1901. 
 
 In connection with this subdivision, see also the powers granted by 
 subdivision 19. 
 
 Notes upon the subjects mentioned in this subdivision will be found 
 under their respective heads in this work. 
 
 16. To render judgment in an action or make a final order 
 in summary proceedings upon confession or upon the con- 
 sent of both parties. 
 
 Notes to section 1, subdivision 16. 
 
 This subdivision is substantially the same as subdivision 13 of section 
 1364 of the Charter of 1897, as amended in 1901. The reference to 
 title 6, chapter 19 of the Code of Civil Procedure has been omitted. 
 The District Courts had jurisdiction to enter judgment by confession 
 by Laws 1857, chap. 344, § 3, until the repealing acts of 1877, chap. 
 417, subd. 4, and 1880, chap. 245, subd. 33, which rendered such juris- 
 diction doubtful until the enactment of subdivision 13 of section 1364 
 of the Charter. 
 
 In a note to title VII, "Judgments and Executions," article 1, 
 " Judgments," sections 248 to 251, above section 248. the commissioners 
 on revision say that "sections 3010, 3011, and 3012 of the Code pro- 
 vide for- judgments by confession, or by offer in justices' courts."
 
 § 1, Subd. 17. Jurisdiction and General Powers. 79 
 
 As to the practice on " Confession of Judgments,*' see those sections. 
 
 Appearance and consent. — Appearance, after service of defendant 
 with summons and consent to enter judgment, is not entering judgment 
 by confession. Gates v. Ward, 17 Barb. 424. 
 
 When invalid. — A confession of judgment to one who is simply a 
 surety for the judgment debtor upon certain notes that have been given 
 by him, where the confession states no facts, and does not show for 
 what cause of action the judgment is to be entered, is invalid. 
 
 The principal is not indebted to his surety until the surety has paid 
 the debt of the principal ; and it cannot be said that a principal is in- 
 debted to his surety for notes signed by the latter, although the surety, 
 in consideration of the confession of judgment for the amount thereof, 
 has agreed to pay such notes. The language required by subdivision 
 3 of section 3011 of the Code of Civil Procedure, requiring an affidavit 
 in case of such confession, " stating that the defendant is honestly and 
 justly indebted to the piaintiff in the sum specified therein," etc., does 
 not comprehend such an arrangement. The absence of any special 
 provision for the entry of judgments on confession in justices' courts 
 for contingent liabilities, and the requirements of the affidavit, speci- 
 fied in section 3011 of the Code of Civil Procedure, show that no such 
 .confessions for contingent liabilities were contemplated by the statute. 
 Adams v. Tator, 57 Hun, 302. 
 
 Where parties between whom no action is pending appear of their 
 own motion before a justice and execute papers which purport to be a 
 confession of judgment but which do not comply with the formalities 
 prescribed in section 3011 of the Code of Civil Procedure, no jurisdic- 
 tion to enter judgment is thereby conferred. Rowe v. Pickham, 36 
 App. Div. 173. 
 
 17. Other civil actions or proceedings of which district 
 courts in the city of New York, or justices of the peace had 
 jurisdiction on the thirty-first day of December, eighteen 
 hundred and ninety-seven, except such as shall be expressly 
 excluded by this act. 
 
 Notes to section i, subdivision 17. 
 
 This subdivision is substantially the same as the former section 14 
 of the Charter of 1897, as amended in 1901. 
 
 By section 364 all laws specified in the schedule annexed to this act, 
 in force on the 1st day of September, 1902, are repealed. This in- 
 cludes all of the Charter acts of 1897, as amended in 1901, from sections 
 1364 to 1429, except sections 1373, 1378, 1383. 1424 to 1427, inclusive, 
 which were not repealed or disposed of, but were preserved as Charter 
 enactments. They have no reference to " actions or proceedings " men-
 
 80 Jurisdiction and General Powers. § 1, Subd. 18. 
 
 tioned in this subdivision, and so, with the sections of the Consolida- 
 tion Act and Code of Civil Procedure, none of them left unrepealed 
 have reference to actions or proceedings. 
 
 Section 20 of this act made the provisions of the Code of Civil Pro- 
 cedure applicable in certain cases, but that has reference to procedure, 
 and under title I, " Jurisdiction and General Powers," it has reference 
 to the general powers of this court, and not to jurisdiction of " actions 
 or proceedings." 
 
 Section 302 of this act, " Construction," declares the provisions of 
 this act are not new enactments, but a continuation of the former laws. 
 
 As by section 2 of this act, entitled " No jurisdiction in certain cases," 
 only two classes of cases are excluded, to wit, " where title to real 
 property comes in question," and " equity jurisdiction," it seems that 
 this court has jurisdiction of every other action, limited however by 
 the express specifications of section 1, subdivision 1 to and including 19. 
 
 Action against joint debtors. — After recovery of judgment against 
 those served an action may be maintained against those not served 
 to procure a judgment charging their property with the sum remain- 
 ing unpaid upon the original judgment. See § 208. 
 
 Parties who may be joined. — See § 142. 
 
 Application of this article to defendants jointly liable (there is no 
 "article," it is title II, Actions; Summons; Parties). See § 43. 
 
 18. The jurisdiction extends to actions against the city 
 of Xew York, a domestic corporation, or a foreign corpora- 
 tion having an office in the city of New York, an adminis- 
 trator or executor as such, where the amount claimed does 
 not exceed five hundred dollars. 
 
 Notes to section i, subdivision 18. 
 
 This subdivision is taken from the preamble of section 1364 of the 
 Charter of 1897, as amended in 1P01, and adding thereto by giving 
 jurisdiction against an administrator or executor as such where the 
 amount claimed does not exceed $500. 
 
 It must be observed that this subdivision does not read, "The juris- 
 diction extends to actions by or against * * * an administrator or 
 executor as such, but only against an administrator or executor." By 
 section 1365, subdivision 2 of the Charter of 1897, as amended in 1901, 
 it is provided that this court cannot take cognizance of any civil action 
 where the action is brought against an executor or administrator as 
 such, and the amount claimed is in excess of fifty dollars, so that this 
 court had jurisdiction where the amount claimed was less than fifty 
 dollars.
 
 § 1, Sued. 19, § 2. Jurisdiction; General Powers. 81 
 
 We suppose that as jurisdiction of an action by an administrator 
 or executor as such is not expressly excluded, that they can come into 
 this court and sue in a representative capacity the same as any other 
 person. This subdivision does away with the numerous vexatious ques- 
 tions as to jurisdiction in actions against foreign corporations, and 
 allows actions to be brought in this court against the city of New 
 York which formerly could only be brought in the Supreme Court. See 
 $§ 155 and 156. 
 
 19. In an action or a summary proceeding, to direct or 
 set aside a verdict, vacate, amend or modify a judgment or 
 final order rendered, or made on consent, confession, inquest 
 or trial, grant a new trial, open a default, or in a proper 
 case grant a new trial on the ground of fraud or newly dis- 
 covered evidence. 
 
 Notes to section i, subdivision 19. 
 
 This section is new, comprising in a condensed form the powers here- 
 tofore exercised by this court or any justice thereof under the Con- 
 solidation Act (Laws 1882, chap. 410), section 1367, except the power 
 to grant a new trial for newly-discovered evidence. 
 
 In connection with the powers given by this subdivision, see also the 
 powers granted by subdivision 15 of this section. 
 
 Notes upon the subjects specified in this subdivision will be found 
 under such subjects in this work. 
 
 In subdivision 12 of this section, in relation to Summary Proceed- 
 ings, the court is given power to " grant or deny a motion for a new 
 trial." In the present subdivision 19 the power of the court, as therein 
 expressed, is limited to " grant a new trial," the words " or deny " are 
 omitted. 
 
 The jurisdiction or power is however perfected by section 255, where 
 it Is provided, " The court may also in a proper case grant or deny 
 a motion for a new trial on the ground of fraud, or newly-discovered 
 evidence." 
 
 Court may direct verdict, when. — See § 252. 
 
 Motion to set aside verdict, or vacate or amend judgment. — See 
 § 254. This was also authorized by Laws 1896, chap. 748. See also 
 Douglass v. Seiferd, 18 Misc. Rep. 188; Krakower v. Davis, 20 Misc. 
 Rep. 350; Cohoell v. Devlin, 20 Misc. Rep. 355. 
 
 New trial; fraud or newly-discovered evidence. — See § 255. 
 
 § 2. No jurisdiction in certain cases. — The said municipal 
 court cannot take cognizance of any civil actions in either 
 of the following cases: 
 6
 
 82 No Jurisdiction in Certain Cases. § 2. 
 
 Notes to section 2. 
 
 The preamble to this section is the same as the preamble in section 
 13G5 of the Charter of 181)7, as amended in 1901. It had four sub- 
 divisions which are now reduced to two. It will be observed that this 
 court, as here declared, had no jurisdiction in only two class of cases, 
 that is where the title to real property or equity comes in question, 
 except that an equitable defense is allowed in summary proceedings. 
 
 This section has reference entirely to no jurisdiction in civil actions, 
 and does not mention " general powers." 
 
 There are many subjects and matters of which the court has not 
 jurisdiction. The following are the most important: 
 
 Abatement. — After reversal, and remittal to this court for a new 
 trial, and inquest taken, but not signed by the judge, nor judgment 
 entered, the action abates, and jurisdiction is lost. Trenton, etc. v. 
 Smith, 26 Misc. Rep. 822, 56 N. Y. Supp. 1075. 
 
 Adjournment. — On appeal the loss of jurisdiction because of illegal 
 adjournments must appear from the statement in the record of the 
 dates of the adjournments, and of the party at whose instance they 
 were allowed, in order to be available as a ground of appeal from the 
 judgment rendered. Chevra Bnei Israel Anshe, etc. v. Chevra Bikur 
 Cholin Anshe, etc., 23 Misc. Rep. 367, 51 N. Y. Supp. 236. 
 
 Id.; default; judgment.-- This court has no power to render judg- 
 ment after adjournment in the interim as upon defendant's default in 
 answering. Whitman, etc. v. Hamilton, 27 Misc. Rep. 198, 57 N. Y. 
 Supp. 760. 
 
 Assault and battery; negligence. — This court has no jurisdiction of 
 an action for assault and battery by the conductor of the defendant 
 railroad company, negligence on the part of defendant or breach of 
 contract not being alleged. Fisher v. Metropolitan Street Ry. Co., 
 30 Misc. Rep. 430, 62 N. Y. Supp. 467. 
 
 Attachment. — The mere mailing of the summons and attachment 
 by the marshal, without posting copies of the same on the door of de- 
 fendant's residence, does not give a justice of this court jurisdiction. 
 and where such service is made, the return must state the reason for 
 not making personal service. Shapiro v. Goldberg, 31 Misc. Rep. 755, 
 64 N. Y. Supp. 88. 
 
 Attorney's lien. — This court is an inferior court of limited statutory 
 jurisdiction, has no such equitable control over its judgment as em- 
 powers it to enforce an attorney's lien thereon by vacating, to the 
 extent of t-ne lien, a satisfaction executed bj' the client, and issuing 
 execution for the lien. People ex rel. Moses ,/affc v. Fitzpatrick, 35 
 Misc. Rep. 456. 
 
 Consequential damages. — An action against policemen for preventing 
 the removal of property under an execution, by taking the marshal to 
 whom it was intrusted before a police magistrate, whereby the property
 
 § 2. No Jurisdiction in Certain Cases. 83 
 
 wa9 not taken and the proceeds thereof were lost to the judgment 
 creditor, — Held to have been improperly entertained since the justice 
 might be assumed to have found that the cause of action was not for 
 an injury to property within section 1304 of the Charter, hut at 
 most for consequential damages and not within the jurisdiction of the 
 court. Kneustler v. Doyle, 30 Misc. Rep. 442, 62 N. Y. Supp. 593. 
 
 Decedent's debts. — As to whether this court has jurisdiction of an 
 action to charge the next of kin of a decedent with his debts, brought 
 under the Code of Civil Procedure, section lf-'37, quaere? Siegel v. 
 Cohen, 23 Misc. Rep. 365; s. c, 51 N. Y. Supp. 318. 
 
 Disputed jurisdiction. — The fact that no instance is adduced of the 
 exercise of disputed jurisdiction affords a strong argument against the 
 existence of the jurisdiction. Roche v. McCaldin, 48 N. Y. St= Rep. 695. 
 
 Dismissal. — If plaintiff fails to appear on the adjourned day, and the 
 cause is dismissed therefor, the justice loses jurisdiction of defendant, 
 and plaintiff cannot thereafter restore the case and take an inquest. 
 Abrams v. Fine, 28 Misc. Rep. 533, 59 N. Y. Supp. 550. 
 
 Decision of justice not in time. — Judgment rendered after the time 
 limited by law or by consent of the parties for the decision, is void for 
 want of jurisdiction. Lambert v. Solomon, 23 App. Div. 562, 59 N. Y. 
 Supp. 676. 
 
 This court loses jurisdiction of a cause if the issues are not decided 
 within the eight (now fourteen) days specified by statute, or within 
 the time for which a stipulation extending the statutory limit of eight 
 days provides, and no decision being rendered and no certificate for a 
 jury trial being made within the time, a trial had thereafter against, 
 objection is nugatory. Lamura v. Haggerty, 30 Misc. Rep. 745, 62 
 N. Y. Supp. 1084. 
 
 By section 230 the justice has fourteen days to decide a cause. 
 
 Enlargement of jurisdiction by construction was refused in Mayor, 
 etc. v. Decker, 12 Daly, 65. 
 
 Estoppel. — Defendants answering upon the merits, and giving the 
 bond required by section 1366 of the Charter are estopped from avert- 
 ing that the court has not jurisdiction of their persons. Vogel v. 
 Banks, 60 App. Div. 459, 70 N. Y. Supp. 1010. 
 
 Implication. — It is a clear and salutary principle, that inferior juris- 
 dictions, not proceeding according to the course of common law, are 
 confined strictly to the authority given them. They can take nothing 
 by implication, but must show the power expressly given them, in 
 every instance. The sound rule of construction is to be liberal in re- 
 viewing their proceedings as far as respects regularity and form, and 
 strict in holding them to the exact limits of jurisdiction, prescribed 
 to them by statute. Jones v. Reed, 1 Johns. Cas. 20; s. c, 1 Paine. 594; 
 Loornis v. Boicers, 22 How. 361; Ahem v. Nat. Steamship Co., 11 Abb. 
 N. S. 362.
 
 84 No Jurisdiction in Certain Cases. § 2. 
 
 Fictitious name. — Jurisdiction of the person is not acquired by ser- 
 vice upon him of a summons naming a person of a different Christian 
 name as defendant, without more. Ignorance of the name should be 
 made to appear in the summons to justify the use of a fictitious name. 
 Fisher v. Hetherington, 11 Misc. Rep. 575. 
 
 Judgment of a court of record. — This court nas no jurisdiction of an 
 action on a judgment of a court of record. Lambert v. Hoffman, 24 
 Misc. Rep. 752, 5:5 N. Y. Supp. 962. 
 
 Loss of jurisdiction. — Where the record on appeal shows that judg- 
 ment was not entered until after the expiration of eight (now four- 
 teen) days after the trial and submission of the case to the justice for 
 decision, the judgment must be reversed for loss of jurisdiction to 
 render it. Penniman v. La Grange, 23 Misc. Rep. 121, 50 N. Y. Supp. 
 710. 
 
 Objection to jurisdiction when to be taken. — The fact that juris- 
 diction over the defendant does not appear is not available if not taken 
 at the trial. Hill v. Moebus, 31 Misc. Rep. 134, 63 N. Y. Supp. 1022. 
 
 Objection to jurisdiction, when may be taken. — The objection to the 
 jurisdiction is taken in time although first presented on the second 
 trial, if the fact of want of jurisdiction then appeared for the first 
 time. Brooks v. Dinsmore, 28 N. Y. St. Rep. 421, 18 Civ. Proc. Rep. 
 98. 8 N. Y. Supp. 103. - 
 
 Order of reference. — An order of reference in this court, though 
 entered by consent of the parties, is absolutely void. Barker v. Lane, 
 CO App. Div. 87, 69 N. Y. Supp. 739, revg. 33 Misc. Rep. 60, 68 N. Y. 
 Supp. 147. 
 
 Service of summons and complaint on defendant's attorney, not fol- 
 lowed by appearance on the return day, gives no jurisdiction, and a 
 judgment entered thereon as by default is void. Goldberg v. Fowler, 
 29 Misc. Rep. 328. 
 
 Referee. — This court has no power to appoint a referee, even on con- 
 sent. Barber v. Lane, 60 App. Div. 87. 
 
 Service of summons not a fact. — The return of a marshal of personal 
 service of the summons on the defendant establishes jurisdiction prima 
 facie, but if the service was not a fact, no jurisdiction is acquired. 
 Iron Clad Mfg. Co. v. Benjamin E. Smith & Sons, 28 Misc. Rep, 172, 59 
 N. Y. Supp. 332. 
 
 Subject-matter. — Where the statute has not conferred jurisdiction 
 over the subject-matter of the action, any judgment which may be 
 rendered will be absolutely void. Coffin v. Tracy, 3 Cai. 129; Blin v. 
 Cam pbett, 14 Johns. 432; Dudley v. Mayheic, 3 N. Y. 9; Beach v. Nixon, 
 9 X. Y. 36; Kiniz v. McNeal, 1 Den. 436. 
 
 Substituted service by leaving the copy of the summons at what 
 was assumed to be the defendant's residence, but which in fact was 
 not, the defendant having left the State, is insufficient to confer juris-
 
 § 2, Subd. 1. Xo Jurisdiction in Certain Oases. 85 
 
 V 
 
 diction. Matter of Norton, 32 Misc. Rep. 224, 66 N. Y. Supp. (100 St. 
 Kep.) 317. 
 
 Summons; amendment of. — Justice lias no power to allow an amend- 
 ment of summons on trial by adding the amount named in the summons 
 to another action between the same parties. Balch v. Wur~burger, 1) 
 Misc. Rep. 74. 
 
 Id.; not indorsed, the court gets no jurisdiction. Bissell v. N. Y., 
 etc., R. Co., 07 Barb. 385. But see Spooner v. Cornell, 12 Civ. Proc. 
 Rep. 319. 
 
 Tender of undertaking for removal of the action into the City Court 
 ceases the jurisdiction of this court. Leverson v. Zimmerman, 31 Misc. 
 Rep. 642, 64 N. Y. Supp. 723. 
 
 Waiver of amount in excess of jurisdiction. — A recovtry in excess of 
 jurisdiction may be waived and a recovery had up to the amount of 
 the jurisdiction of this court. Globe v. Ranch, 21 Misc. Rep. 48. 
 
 Written contract of conditional sale; hiring of personal property, or 
 chattel mortgage, et cetera. — By section 139, no action can be main- 
 tained in this court, which arises on a written contract of conditional 
 sale of personal property, where title is not to vest in the person 
 hiring until payment of a certain sum; or a chattel mortgage made to 
 secure the purchase price of chattels, except an action to foreclose the 
 lien, as provided in this section. 
 
 1. Where the title to real property comes in question as 
 prescribed in title four of this act. But in an action brought 
 in said court, the surety upon the defendants undertaking- 
 is liable in the case specified in section one hundred and 
 eighty of this act, to any amount for which judgment might 
 have been rendered by said court if the answer and under- 
 taking had not been delivered. 
 
 Note to section 2, subdivision i. 
 
 This subdivision is the same as subdivision 1 of section 1365 of the 
 Charter of 1897, as amended in 1901, with the exception of the refer- 
 ences to title 3 of chapter 19 and sections 2951 to 2958 of the Code of 
 Civil Procedure, and section 1349 of chapter 410 of Laws 1882 (the 
 Consolidation Act), therein contained, having been eliminated. Sections 
 2951 to 2958 of the said Code were the same as sections 1349 to 1356 
 of the Consolidation Act, and are now contained in title 4 of this act, 
 sections 179 to 186. 
 
 2. Said court shall not have any equity jurisdiction, ex- 
 cept however that this subdivision shall not be so construed
 
 86 No Jurisdiction, Etc. § 2, Subd. 2, and § 3. 
 
 as to prevent a person to or against whom a precept is issued 
 as provided in title two of chapter seventeen of the code of 
 civil procedure, from setting up an equitable defence in sum- 
 mary proceedings. 
 
 Notes to section 2, subdivision 2. 
 
 Attorney's lien; vacating satisfaction of judgment. — This court has 
 up power to vacate a satisfaction-piece riled and issue execution on the 
 judgment to enforce an attorney's lien. People ex rel. Jaffe v. Fitz- 
 patrick, 35 Misc. Rep. 450, 71 N. Y. Supp. 191. 
 
 Equity powers. — Upon a written contract for the payment of a 
 specified sum monthly, the plaintiff sued for the amount due one month ; 
 the defendant answered with a general denial, but admitted the exe- 
 cution of the contract; the litigation involved the terms thereof, and 
 a less sum was recovered; this recovery was sustained against the 
 objection that the court had exercised equity powers in reforming the 
 contract, the evidence supporting the judgment rendered. Railway, 
 etc., Co. v. Standard, etc., Co., 29 Misc. Rep. 115, 60 N. Y. Supp. 205. 
 
 No equity powers. — District Courts possessed none of the peculiar 
 powers of courts of equity and had no jurisdiction whatever in respect 
 to them. Williams v. Carroll, 2 Hilt. 438; Salter v. Parkhurst, 2 Daly, 
 240. 
 
 No affirmative relief on the ground of fraud can be had except to 
 recover damages for fraud or deceit, as provided by section 1, sub- 
 division 13, of this act. In the case of Malkemesius v. Pauly, 17 Misc. 
 Rep. 371, the court tried the question of fraud in the making of an 
 assignment for the benefit of creditors as a defense to an action upon 
 a bond given by a claimant, no affirmative relief being asked on that 
 ground. 
 
 Defense of fraud. — While this court has no equity jurisdiction, fraud 
 in inducing a contract is there, as elsewhere, available as a defense. 
 Estelle v. Dinsbeer, 9 Misc. Rep. 485; s. c, 01 N. Y. St. Rep. 96, 30 
 N. Y. Supp. 226; Malkemesius v. Pauly, 17 Misc. Rep. 371. 
 
 Written instrument. — These courts have no jurisdiction in actions 
 brought to reform a written contract upon the ground of a mistake of 
 a material fact; nor have they in an action upon a written instrument 
 which completely expresses the agreement of the parties' power to re- 
 ceive evidence that the same was made under such a mistake. Ferree 
 v. Ellsworth, 1 Delehanty, 93: s. c, 47 N. Y. St. Rep. 119, citing 
 Williams v. Carroll, 2 Hilt. 438; Salter v. Parkhurst, 2 Daly, 240. 
 
 §3. Removal. — In an action specified in the last section 
 but one, excepting subdivisions four and five, where the dam-
 
 § 3. Removal. 87 
 
 ages claimed or the value of the chattel or all the chattels 
 claimed, as stated in the complaint, exceeds two hundred and 
 fifty dollars, the defendant may, after issue is joined and 
 before an adjournment has been granted upon his applica- 
 tion, apply to the justice holding court in the district in 
 ■which the action is brought for an order removing the action, 
 and if it be in the second district of the borough of the 
 Bronx, or in any district in the borough of Manhattan, to 
 the city court of the city of Xew York, if in any other dis- 
 trict into the county court of the county wherein the district 
 is situated, if the said county court has jurisdiction of such 
 action, otherwise into the supreme court in such county. 
 Such an order must be granted upon the defendant's filing 
 with the clerk an undertaking approved by the court, in a 
 sum not less than twice the amount of the damages claimed 
 or twice the value of the chattel or of all the chattels claimed, 
 as stated in the complaint, with one or more sureties, to the 
 effect that the defendant will pay to the plaintiff the amount 
 of any judgment that may be recovered against him in the 
 court to which such action shall be removed. From the time 
 of granting the order, the city court or county court or su- 
 preme court, as the case may be, has cognizance of the action, 
 and the clerk of the court must forthwith deliver to the 
 clerk of such court to which the action shall be removed all 
 process, pleadings and other papers in the action, and certi- 
 fied copies of all minutes, entries and orders relating thereto, 
 which must be filed, entered or recorded, as the case requires, 
 in the latter's office. Where there are two or more de- 
 fendants to an action all of the defendants must unite in 
 the application. But the court in the district in which the 
 action is brought, if satisfied from all the circumstances of 
 the case, by competent proof either by affidavit or the ex- 
 amination of witnesses that the defendants, other than the 
 one making the application, have been named as defendants, 
 solely for the purpose of preventing the removal, may, not- 
 withstanding the failure of defendants to unite, grant the 
 application for removal.
 
 88 Removal. § 3. 
 
 Notes to section 3. 
 
 This section was formerly section 1.36G of the Charter (Laws 1897,. 
 chap. 378, as amended in 1901), which superseded section 1287 of the 
 Consolidation Act (Laws 1882, chap. 410), the latter of which took 
 the place of section 3216 of the Code of Civil Procedure. The order 
 of removal was formerly to the Court of Common Pleas up to the 
 time when by Laws 1895, chapter 946, that court was abolished, and 
 since which time the removal has been and is now under the present 
 act to the " City Court of the city of New York." 
 
 Two important changes have been made in this section. In the 
 former section 1365 of the Charter of 1897, as amended in 1901, it 
 was required that the defendant file with the clerk an undertaking in 
 a sum fixed by the justice, etc. Thus the undertaking was often exe- 
 cuted with the sum blank, and after its execution the justice fixed the 
 amount, which was inserted in the undertaking; this gave rise to the 
 decisions in, Scherens v. Hopkins, 42 N. Y. St. Rep. 189; s. c, 16 N. Y. 
 Supp. 863, that a valid undertaking on removal may be executed before 
 the amount is fixed by the court, and if it is in the amount so fixed 
 it will be binding on the sureties from the time it is filed with the 
 clerk, although the fact of the fixing is not recited in it; and to the 
 case of Morgan v. Lehigh R. R. Co., 14 Misc. Rep. 26, that the fact 
 that the undertaking was executed before the court had made an order 
 fixing its amount is no reason for denying an application for removal. 
 
 The other change is that relating to a case where there are two or 
 more defendants who must unite in the application to prevent an im- 
 proper interference with the right of removal. This legislation was 
 caused doubtless by such cases as Matter of Suydam, 26 Misc. Rep. 868, 
 and People ex rcl. Metropolitan St. Ry. Co. v. Roesch, 27 Misc. Rep. 
 44, 57 N. Y. Supp. 295. 
 
 It will be observed that the actions mentioned in subdivisions 4 and 
 5 of section 1 are excluded from removal; these are actions upon a 
 bastardy or abandonment bond, and an action upon the bond of a 
 marshal. 
 
 Care must be taken that the application to remove is made after 
 issue joined, and before an adjournment is had. The form of the 
 undertaking and the order on removal provide for this. Care must 
 also be taken that the undertaking is approved by the court. 
 
 Adjournment. — A motion by the party desiring the removal which 
 necessitates an adjournment is equivalent to an application for an 
 adjournment. Ives v. Qumn, 7 Misc. Rep. 660. 
 
 Where defendant withdraws his application for removal on return 
 day of summons and obtains an adjournment, he loses his right to- 
 removal. Enright v. Franklin Pub. Co., 24 Misc. Rep. 181; s. c, 52; 
 N. Y. Supp. 704.
 
 § 3. Removal. 89 
 
 By the terms of the statute, after an adjournment had at defend- 
 ant's instance, it is too late to remove. Dinkle v. Wehle, 11 Abb. 
 N. C. 124. 
 
 For further examples and cases, see " Waiver of Right," below. 
 
 Amendment of undertaking can only be had with the consent of the 
 sureties. Langlcy v. Warren, 1 N. Y. 606; s. c, 3 How. 363; Wilson 
 v. Allen, 3 How. 369. Consult however Wood v. Kelly, 2 Hilt. 334; 
 Irwin v. Muir. 13 How. Pr. 409; 9. c, 4 Abb. 133; Robins v. Moran, 23- 
 Week. Dig. 326. 
 
 Amount; interest on claim. — Interest is an element of a debt or 
 claim, and follows as a matter of right. And where the complaint in 
 an action brought upon a check for $100, demands the amount of the 
 check and five days' interest, ," the damages claimed" exceed within 
 the meaning of section 3216 of the Code of Civil Procedure $100, and 
 the appellant defendant is consequently entitled as a matter of right 
 to remove the case to the City Court upon complying with the require- 
 ments of the said section. Blumenthal v. Lloyd, 18 Misc. Rep. 195. 
 
 Where the complaint, in an action for personal injuries, demands 
 judgment for $245, with interest from a day stated, the case may prop- 
 erly be removed to the City Court of said city if the interest, if given 
 by the jury upon the trial, would make the damages exceed $250 at 
 the time when removal is sought. Leicis v. Metropolitan St. Ry. Co., 
 35 Misc. Rep. 304. 
 
 Consolidation of actions; removal on. — The Marine Court (City Court 
 of New York ) , on a motion to consolidate, had power to remove to 
 itself an action pending in one of the District Courts of the city of 
 New York. McKay v. Reed, City Court Rep., vol. 1, p. 464. See also 
 s. c. 12 Abb. N. C. 58 and 22 Abb. N. C. 62, followed in Sire v. Rneuper, 
 19 N. Y. St. Rep. 43; s. c, 22 Abb. N. C. 63, and 2 McCarthy, 194, n. 
 
 The City Court of New York has power to remove from this court 
 and consolidate with an action pending in it between the same parties, 
 an action in this court where the causes of action arise out of the same 
 transaction and are provable by the same evidence. Curley v. Schafer 
 Brewing Co., 35 Misc. Rep. 131. 
 
 Constitutionality. — The statute to remove the cause is not unconsti- 
 tutional, as impairing the obligation of a contract or taking a vested 
 right. Johnson v. Ackerson, 3 Daly, 430. 
 
 Costs on removal.— In Levene v. Hahner, 62 App. Div. 195, it was 
 held, " that with respect to actions originally commenced in this court 
 and removed into the City Court of the city of New York and tried: 
 therein, no provision has been made by the Legislature as to costs, 
 and that under such circumstances neither party is entitled to them. 
 
 By section 332, it is provided that, " Where an action is removed, 
 as provided in section three of this act, costs shall be allowed the same 
 as if the action had been commenced in the court to which it is 
 removed."
 
 90 Removal. § 3. 
 
 Discontinuance of action cannot be granted until the justice has ap- 
 proved the undertaking on removal or refused to do so. Tuttle v. Gal- 
 ligan, -'■'> Misc. Rep. 4.17, 51 X. Y. Supp. 359; Leverson v. Zimmerman, 
 31 Misc. Rep. 642, 64 X. Y. Supp. 723. 
 
 Duty of justice in approving undertaking. — -Where an undertaking 
 with two sureties is presented to the justice for the purpose of the 
 removal of a proper case into the Court of Common Pleas, the justice 
 is bound judicially to approve the undertaking and sign the order of 
 removal. The justice has no discretion in such a case to refuse to 
 approve and accept of one of the sureties on the ground that he is per- 
 sonally acquainted with him and will not accept him as a responsible 
 surety. O'Connor v. Moschowitz, 4S How. Pr. 451. 
 
 Remedy, if justice refuse to accept the undertaking. — Where the 
 justice erroneously refused to accept the undertaking and sign the 
 order of removal the defendant's remedy is by appeal, and prohibition 
 will not lie against further proceedings in the case by the justice. 
 People v. Fourth District Court, 13 Civ. Pro. Rep. 134. See also O'Con- 
 nor v. Moschoivitz, 48 How. Pr. 451; Greve v. Wallowitz, 24 Misc. Rep. 
 601. 
 
 On appeal a judgment was reversed on the ground that the justice 
 had proceeded after his jurisdiction was arrested by an application 
 for removal of the cause. • Held, that, after the appellate court had inti- 
 mated or announced its decision, it was too late for a motion to amend 
 the justice's return so as to show that, before defendants' application for 
 removal, there had been an adjournment on their application, and for 
 a reargument on such amended return. Warren v. Campbell, 14 N. Y. 
 Supp. 165. This case contains on page 166 a note on removal. The 
 case is also reported in 37 N. Y. St. Rep. 762. 
 
 A refusal to grant an application for removal of the cause cannot 
 be held to be prejudicial error where the record fails to show that such 
 application has been made after issue was joined. Zeimer v. Htearns, 
 14 Misc. Rep. 7. 
 
 Effect of offer of undertaking; jurisdiction arrested. — The jurisdic- 
 tion of the justice is arrested when the undertaking is offered, and he 
 can take no step in the cause, except to adjourn, until he has accepted 
 or refused the undertaking. Hogan v. Devlin, 2 Daly, 184; Warren v. 
 Campbell, 14 N. Y. Supp. 165. 
 
 The tender of the undertaking tor removal of the cause to the City 
 Court, under Code Civ. Proc, § 3216, arrests the jurisdiction of 
 the justice until he has approved the undertaking or refused to do 
 so, and he has no authority thereupon to grant a discontinuance. 
 Tuttle v. Galligan, 23 Misc. Rep. 457, 51 N. Y. Supp. 359. See also 
 Leverson v. Zimmerman, 31 Misc. Rep. 642, 64 N. Y. Supp. 723. 
 
 Estoppel; jurisdiction; waiver. — Defendants answering upon the 
 merits and giving the bond required are estopped from asserting that
 
 § 3. Removal. 91 
 
 the court has not jurisdiction of their persons. Vogcl v. Banks, GO 
 App. Div. 459, 70 N. Y. Supp. 1010. 
 
 Exception to and justification of sureties. — Neither the act of 1857 
 (chap. 344), the Charter Act of 1897, as amended in 1901, section 1365, 
 made, nor does the present act make, any provisions for an exception 
 to, and justification of, sureties. This gave rise to such decisions as 
 Moore v. Thompson, 2 Daly, 180, where it was held, the justice could 
 adopt any reasonable mode of satisfying himself of the sufficiency of 
 the sureties. See also Fleurelling v. Brandon, 4 Daly, 333. 
 
 This omission from section 3 of the present act has been provided 
 for in section 70 of the present act, headed " Sections applicable as to 
 undertakings," etc., making sections 106 to 110 and sections 127 and 
 128 of the present act relating to the exception, qualification and 
 justification of sureties and the approval or allowance of the under- 
 taking apply to the undertaking on removal. 
 
 Increasing amount sued for. — An amendment on the trial, by includ- 
 ing the amount claimed in another action in the same court, though 
 it increased the amount to a sum which entitled defendant to a re- 
 moval, deprived him of his opportunity to claim such a right, and was 
 therefore improperly granted. Batch v. Wurzburner, 29 N. Y. Supp. G2 ; 
 Walker v. Scott, 3 Misc. Rep. 329- s. c, 23 N. Y. Supp. 234, 23 
 Civ. Proc. Rep. 90. 
 
 Insufficient undertaking. — An action brought in the borough of Brook- 
 lyn may, under the Charter of 1897, be removed to the County Court as 
 a matter of right by defendant, where it is brought to recover chattels 
 of a value exceeding $250, upon filing the statutory undertaking with 
 one surety, and if the justice deems the undertaking offered to be 
 insufficient, he may permit another undertaking to be furnished. Greve 
 v. Walloicitz, 24 Misc. Rep. 601. 
 
 Mandamus will not issue to compel a justice to order the removal of 
 a cause to the City Court, which he refuses to do on the ground he has 
 no power, where there is an adequate remedy by appeal. People ex rel. 
 Metropolitan St. Ry. Co. v. Roesch, 27 Misc. Rep. 44, 57 N. Y. Supp. 295. 
 
 Mistakes, omissions, defects, and irregularities; and general rules 
 respecting affidavits, bonds and undertakings. — See notes to § 1, subd. 
 3, and § 3. 
 
 Offer to allow judgment. — As to the effect of an offer in the court 
 below after a removal, see Mack v. Soule, 52 Hun, 198, 23 N. Y. St. Rep. 
 307, 17 Civ. Proc. Rep. 121. 
 
 Reducing amount of claim. — Where a justice, after the filing of such 
 an undertaking, and before its approval or disapproval by him, enter- 
 tained a motion by the plaintiff to reduce the amount of his claim, and 
 thus, on the proof adduced, gave a judgment for the plaintiff. — Held, 
 that such judgment was erroneous, and will be reversed on appeal. 
 Hogan v. Devlin, 2 Daly, 184.
 
 92 Removal. § 3. 
 
 Remanding for amendment. — Whore after the removal of a cause it 
 appears that the undertaking given to secure such removal is defective 
 in that it does not state any amount of penalty, the court should 
 direct that the return be remanded for the purpose of allowing an 
 amendment to the undertaking. Levy v. Scheringer, 19 Civ. Pro. Rep. 
 346. 
 
 Status of action removed. — See Druckermiller v. Shoniger, 15 Daly, 
 477; Latterman v. Fere, 11 Civ. Proe. Rep. 217; Salter v. Parkkurst, 
 3 Daly, 24(1. 
 
 Stay of proceedings in this court by the Supreme Court. — Upon hear- 
 ing of a motion to consolidate with an action in the Supreme Court an 
 action pending in a District Court, it was shown that on the lGth day 
 of October, 1895, the plaintiff commenced an action in a District Court 
 upon a policy of insurance against two persons named Daynes and 
 Van Der Hoogt, who were alleged to be severally liable; that on the 9th 
 day of November, 1895, he began the present action upon the same 
 policy against the same defendants and forty-eight other defendants, 
 and claimed herein a several liability on the part of each defendant 
 for the whole amount of the insurance for which the policy was written. 
 The court denied the motion to consolidate. Held, that this was proper. 
 That the proper course for the defendants was not to have moved to 
 consolidate, but to have moved to stay the trial of the District Court 
 action until the trial of the action in the Supreme Court and that the 
 court had power to direct such a stay. Isear v. Daynes, 1 App. Div. 
 557. 
 
 Supplemental answer cannot be allowed in an action removed from 
 this court under the statute, but an amended answer setting up such 
 supplemental matter may be allowed on terms. Meyers v. Rosenback, 
 9 Misc. Rep. 89. 
 
 Tender of undertaking for removal. — Jurisdiction over an action re- 
 movable to the New York City Court, in which there has been no ad- 
 journment, ceases upon the tender by defendant of an undertaking for 
 the largest amount mentioned in Code of Civil Procedure, section 3216, 
 though no order was made. Lever son v. Zimmerman, 31 Misc. Rep. 
 642, 64 N. Y. Supp. 723. See also Tuttle v. Galligan, 23 Misc. Rep. 457, 
 51 N. Y. Supp. 359. 
 
 Waiver of right. — By the terms of the statute after an adjournment 
 had at defendant's instance, it is too late for an order of removal. 
 Dinkle v. Wehle, 11 Abb. N. C. 124. 
 
 Where an action is, after issue joined, adjourned by consent, and the 
 parties afterward proceed to trial, defendant thereby waives his right 
 to remove the action. Halperin v. Schermerhom, 28 N. Y. Supp. 5G2. 
 
 An action cannot be removed after the parties have elected to pro- 
 ceed to trial and submitted to the jurisdiction. Halperin v. Schermer- 
 hom, 56 N. Y. St. Rep. 336.
 
 §3. Removal. 93 
 
 Where, after filing the undertaking, an adjournment is granted to 
 allow defendant to produce his sureties, and on the adjourned day he 
 fails to appear and judgment goes against him by default, on opening 
 the default he waives his right to recover by signing a stipulation to 
 pay the amount of plaintiff's claim into court, and to come in and de- 
 fend on the merits. Krahner v. Heilman, 9 N. Y. Supp. 033. 
 
 An adjournment was taken in order to allow defendant to produce 
 his sureties to justify on an undertaking offered for the removal of the 
 cause, but he failed to appear on the adjourned day, and his default 
 was taken. .Subsequently, the default was vacated and defendant per- 
 mitted to defend on depositing the amount of plaintiff's claim and costs 
 with the court and signing a stipulation to that effect, and the case was 
 thereafter adjourned several times. Held, that defendant by his stipu- 
 lation and his subsequent proceedings waived his right to a removal. 
 Krahmr v. Heilman, 16 Daly, 132; s. c, 30 N. Y. St. Rep. 434, 9 N. Y. 
 Supp. 633. 
 
 On a preliminary motion the court imposed costs upon the plaintiff 
 as a condition of requiring defendant to answer. Defendant answered 
 and filed undertaking on application for removal of the cause to the 
 City Court, and upon appearing with his sureties for justification, sug- 
 gested that plr.mtiff had not paid the costs imposed upon him, where- 
 upon the court adjourned the case for a week, and on the adjourned 
 day dismissed it on defendant's motion, but subsequently vacated the 
 order of dismissal. Held, that these facts did not constitute a waiver 
 of defendant's right to a removal of the cause. Schnitzpahn v. The 
 Davis Sewing Machine Co., 19 Misc. Rep. 621. 
 
 PROCEEDINGS AFTER REMOVAL IN THE CITY COURT. 
 
 Action not as one brought in a court of record. — An action removed 
 is not an action " brought " in court of record, within tne meaning 
 of section 3208 of the Code of Civil Procedure, allowing defendant to 
 require security for costs from a nonresident plaintiff. But while 
 defendant cannot require security for costs, the court may require it, 
 under section 889 of the Code, as a condition of allowing plaintiff a. 
 eommission to take testimony abroad; and such a condition is reason- 
 able where plaintiffs have delayed their application without apparent 
 cause, and their recovery is doubtful. H antes et al. v. Judd, 16 Daly, 
 110. 
 
 Amendment of pleadings. — The court has power to allow amendment 
 of pleadings in actions removed to it from the court below, to the same 
 extent, and within the same limits, as the court below would have had 
 if no such removal had taken place. Lallcman v. Fere, 18 Abb. N. C. 
 56; s. c, 11 Civ. Proc. Rep. 217: Ludwig v. Martin, 4 Daly, 481. 
 
 Amount of recovery limited as in court below.— After removal, the 
 plaintiff is limited in the amount of his recovery by the special juris-
 
 O-i Removal. § 3. 
 
 diction of the court below; a complaint demanding a greater sum is 
 bad on demurrer. Druckenmiller v. Shoninger, 15 Daly, 477; s. c, 29 
 X. Y. St. Rep. 142, 8 N. Y. Supp. 482; Ives v. Quvnn, 7 Misc. Kep. 000; 
 s. c, 58 X. V. St. Rep. 300, 28 X. Y. Supp. 267. 
 
 More than $250 may be recovered, if claimed in the summons, as was. 
 decided in the well-considered case of Ludwig v. Minnott, 4 Daly, 481 - r 
 but this case was not mentioned or followed on this point in subsequent 
 decisions, although it is mentioned with approval in Lalleman v. Fcre> 
 18 Abb. X. C. CO, upon the question of amendment of the pleadings, 
 after removal. 
 
 Defective undertaking; remedy for. — Where, after the removal of a 
 cause, it appears that the undertaking given to secure such removal is 
 defective in that it does not state any amount of penalty, the court 
 should direct that the return be remanded for the purpose of allowing 
 an amendment to the undertaking. Levy v. Scheringer, 19 Civ. Proc. 
 Rep. 340; s. e., 13 X. Y. Supp. 500. 
 
 Where one of two defendants, who was served with the summons, in 
 his undertaking on removal omitted to allege that his codefendant had 
 not been served ; upon motion to remand the action for said error, the 
 court granted the motion for the purpose of allowing the undertaking 
 to be amended in the court below, and otherwise denied the motion. 
 ~Nicoll v. Palmer, 68 X. Y. St. Rep. 791, citing Levy v. Scheringer, 
 18 Civ. Proc. Rep. 346. 
 
 Improper removal. — Where a case is improperly removed, it may be 
 remanded. Field v. Talcott, 4 Law Bui. 22. 
 
 Increase of amount claimed after the removal, to the court into which 
 the action was removed, is discretionary with the court, and will not 
 be granted if there is laches in the application, and without reason 
 given for the increase. Katzenbach v. McLeod, Lawrence, J., X. Y. 
 Law Journal, Feb. 8 and May 1, 1896. See also Walker v. Scott, 3 
 Misc. Rep. 329, and opinion in Smith v. White, 23 X. Y. 574; Ludwig 
 v. Minnott, 4 Daly, 481; Vakcs v. High, 11 Misc. Rep. 213. 
 
 An action brought on oral pleadings was removed and the pleadings, 
 reduced to writing under an order of the court. Defendant thereupon, 
 in his written answer, interposed a counterclaim for a greater sum 
 than claimed in the court below, and in excess of the amount for 
 which the District Courts could entertain jurisdiction. Held, that the 
 service of the answer, setting up new defenses and a counterclaim for 
 a larger sum without leave of the court, was unauthorized. Walker v. 
 Scott, 3 Misc. Rep. 329; s. c, 23 X. Y. Supp. 234, 23 Civ. Proc. Rep. 
 90; Batch v. Wurzburner, 29 X. Y. Supp. 62. 
 
 Jurisdiction and practice. — When a cause is transferred it becomes 
 subject to all the general rules of practice and principles of law 
 governing cases of like character as to which the court has original 
 jurisdiction. Ludwig v. Minnott, 4 Daly, 4S1.
 
 § 3. Removal. 05 
 
 The court to which the action was removed has exclusive jurisdiction 
 of the action and all proceedings thereunder, and if the plaintiff prose- 
 cuted in the court below was a poor person, a new order must be ob- 
 tained. Oakes v. High, 11 Misc. Rep. 313. 
 
 Pleadings. — The pleadings being oral were reduced to writing by an 
 order of the court to which the action was removed. The defendant 
 in his answer interposed a counterclaim for a greater sum than that 
 claimed in the court below, and in excess of the amount for which the 
 District Courts could entertain jurisdiction. Held, that the servict 
 of the answer setting up a new defense and a counterclaim for a larger 
 sum without leave of the court was unauthorized. Walker v. Scott, 
 3 Misc. Rep. 329; s. c, 53 N. Y. St. Rep. 632. See also opinion in 
 Smith v. White, 23 N. Y. 574. 
 
 The oral pleadings upon the removal of the cause to the City Court 
 become the pleadings to the latter, and upon its order to reduce them 
 to writing, the defendant should answer as he did below, and an ob- 
 jection that the complaint does not conform to the oral complaint 
 should be taken by answer, and not by demurrer. Davis v. Bingham, 32 
 Misc. Rep. 777, 66 N. Y. Supp. 489. 
 
 No change of issues. — An action, after removal, cannot be changed 
 in its character by that court or by a referee. The issues created by the 
 pleadings in the court below are those to be tried on its removal to 
 this court, and it continues in all respects to be an action of the court 
 below, the trial of which is to be had in the court to which the action 
 was removed. The issues cannot be so changed that a subject not of 
 original jurisdiction may be litigated against the consent of one of the 
 parties. Smith v. White, 23 N. Y. 572; Salter v. Parkhurst, 2 Daly, 
 240; Fagan v. Boar, 11 Civ. Proc. Rep. 220. 
 
 Poor person; new order. — The court to which the action was removed 
 has exclusive jurisdiction of the action and all proceedings thereunder, 
 and if the plaintiff desires to proceed in it as a poor person, a new 
 order must be obtained. A party to whom leave has been granted to 
 sue as a poor person who neglects to call the attention of his opponent 
 or the court to the order, until after entry of judgment and taxation 
 of costs, loses all rights under the order. Oakes v. High, 11 Misc. Rep. 
 313. 
 
 Recovery can not be had beyond the amount stated in the complaint, 
 as it is this sum that limited the jurisdiction of the justice under 
 section 3215 of the Code of Civil Procedure. Ives v. Quinn, 7 Misc. 
 Rep. 660; s. c, 58 N. Y. St. Rep. 390, 28 N. Y. Supp. 267. 
 
 Security for costs cannot be required on the ground of plaintiff's non- 
 residence in an action removed. Hames v. Judd, 30 N. Y. St. Rep. 666 ; 
 s. c, 18 Civ. Proc. Rep. 324. 9 1ST. Y Supp. 743. 
 
 Supplemental answer cannot be served in an action removed. But an 
 amendment of the answer may be allowed on terms. Meyers v. Rosen- 
 bach, 7 Misc. Rep. 560; Russell v. Ruckman, 3 E. D. Smith, 419.
 
 96 Contempt of Court. §§ 4, 5, G. 
 
 §4. Contempt of court; criminal. — The said court has 
 power to punish for a criminal contempt, a person guilty of 
 either of the following acts and no others : 
 
 1. Disorderly, contemptuous or insolent behavior, com- 
 mitted during its sitting, in its immediate view and presence, 
 and directly tending to interrupt its proceedings, or to impair 
 the respect due to its authority. 
 
 2. Breach of the peace, noise or other disturbance directly 
 tending to interrupt its proceedings. 
 
 3. Wilful disobedience to its lawful mandate. 
 
 4. Resistance wilfully offered to its lawful mandates. 
 
 5. Contumacious and unlawful refusal to be sworn as a 
 witness, or after being sworn, to answer any legal and proper 
 interrogatory. 
 
 G. Publication of a false or grossly inaccurate report of its 
 proceedings. But a court cannot punish as a contempt, the 
 publication of a true, full and fair report of a trial, argument, 
 decision or other proceeding thereon. 
 
 § 5. Punishment. — Punishment for a contempt, specified in 
 the last section, may be by fine, not exceeding two hundred 
 and fifty dollars, or by imprisonment not exceeding thirty 
 days, in the jail of the county where the court is sitting, or 
 both, in the discretion of the court. Where a person is com- 
 mitted to jail, for the non-payment of such a fine, he must be 
 discharged at the expiration of thirty days; but where he 
 is also committed for a definite time, the thirty days must be 
 computed from the expiration of the definite time. 
 
 § 6. In view of court; how punished. — Such a contempt, 
 committed in the immediate view and presence of the court, 
 may be punished summarily. When not so committed, the 
 party charged must be notified of the accusation, and have a 
 reasonable time to make a defence, and the court may issue a 
 warrant directed generally to any marshal requiring him to 
 bring the offender before the court. Where a person is com- 
 mitted for such a contempt, the particular circumstance of 
 his offence must be set forth in the mandate of commitment.
 
 §§ 7, 8. Contempt of Coukt. 97 
 
 § 7. Preceding three sections limited. — Punishment for a 
 contempt, as herein prescribed, does not bar an indictment 
 for the same offence; but where a person who has been so 
 punished is convicted on such an indictment, the courts in 
 sentencing him, must take into consideration the previous 
 punishment. 
 
 § 8. Contempts punishable civilly. — The court has power 
 to punish, by fine and imprisonment, or either, a neglect or 
 violation of duty, or other misconduct, by which a right or 
 remedy of a party to a civil action or special proceeding, 
 pending in the court may be defeated, impaired, impeded, or 
 prejudiced, in either of the following cases: 
 
 1. An attorney, counsellor, clerk, sheriff, marshal, coroner, 
 or other person, in any manner duly selected or appointed 
 to perform a judicial or ministerial service, for a misbehavior 
 in his office or trust, or for a wilful neglect or violation of 
 duty therein; or for disobedience to a lawful mandate of the 
 court, or of a judge thereof, or of an officer authorized to 
 perform the duties of such a judge. 
 
 2. A party to the action or special proceeding, for putting 
 in fictitious bail or a fictitious surety, or for any deceit or 
 abuse of a mandate or proceeding of the court. 
 
 3. A party to the action or special proceeding, an attorney, 
 counsellor, or other person, for the non-payment of a sum of 
 money ordered or adjudged by the court to be paid, in a 
 case where by law execution cannot be awarded for the 
 collection of such sum; or for any other disobedience to a 
 lawful mandate of the court. 
 
 4. A person for assuming to be an attorney or counsellor, 
 or other officer of the court, and acting as such without 
 authority; for rescuing any property or person in the custody 
 of an officer, by virtue of a mandate of the court; for un- 
 lawfully detaining or fraudulently preventing, or disabling 
 from attending or testifying, a witness, or a party to the 
 action or special proceeding, while going to, remaining at, 
 or returning from, the sitting where it is noticed for trial or 
 
 7
 
 9S Contempt of Court. §§ 4, 5, 6, 7* 
 
 bearing; and for any other unlawful interference with the 
 proceedings therein. 
 
 5. A person subpoenaed as a witness, for refusing or 
 neglecting to obey the subpoena, or to attend, or to be sworn 
 or to answer as witness. 
 
 6. A person duh notified to attend as a juror at a term 
 of the court, for improperly conversing with a party to an 
 action or special proceeding, to be tried at that term, or with 
 any other person in relation to the merits of that action or 
 special proceeding; or for receiving a communication from 
 any other person, in relation to the merits of such an action 
 or special proceeding, without immediately disclosing the 
 same to the court. 
 
 7. In any other case where an attachment or any other 
 proceeding to punish for a contempt, has been usually 
 adopted mid practiced in a court of record, to enforce a 
 civil remedy <»f a party to an action, or special proceeding 
 in that court, or to protect the right of a party. 
 
 Notes to sections 4, 5, 6, 7, and 8. 
 
 With the exception of the preamble, section 4 with its six subdivisions 
 is the same as section 8 of the Code of Civil Procedure, which was 
 applied to this court by section 1369 of the Charter of 1897, as amended 
 in 1901, and Laws 1882, chap. 410 (Consolidation Act). § 1288. 
 
 Section 5 is the same as section 9 of the Code of Civil Procedure 
 without change, and was also made applicable by the Charter of 1897 
 as amended in 1901, and Consolidation Act (Laws 1882, chap. 410), 
 § 1288. 
 
 Section 6 is composed of sections 10 and 11 of the Code of Civil 
 Procedure, with the exception of the provision in reference to the 
 marshal. 
 
 Section 7 is substantially new, and takes the place of section 12 ot 
 the Code of Civil Procedure. 
 
 Section 8 with its seven subdivisions is substantially the same as 
 section 14 of the Code of Civil Procedure with its eight subdivisions 
 omitting the seventh subdivision. 
 
 Answer; striking out. — The court has power to strike out an answer 
 of a defendant as punishment for a contempt. Socialistic Co-operative 
 Publishing Co. v. Kuhn, 51 App. Div. 583. 
 
 Appeal; the adjudication final. — If there is jurisdiction to commit for 
 contempt, the adjudication upon the question of contempt is final, and 
 cannot be reviewed on appeal. Mitchell's Case, 12 Abb. Pr. 249.
 
 §§ 4, 5, 6, 7. Contempt of Court. 99 
 
 Attachment. — A warrant of attachment for contempt need not re- 
 cite the contempt nor any of the proceedings upon which the warrant 
 rests. People ex rel. Pond v. Tamsen, 15 Misc. Rep. 365. 
 
 Attorney's privilege. — The refusal to produce papers acknowledged to 
 be in his possession, for the reason that it would be a breach of his 
 privilege as attorney, is assuming the right of determining for himself 
 the question of privilege, which is not his province, but that of the 
 court; and his refusal to produce the papers is contempt, for which 
 he can be punished. MitchclVs Case, 12 Abb. Pr. 249. 
 
 Writing letter to judge. — The writing of a letter by an attorney to 
 a judge, scandalizing his decision, is gross misconduct, but not a 
 criminal contempt. In re Griffin, 15 N. Y. St. Rep. 400; Matter of 
 Wilkes, 24 N. Y. St. Rep. 292. 
 
 Interrupting trial. — The authority to punish counsel for contempt 
 of court in interrupting the proceedings in a trial pertains solely and 
 exclusively to the court in which it occurs, in its immediate view and 
 presence. Heerdt v. Wetmore, 2 Robt. 697. 
 
 Civil and criminal contempts; distinction. — Revised Statutes dis- 
 tinguished, ana the Code of Civil Procedure preserves the distinction 
 between criminal contempts and proceedings as for contempts in civil 
 actions. As it respects disobedience to the orders of the court, the 
 sole difference appears to be that a willful disobedience is a criminal 
 contempt, while a mere disobedience by which the right of a party is 
 defeated or hindered is treated otherwise. People v. Dwyer, 90 X. Y. 
 407, 2 Civ. Proc. Rep. 379. 
 
 Civil contempts; punishment. — The proceedings to punish for civil 
 contempts under section 8 of this act (being the same as section 14 
 of the Code of Civil Procedure) would be provided for by title III, 
 sections 2266 to 2292 of the Code of Civil Procedure, but by section 
 2266 of said Code these sections apply to courts of record, and 
 there is no provision in the present act making them applicable to this 
 court, except perhaps by section 20. 
 
 Commitment; requisites of the. — Must designate the particular mis- 
 conduct of which the defendant is convicted. De Witt v. Dennis, 30 
 How. Pr. 131. And see Code Civ. Proc, § 2874. 
 
 A commitment for contempt in not delivering possession of property 
 pursuant to order of court must show on its face that the person com- 
 mitted had possession or control of the property. After a commitment 
 has been adjudged void, on habeas corpus, the papers on which it was 
 granted are functus officio, and a new motion should be made if a new 
 commitment is sought. People ex rel. Walter v. Conover, 15 Abb. N. S. 
 430. 
 
 On a refusal to answer a material question, it must appear by the 
 warrant of commitment or by the evidence that an oath was made of 
 the materiality of the testimony. Rutherford v. Holmes, 66 N. Y. 368.
 
 100 Contempt of Coukt. §£ 4, 5, 6, .. 
 
 Court; keeping it open. — The justice has power to hold the court open 
 for the return of an attachment against the witness. Board of Excise 
 v. Sackrider, 35 N. V. 154. 
 
 Court must issue the n andate for contempt, and not a judge of the 
 court. People v. Gilmore, 26 Hun, 1 ; s. c, 88 N. Y. 626. 
 
 Definitions. — For a definition of the word " mandate " in these sec- 
 tion-, see § 3343, subd. 2; for "judge," see subd. 3; for "action," see 
 § 3333 ; and for the definition of the words " special proceedings," see 
 Code Civ. Proc., § 3334. 
 
 Disorderly behavior. — The powers of justices are ample to repress 
 and punish disorderly behavior in their courts, whether proceeding 
 from a party or his counsel or a bystander. Onderdonk v. Ranlett, 3 
 Hill, 323. 
 
 Docket. — The validity of conviction is not affected by the omission 
 of the justice to enter in his docket the minute thereof made up by 
 him. Robins v. Gorham, 25 N. Y. 588, affg. s. c, 26 Barb. 586. 
 
 Excuse. — That the order disobeyed was erroneously granted is no 
 excuse for disobedience of the same. The party who disobeys the order 
 is guilty unless it is void on its face from an utter want of jurisdic- 
 tion. Erie Ry. Co. v. Ramsey, 45 X. Y. 637, affg. 3 Lans. 178; Higbie 
 v. Edgerton, 3 Paige, 253; Smith v. Reno, 6 How. 124; Arctic Fire 
 Ins. Co. v. Hicks, 7 Abb. 204; Sullivan v. Judah, 4 Paige, 444; 
 (1 rim in v. Grimm, 1 E. D. Smith, 190; People v. Bergen, 53 N. Y. 404, 
 15 Abb. N. S. 97; People v. Sturtevant, 9 X. Y. 263, affg. 1 Duer, 
 512; People ex rel. Garrett v. Ruck, 76 X. Y. 294. 
 
 The direction of a third person does not protect a party from punish- 
 ment. Erom v. Hogan, 4 How. 225. Though it may be considered 
 as bearing upon the extent of the punishment. Matter of Fitton, 16 
 How. 303. 
 
 As to constructive resistance by orders given to a servant, etc., see 
 People v. (lilmore, 26 Hun. 1; s. c., 88 N. Y. 626. 
 
 False swearing; perjury; sureties. — A surety to an undertaking who 
 falsely swears that he is worth double the penalty of the undertaking 
 is guilty of perjury, which is a contempt of court, and may be pun- 
 ished therefor by a fine sufficient to indemnify the defendant for the 
 loss and injury he has sustained thereby, and by imprisoning him for 
 six months and until the fine is paid. Stephenson v. Hanson, 6 Civ. 
 Proc. Rep. 43; Eagan v. Lynch, 3 Civ. Proc. Rep. 236. 
 
 Falsely justifying as surety on order of arrest punishable as a con- 
 tempt. Keating v. Goddard, 8 Civ. Proc. Rep. 377. 
 
 One who becomes surety upon an undertaking on appeal, knowing 
 that he is insolvent, and with no expectation of paying the liability 
 thus incurred, is guilty of a contempt of court, in putting in a fictitious 
 surety, and may be punished therefor, although he is not a party to 
 the action. Simon v. Aldine Pub. Co., 14 Daly, 280, affg. 8 1ST. Y. St. 
 Rep. 334.
 
 §§ 4, 5, 6, 7. Contempt of Court. 101 
 
 In a proceeding to punish a surety for contempt in swearing falsely 
 as to his property on justification, the burden of proof rests on the 
 plaintiff and is not shifted by an attack on his proof in denial of the 
 charge. Schmidt v. Livingston, 20 Misc. Rep. 324, 45 N. Y. Supp. (79 
 St. Rep.) 915, affg. 19 Misc. Rep. 353, 43 N. Y. Supp. 494. 
 
 False justification of a surety on an indemnity bond is not punish- 
 able as a contempt under section 14 of the Code in favor of a person 
 not a part}- to the action whose property has been levied upon by the 
 sheriff under an attachment, and who subsequently sues for conversion. 
 Schrieber v. Raymond & Campbell Mfg. Co., 18 App. Div. 158, 26 Civ. 
 Proc. Rep. 290; Schrieber v. Sanford, 45 N. Y. Soipp. 442. 
 
 One who offers himself as a surety knowing himself to be insolvent, 
 and with no expectation of paying the liability thus incurred, is guilty 
 of contempt and may be punished. Nathans v. Hope, 5 Civ. Proc. Rep. 
 401. See contra, Noricood v. Ray Mfg. Co., 11 Civ. Proc. Rep. 273. 
 
 A fraudulent surety on a bail bond may be punished when he at- 
 tempts to justify and is shown incompetent and worthless. Diamond 
 v. Knoepel, 3 N. Y. St. Rep. 291. 
 
 An owner of premises who procures the discharge of a mechanic's 
 lien by giving a bond with sureties whom he knows to be insufficient 
 to justify is guilty of contempt of court, and may be punished by a fine 
 equal to the amount of the bond. McAveney v. Brush et al., 13 Misc. 
 Rep. 79; s. c, 1 App. Div. 97. 
 
 The making of a false affidavit as to his sufficiency by a surety upon 
 a bond given to discharge a mechanic's lien is a contempt of court 
 though he was not examined at the time of his justification, and will 
 be punished accordingly. Matter of Sheppard, 33 Misc. Rep. 724. 
 
 A surety on an appeal bond who make false affidavit as to his re- 
 sponsibility, in order to deceive the court under section 14 of the Code 
 of Civil Procedure, is guilty of contempt. Buffalo Loan Co. v. Medina 
 Qas Co., 68 App. Div. 414. 
 
 False verification of answer. — A false verification of an answer is 
 not punishable as a contempt of court. Hoffat v. Herman, 1 N. Y. St. 
 Rep. 97, 8 Civ. Proc. Rep. 369; affd., 116 N. Y. 131, 26 N. Y. St. Rep. 
 329, 17 Civ. Proc. Rep. 357. 
 
 The interposition, by a party to an action, of a false verified answer, 
 is not a " deceit or abuse of a mandate or proceeding of the court," 
 within the meaning of subdivision 2 of section 14 of the Code of Civil 
 Procedure, and therefore is not punishable as a contempt. Fromme v. 
 Gray, 148 N. Y. 695; s. c, 14 Misc. Rep. 592. See also People v. Tarn- 
 sen, 17 Misc. Rep. 212. 
 
 Furnishing false testimony. — The conduct of an " accident ad- 
 juster,'' employing his time in discovering accidents and in inducing 
 the injured to go to a lawyer of his selection in furnishing to proposed 
 witnesses for the plaintiff, in an accident predicated on the negligence 
 of a street railway corporation, typewritten statements of false testi-
 
 102 Contempt of Court. §§ 4, 5, 0, 7. 
 
 mony which they were to give upon the trial, is strongly to be con- 
 demned; but where the defendant succeeded upon the trial, the court 
 considered that a motion to punish the " accident adjuster ' for a civil 
 contempt, under section 14 of the Code of Civil Procedure, must be 
 denied, as his conduct could not be said to have defeated, impaired, 
 impeded, or prejudiced the right of the defendant. Noster v. Metro- 
 politan St. Ry. Co., 30 Klisc. Rep. 722. 
 
 Juror; misconduct of. — Where, during a criminal trial, a juryman 
 went during recess to the scene of the affray without the permission of 
 the court, for the purpose of acquainting himself with the locality and 
 surroundings, he is not guilty of a criminal contempt for which he 
 would be summarily punished by the court. People v. Oyer and Ter- 
 miner, 101 N. Y. 245, 3 How. N. S. 413. 
 
 Where the juror makes default in attendance, he may summarily be 
 brought before the court for punishment. Robbins v. Uorham, 25 N. Y. 
 588; Board of Excise v. Sackrider, 35 N. Y. 154. 
 
 Marshal. — It seems that a sheriff who refuses to receive a warrant of 
 attachment delivered to him on a Sunday afternoon, and promises, but 
 fails, to go himself or send a deputy to see one of the plaintiff's attor- 
 neys later in the day, is guilty of contempt. Dailey v. Fenton, 47 App. 
 Div. 418, 62 N. Y. Supp. (96 St. Rep.) 337. 
 
 Misnomer. — A person whose name is wrongfully stated will not be 
 adjudged in contempt for failing to obey an order, though he is not the 
 person intended, if he has not appeared in the action. Muldon v. Pierz, 
 1 Abb. N. C. 309. 
 
 Failure to repay into court money paid to defendant under a judg- 
 ment, when so ordered upon a reversal of the judgment, is a contempt 
 which may be enforced by commitment. Devlin v. Hinman, 40 App. 
 Div. 101. 
 
 Nonpayment of money. — Disobedience of an order requiring the pay- 
 ment of money into court, or to an officer thereof, except where it is 
 due upon contract, or for a breach thereof, may be punished as for a 
 contempt, although the amount thereof could be collected upon execu- 
 tion. People ex rel. Pond v. Tamsen, 15 Misc. Rep. 365. 
 
 Order; requisites of; adjudication, etc. — An order adjudging a party 
 guilty of a civil contempt which omits to state that it had been deter- 
 mined that the misconduct defeated, impaired, impeded, or prejudiced 
 the rights or remedies of the other party to the proceedings is fatally 
 defective. Wolfe et al. v. Knight, 15 Misc. Rep. 438. 
 
 To warrant punishment for contempt in disobeying a judgment or 
 order, the mandate must be clearly expressed, so that it may appear 
 with reasonable certainty that it has been violated. Ketchum v. Ed- 
 wards, 1 •'.:'> X. Y. 534, revg. 6 App. Div. 160. 39 N. Y. Supp. 1012. 
 
 An order punishing a person for a civil contempt which does not 
 adjudge that he committed the act claimed to constitute the contempt, 
 or that such act was calculated to, or actually did, defeat, impair,
 
 $§ 4, 5, 0, 7. Contempt of Coubt. 103 
 
 impede, or prejudice the rights or liabilities of the moving party, is 
 fatally defective. Dailey v. Fcnton, 47 App. Div. 418, 62 N. Y. Supp. 
 (96 St. Rep.; 337. 
 
 An order punishing a party for contempt in a civil action must 
 •contain an adjudication that he is guilty of a contempt, and also that 
 his act not only has a tendency to, but actually does, defeat, impair, 
 impede, or prejudice the rights or remedies of the party complaining; 
 and a mere recital that the answer is stricken out " for the willful and 
 •contumacious disobedience of the defendants of the order of injunction 
 herein, dated September 1, 1890, and for their contempt of this court," 
 is insufficient. Socialistic Co-operative Pub. Co. v. Kuhn, 51 App. Div. 
 583, 64 N. Y. Supp. (98 St. Rep.) 933. 
 
 Order; service of; failure to obey. — To authorize punishment of a 
 party for contempt in disobeying an order, such order must have been 
 served upon him personally. Hatter of Seibert, 30 Misc. Rep. 680. 
 
 Out of sight of the judge. — A contempt committed in the presence 
 of the jury while deliberating upon their verdict, out of the sight and 
 hearing of the judge, is in law committed in the presence of the court. 
 People v. Barrett, 30 N. Y. St. Rep. 728, 18 Civ. Proc. Rep. 230. 
 
 Where a contempt has been committed in the presence of the court, 
 but which the judge has failed to see, he is not obliged to proceed 
 thereon without proofs or process, and the proofs must be presented to 
 him in a legal and formal manner. People v. Barrett, 56 Hun, 351. 
 
 Perjury is a contempt and may be punished as such. Lagan v. Lynch, 
 3 Civ. Proc. Rep. 236. See also " False Swearing," above. 
 
 Punishment. — Under Code Civ. Proc, § 2284, the court may limit the 
 punishment for contempt to a fine alone, though the act refused to 
 be performed be one which it is still in the power of the offender 
 to do, ana if the order of commitment does not direct the imprison- 
 ment of the prisoner for any time whatever after payment of the fine, 
 the sheriff may properly discharge him after the expiration of six 
 months. Hommcl v. Buttling, 46 App. Div. 206. 
 
 Evidence of loss; punishment. — Where the fine imposed was not 
 Tinder the statute (Code Civ. Proc, § 2284), but simply an indemnity 
 for plaintiff's loss, of which there was no evidence, — Held, that the order 
 should be reversed. Donohue v. Lyons, 30 App. Div. 622. See also 
 Burnham v. Denike, 53 App. Div. 407, 65 N. Y. Supp. 1028. 
 
 Stay of proceedings; disregard of, contained in an order to show 
 caues why an amendment of pleadings should not be allowed, by mov- 
 ing the case for trial at the term for which it had been noticed, is a 
 contempt of court. Oakley v. Cokalete, 20 Misc. Rep. 206; revd., 16 
 App. Div. 65, 44 N. Y. Supp. (78 St. Rep.) 1070. See also Sheffield v. 
 Cooper, 21 App. Div. 518. 
 
 Stenographer may be punished for contempt for wrongfully refusing 
 to deliver a copy of his minutes unless paid in excess of the statutory 
 rate. Cavanagh v. O'Neill, 20 Misc. Rep. 233.
 
 10-i Contempt of Court. §§ 4, 5, 6, 7. 
 
 Subpoena. — Refusal' of party to action under subpoena to produce 
 paper may be punished as a contempt, Shelp \. Morrison, 13 Hun, 110. 
 
 Summary commitment. — Where a contempt has been committed in 
 the presence of tin- court, creating a disturbance ami disobedience of 
 the orders of the court, an alternative order is not necessary, but the 
 court may commit the offender summarily. Matter of Falkenberg v. 
 Frank, 20 Misc. Rep. 69: 1 ; s. c. Falkenberg v. Frank, 45 N. Y. Supp. 
 (79 St. Rep.) 1126. 
 
 Technical contempt. — The court may hear a motion although the 
 moving party is in technical contempt of court, as the court has the 
 right to forgive or overlook such contempt if neither party is injured 
 thereby. Whitman v. Johnson, 10 Misc. Rep. 730; People ex rel. Bald- 
 win v. Miller, 9 Misc. Rep. 1. 
 
 Witness or juror; refusal to attend, or to be sworn, or to answer a 
 material question. — The summary proceeding for the punishment of a 
 defaulting witness or juror may be had after the termination of the 
 suit in which the default occurred. The justice may issue a warrant 
 to bring the offender before him. A previous summons is unnecessary. 
 A process commanding the officer to attach the defaulting juror and 
 bring him before the justice is a warrant in substance, and sufficient. 
 Robbins v. Gorham, 25 X. Y. 588; Board of Excise v. Sackridcr, 35 
 N. Y. 154. 
 
 The contumacious and unlawful refusal of a person who has been 
 sworn as a witness to answer any legal and proper interrogatory may 
 be punished criminally or civilly. People v. Davidson, 35 Hun, 471. 
 
 And so failure to attend after tender of fees. Andrews v. Andrews, 
 2 Johns. Cas. 109; Code Civ. Proc, § 853. 
 
 In order to give the court jurisdiction to punish a witness for con- 
 tempt for refusing to answer a proper and pertinent question, there 
 must be an oath of the party, at whose instance he attended, of the 
 materiality of the testimony (2 R. S. 274, § 279), and a justice is 
 liable in an action for false imprisonment at the suit of one imprisoned 
 under and in pursuance of his warrant of commitment for such a con- 
 tempt, where it does not appear in the warrant or by the evidence that 
 such an oath was made. 
 
 It is immaterial that the witness was a party sworn in his own be- 
 half, that the question he refused to answer was asked upon cross- 
 examination, and that it was therefore impossible to meet the require- 
 ments of the statute ; this does not authorize a disregard of it. 
 
 It seems that in case of such refusal to answer, the remedy of the 
 opposite party is to move to strike out the direct examination. Ruther- 
 ford v. Holmes, 66 N. Y. 368. 
 
 Where the witness admits his refusal to answer questions and seeks 
 to justify, the filing of interrogatories is unnecessary. Clapp v. Lathrop, 
 14 Abb. Pr. 423.
 
 §§ 9, 10. Process ; Where Service May be Made. 105 
 
 Immaterial and irrelevant question. — Cannot be punished for con- 
 tempt, for refusal to answer a question immaterial or irrelevant to the 
 issue upon the trial whereof he is examined. Matter of Odell, 6 Den. 
 344. 
 
 Willful contempt mandate must be signed by court. — To render a 
 person guilty of a contempt, the mandate must have been issued by 
 the court and not a judge thereof. People v. Gilmore, 26 Hun, 1 ; s. c, 
 88 N. Y. G26. 
 
 § 9. Process; where service may be made. — The court shall 
 have power to send its process and other mandates in an 
 action or special proceeding of which it has jurisdiction to 
 any part of the city of New York for service or execution, 
 and to enforce obedience thereto, and the power and au- 
 thority of said court extends to the whole of said city of New 
 York, without limitation, except as expressly prescribed in 
 this act. 
 
 Notes to section 9. 
 
 This section is substantially section 1368 of the Charter (Laws 1897, 
 chap. 378, as amended in 1901), and part of it is taken from section 
 1369 of said Charter. 
 
 It makes plain the jurisdiction of the court as to the service of 
 process in the five boroughs of the city of New York, whose territorial 
 extension and limits under the Charter are contained in sections 1 
 and 2 thereof. 
 
 Mechanic's lien action. — In an action to enforce a mechanic's lien 
 against real property brought in a court not of record, it shall be com- 
 menced by the personal service upon the owner, anywhere in the state, 
 of a summons and complaint. See § 3404, Code Civ. Proc., which was 
 added by Laws 1897, chap. 419. 
 
 § 10. Justice to administer oaths, et cetera. — The justices 
 of said court may, in the city of New York, by virtue of 
 their office, administer oaths, take depositions and acknowl- 
 edgments, and certify the same in the manner and with like 
 effect as justices of courts of record. 
 
 Notes to section 10. 
 
 This section is substantially the same as section 1379 of the Charter 
 of 1897, as amended in 1901, which applied sections 914 to 917 and 
 section 3319, Code of Civil Procedure, to the justices of this court,
 
 10G Justice to Administeu Oaths, Etc. £ 10. 
 
 giving them the same power to administer oaths as justices of courts 
 of record as now stated in this section. 
 
 The sections of the Code of Civil Procedure above specified are aa 
 follows : 
 
 IN WHAT CASES DEPOSITIONS MAY BE TAKEN. 
 § 914. Code of Civil Procedure. — A party to an action, suit or spe- 
 cial proceeding, civil or criminal, pending in a court without the State, 
 either in the United States, or in a foreign country, may obtain, by the 
 special proceeding prescribed in this article, the testimony of a witness 
 and in connection therewith, the production of books and papers within 
 the State to be used in the action, suit or special proceeding. 
 
 Note. 
 
 The article referred to in this section is article 3, title 3, chapter 9, 
 entitled " Depositions taken within the State, for use without the 
 State." 
 
 SUBPCENA TO WITNESS. 
 
 § 915. Code of Civil Procedure. — Where a commission to take testi- 
 mony, within the State, has been issued from the court, in which the 
 action, suit, or special proceeding is pending; qr where a notice has 
 been given, or any other proceeding has been taken, for the purpose of 
 taking the testimony, within the State, pursuant to the laws of the 
 State or country, wherein the court is located, or pursuant to the laws 
 of the United States, if it is a court of the United States. The Su- 
 preme Court, or the County Court, or a judge of either court, shall in 
 a proper case, on the presentation of a verified petition, issue a sub- 
 poena to the witness, commanding him to appear before the commissioner, 
 named in the commission; or before a commissioner, within the state, 
 for the state, territory, or foreign country, in which the notice was 
 given, or the proceeding taken; or before the officer designated in the 
 commission, notice, or other paper, by his title of office; at a time and 
 place specified in the subpoena, to testify in the action, suit, or special 
 proceeding. If the witness shall fail to obey the subpoena, or refuse to 
 have an oath administered, or to testify, or to produce a book or paper 
 pursuant to a subpoena, or to subscribe his deposition, the court or 
 judge issuing the subpoena shall, if it is determined that a contempt has 
 been committed, prescribe the punishment as in the case of a recalcitrant 
 "witness in the Supreme Court. The general rules of practice must pre- 
 scribe rules for such proceedings. 
 
 Sections 91u, 917, 918 were repealed by Laws 1899, chap. 502. 
 
 § 919. Code of Civil Procedure. — The officer, or commissioner, be- 
 fore whom a witness appears, in a case specified in this article, must 
 take down his testimony, in writing, and must annex thereto copies of 
 all books and papers produced or such parts thereof as shall be required,
 
 § 11. Board of Justices. 107 
 
 and must certify and transmit it to the court in which the action, suit, 
 or special proceeding is pending, as the practice of that court requires. 
 
 WITNESS FEES ON DEPOSITION TO BE USED IN ANOTHER STATE. 
 § 3319. Code of Civil Procedure. — A witness, attending before a com- 
 missioner or ai. officer, authorized to take his deposition to be used 
 without the State, in a case other than one specified in section 3327 of 
 this act, is entitled to two dollars for each day's actual attendance, and 
 to eight cents for each mile going to the place of attendance. 
 
 Code Civil Procedure, section 332, is as follows: 
 
 Justice's court; witness fees. — A witness is entitled to twenty-five 
 cents for each day's actual attendance, before a justice of the peace in 
 an action or special proceeding, or before a commissioner appointed by 
 a justice of the peace, or before a justice of the peace taking a deposi- 
 tion to be used in a court not of record, of another State, or a terri- 
 tory of the United States. 
 
 § 11. Board of justices. — The justices of said court shall 
 constitute the board of justices of the municipal court and 
 discharge the functions thereof. They may elect a presi- 
 dent from their own number and at pleasure remove him and 
 elect a successor. All meetings of said board shall be public 
 and all proceedings shall be recorded in its books of minutes, 
 by its secretary and shall be preserved. Such board may 
 designate a clerk of said court for one of said districts to act 
 as secretary of said board, and from time to time substitute 
 another and fix a compensation to be paid for such service, 
 not exceeding the sum of five hundred dollars per annum. 
 Such board shall establish public rules relative to its meet- 
 ings, which as far as possible shall be held at regular times, 
 to the keeping and preservation of its minutes and to the 
 public inspection of the same under the care of the secretary 
 at reasonable times. 
 
 Notes to section u. 
 
 This section is substantially the same as section 13/4 of the Charter 
 of 1897, as amended in 1901, with the exception of the reference to 
 the appointment of clerks, etc., in the public rules which the board 
 shall make as that matter is provided for in section 1373 of the said 
 Charter, which has been left unrepealed, and undisposed of in this act, 
 but preserved as a Charter enactment. It should be observed and re- 
 membered that all meetings of the board shall be public, for which 
 it shall establish rules, which as far as possible shall be held at
 
 108 Board to Make Rules. §12. 
 
 regular times, and the minutes of the board may be inspected by the 
 public. 
 
 By section 14 the concurrence of a majority of the board shall be 
 necessary to adopt any resolution thereof. 
 
 § 12. Board to make rules.— Said board of justices shall 
 adopt, and from time to time may amend or add to rules 
 relating to the f ollowing subjects : 
 
 1. As to the hours at which court shall be opened on each 
 day, and what officers shall be in attendance. 
 
 2. As to the order of business and manner of its discharge. 
 
 3. As to the manner in which the clerks, assistant clerks, 
 stenographers, interpreters, attendants and employees, shall 
 perform their duties, the manner of keeping records and 
 papers, the collection and disposition of moneys and keeping 
 accounts of the same. 
 
 4. As to the maintenance of order in and about the courts 
 and offices thereof. 
 
 5. As to the forms and practice in said court. 
 
 Notes to section 12. 
 
 This section is constructed from section 1375 of the Charter (Laws 
 1897, chap. 378, as amended in 1901) omitting the making of the 
 rule for a rotation of the justices in holding court, and assigning them 
 to the different courts. By the next section the justice is to regularly 
 hold court in the district for which he was elected or appointed. In 
 addition to the rules required to be made by the board by this section 
 the board is also required by the preceding section 11 to establish 
 " public rules " relating to its meetings, which perhaps should have 
 been included in this section. 
 
 By section 14 the concurrence of a majority of the board shall be 
 necessary to adopt any resolution thereof. 
 
 Fees. — This section, authorizing the board to make rules as to 
 the hours and order of business, does not empower them to create and 
 exact fees, and therefore a rule by such board requiring plaintiff to 
 pay a fee of two dollars before judgment entered or before issue is 
 joined, or the case put on the calendar and called, to be refunded in 
 case issue is not joined, is void, and a plaintiff who had filed a verified 
 complaint for goods sold, defendant being in default, was entitled to 
 mandamus to compel the entry of judgment without the payment of 
 such fee. In re Hale, 32 Misc. Rep. 104 ; s. c, 65 N. Y. Supp. 449. 
 
 Pursuant to section 12 the board of justices adopted the following 
 rules to take effect September 1, 1902:
 
 Rules of Practice. 109 
 
 RULES OF PRACTICE. 
 
 (Adopted June 19, 1902.) 
 
 I. Court shall be held in each district on Monday, Tuesday, 
 "Wednesday, Thursday, and Friday of each week, except in those 
 districts where the justice elected or appointed therein shall 
 otherwise direct, 
 
 II. Court shall be opened at 10 o'clock, a. m. 
 
 III. The order of business in each court shall be as follows: 
 
 1. Summary proceedings. 
 
 2. Adjourned causes. 
 
 3. Eeturned causes. 
 
 4. Inquests. 
 
 5. Motions. 
 G. Trials. 
 
 IV. To entitle a cause to a place on the calendar, the sum- 
 mons must be returned with proof of service thereof to the 
 clerk's office, and the calendar fee paid the day before the 
 return day of the summons. 
 
 V. Where a plaintiff appears by attorney, the summons, un- 
 less a complaint is filed therewith, shall be indorsed with the 
 name and address of the attorney for the plaintiff and a brief 
 statement of the cause of action. Such indorsement shall be 
 deemed an appearance within section 332 of the Municipal 
 Court Act. Other process, pleadings, and writings shall also 
 be appropriately indorsed. 
 
 VI. When a bill of particulars is ordered, the same shall 
 be filed in the clerk's office within three days after such order 
 is made. 
 
 VII. When a jury is demanded, the jury fee shall be forth- 
 with paid to the clerk of the court by the attorney, or party 
 making such demand. The jury shall be publicly drawn by 
 the clerk from the panel under the supervision of the justice. 
 Each additional venire requires an additional jury fee, but 
 only the fee originally paid can be included as part of the 
 costs in the judgment under section 238 of the Municipal Court 
 Act. 
 
 VIII. If the original summons, or other process, or mandate 
 of the court is not returned to the office of the clerk the 
 court may indorse a dismissal of the action or proceeding upon 
 the copy of such summons, mandate, or process, or grant other 
 appropriate relief, and award costs in proper cases, and such 
 copy summons, mandate, or process with such indorsement shall 
 thereupon be filed with the clerk of the court, and shall have 
 the same effect as if the original had been so indorsed and
 
 110 Rules of Practice. 
 
 filed, provided proof of service is made or written notice of 
 appearance by an attorney is filed. 
 
 IX. Open an application for an order removing an action 
 to the City Court. County Court, or Supreme Court, as the 
 case may be, the sureties upon the undertaking must attend 
 and justify as to their sufficiency on the day of the presenta- 
 tion of the undertaking unless such justification is waived or 
 adjourned by the court or by consent, or the undertaking is 
 given by a duly authorized surety company. 
 
 X. The clerk shall not place a cause upon the calendar for 
 trial on a day agreed upon in a stipulation unless such stipu- 
 lation is approved by the justice in the district in which the 
 action is pending. 
 
 XI. Causes set down for trial must be tried when reached 
 unless legal grounds exist for an adjournment. 
 
 XII. Only one adjournment shall he granted in actions in 
 which the amount claimed in the summons does not exceed 
 $50, unless the justice for good cause shown shall otherwise 
 direct. 
 
 XIII. Calendar or other fees paid to the clerk are in no case 
 to be returned. 
 
 XIV. Motions may be brought on for hearing on not less 
 than three days' notice unless otherwise provided by law. 
 
 XV. Ex parte applications may be made to any justice with- 
 out regard to the district in which the action or proceeding 
 is pending, or about to be commenced: the affidavit shall how- 
 ever state whether any previous application has been made, and 
 if made, to what justice and what order or decision was made 
 thereon, and what new facts, if any, are claimed to be shown. 
 1; .-hall a!-" state the residences of the parties. For failure 
 to comply with this rule any order made, on such application 
 may be revoked or set aside. The denial of an ex parte 
 application with the reason therefor may be indorsed thereon 
 by the justice to whom the same is presented. 
 
 XVI. Xo approval of an undertaking given by a party or 
 claimant to procure the discharge of a levy under an attach- 
 ment shall be granted ex parte. The party or claimant apply- 
 ing for such approval shall give at least two days' notice of 
 justification to the adverse party. 
 
 XVII. A >tipulation to extend the time of the court within 
 which to render a judgment or make a decision may be entered 
 into between parties or their attorneys on the record in the 
 minutes of a trial, or in a written stipulation signed to that 
 effect.
 
 Rules Relative to Cleeks, Etc. Ill 
 
 XVIII. Affidavits of service of process must in all cases 
 comply strictly with the provisions of rule XVIII of the 
 Supreme Court Rules. 
 
 XIX. Costs shall not be awarded to a defendant who ap- 
 pears by attorney when there are no verified pleadings, unless 
 a written notice of appearance is filed. 
 
 XX. The phrase "case on appeal" in sections 317 and 318 
 of the Municipal Court Act shall be deemed to refer simply 
 to the justices' return on appeal as the same has been here- 
 tofore known. The phrase " including the evidence " shall 
 be deemed to include all exhibits admitted in evidence. 
 
 XXI. In cases where attorneys may be represented by clerks, 
 the clerk or clerks so appearing shall be only those whose cer- 
 tificates of clerkship shall have been filed in the office of the 
 clerk of the Court of Appeals. 
 
 RULES RELATIVE TO CLERKS AND ATTENDANTS. 
 
 I. The clerk, assistant clerk, interpreter, and attendants of 
 each court shall attend each day from 9 o'clock, a. m., to 4 
 o'clock, p. m.j and at such other times as the justice may 
 direct, except as otherwise provided by law. The stenographer 
 shall be in attendance during the sessions of the court, and 
 at such other times and places as the justice may direct. 
 
 II. The attendants shall maintain order in and about the 
 court and the offices thereof. 
 
 III. The attendants and interpreter shall wear an official 
 badge during the session of the court. 
 
 IV. During the session of the court the clerk thereof, or, 
 in his absence, the assistant clerk, shall be in attendance 
 therein, administer oaths, keep minutes and receive the ver- 
 dict of a jury, and when not so employed the time of the 
 clerk and assistant clerk shall be devoted to the business of 
 the clerk's office. 
 
 V. The clerk of each court, or, in his absence, the assistant 
 clerk, shall, on or before the third day of each month, make 
 a statement in writing, duly verified by his oath, of moneys 
 received for fees by him, as such clerk, during the preceding 
 month, and on or before the day named pay into the finance 
 department of the city of Xew York all such moneys received 
 by him for the use, or on behalf of the city, for the preceding 
 month as required by law. A summary thereof shall there- 
 upon be filed with the secretary of the board of justices to- 
 gether with a detailed statement of the business of the court 
 for the previous month.
 
 112 Court; by Whom Held, Etc. §§13,14. 
 
 VI. The clerks and assistant clerks shall keep and preserve 
 full, correct, and true records of the proceedings of the court 
 and of their office, properly tile and preserve all process, plead- 
 ings, mandates, or other papers, deposit in bank all moneys paid 
 to them, keep accurate accounts thereof, and shall faithfully 
 perform the duties imposed upon them by chapter 580 of the 
 Laws of L902. 
 
 VII. When moneys are paid to persons other than parties or 
 their attorneys the clerks shall require and file in their offices 
 a written request from the party or the attorney entitled to 
 such moneys to authorize such payment, and a receipt therefor. 
 
 § 13. Court; by whom held. — A justice of the municipal 
 court of the city of New York shall hold court in the dis- 
 trict for which he was elected or appointed to fill a vacancy, 
 hut if a vacancy exists or the illness or inability of any jus- 
 tice prevents his attendance any other justice of said court 
 may hold court in said district and, if at any time before or 
 after the commencement of the trial, it shall appear to the 
 satisfaction of the justice that lie is a necessary witness in 
 the trial of the cause, or otherwise disqualified to try the 
 same, he shall, by an order entered in the cause, order the 
 same and the papers in the same to be transferred to an ad- 
 joining district. 
 
 Note to section 13. 
 This section is constructed from part of section 1375 of the Char- 
 ter (Laws 1897, chap. 378, as amended in 1901). "Board to make 
 rules," which is now the title and subject-matter of section 12 of this 
 act. See notes to § 12. By said section 1375 the board of justices 
 were required to make rules as to which of the justices was to hold 
 court in the different districts, and to provide for a rotation of the 
 justices holding court. This has been abolished, and the justice now 
 continues to hold court in the district for which the people elected him. 
 
 § 14. Concurrence of majority.— The concurrence of a ma- 
 jority of all the members of said board shall be necessary to 
 adopt any resolution thereof. 
 
 Note to section 14. 
 
 This section is the same as section 1376 of the Charter (Laws 1897, 
 chap. 378, as amended in 1901).
 
 §§ 15, 16. Actions May be Continued, Etc. 113 
 
 § 15. Actions may be continued before another justice. — 
 The trial of an action or special proceeding may be con- 
 tinued from day to day, or from one day to any other day 
 or days until the same is finished. A special proceeding- 
 commenced before one justice may be continued before any 
 other justice having jurisdiction of the subject-matter, the 
 same as though it had been originally commenced before 
 him. A transcript of any proceedings had before either of 
 said justices, or of any paper filed with the clerk, or of the 
 minutes of any testimony taken by or before said justice, 
 certified by the clerk or said justice to be correct, shall be 
 presumptive evidence of the facts therein contained. 
 
 Notes to section 15. 
 
 This section is taken from the old District Court Act (Laws 1857, 
 chap. 344, latter part of § 78), except the word " clerk" is substituted 
 for the word " justice," and was section 1387 of the Consolidation Act 
 (Laws 1882, chap. 410). 
 
 The heading of this section omits any mention of " Transcripts of 
 proceedings, paper, or minutes," which is the subject of the second 
 half thereof and which formed part of the heading of section 1387 of 
 the said Consolidation Act. 
 
 It must be observed that only a " special proceeding " and not " an 
 action" may be continued before another justice; "an action" is not 
 included. 
 
 Conduct of trial.— See § 240. 
 
 § 16. Death or removal of justice not to impair proceedings, 
 et cetera. — Xo process, action, judgment, execution or pro- 
 ceeding shall abate or be discontinued by reason of the death, 
 removal from office, or vacancy in office of any justice, but 
 the respective successor in office of the said justice shall pro- 
 ceed to hear, try, determine and give judgment in and upon 
 the same, and upon all matters and things pending before 
 and undecided or not acted upon or indorsed by their pre- 
 decessors in office, with the same powers, jurisdiction, and 
 authority, as their predecessors had. 
 
 Notes to section 16. 
 
 This section i9 taken from the old District Court Act (Laws 1857, 
 chap. 344). It is substantially the same as section 1390 of the Con- 
 
 8
 
 114 Court; Wiikkk Held. §17. 
 
 Bolidation Act (Laws 18S2, chap. 410), which was not repealed by the 
 Charter, hut is now repealed by this act. 
 
 By this section the successor of a justice has power to finish any 
 matter or thin^ pending before or left undecided by his predecessor 
 when out of office from any cause. 
 
 Term of office; finishing trial after. — A justice has no jurisdiction 
 to finish the trial of a case, or to decide it, after the expiration of his 
 term of office. The consent of the parties cannot give him power to 
 do this. In re Rudding, 14 Civ. Proc. Rep. 47; Rudding v. Kane, 14 
 Daly, 535, 16 N. Y. St. Rep. 677; Ovis v. Curtis, 28 N. Y. Supp. 728. 
 
 The successor of a justice whose order lias been reversed may rehear 
 the motion and make a new order, containing the appropriate recital 
 under section 1390 of the Consolidation Act as to the succession. Stem 
 v. Knapp, 48 App. Div. 482, 62 N. Y. Supp. 982. 
 
 Returns to writs may be made by the justice after he is out of office,, 
 and they are valid. Harris v. Whitney, 6 How. Pr. 175; Conover v. 
 Develin, 15 How. Pr. 470; s. c, 6 Abb. Pr. 228. 
 
 § 17. Court; where held. — The said court shall be held in 
 each of the districts by a justice of said court, at the places 
 provided by the commissioners of the sinking fund, and in 
 accordance with law, at such hours in every judicial day or 
 so often as the board of justices of the municipal court 
 shall direct, and must continue in session so long as the 
 public interest requires; and it shall be the duty of the com- 
 missioners of the sinking fund to provide a suitable place 
 for the holding of said court in each of said districts, pro- 
 vided that more than one place for holding such court may be 
 provided at any time after this act takes effect in any district, 
 if the said board of justices shall certify that the public con- 
 venience requires such additional number of places. 
 
 Notes to section 17. 
 
 This section is substantially the same as section 1371 of the Charter 
 (Laws 1897, chap. 378, as amended in 1901), which superseded section 
 1291 of the Consolidation Act (Laws 1882, chap. 410), with the ex- 
 ception of the provision that the commissioners of the sinking fund 
 are now to provide suitable places for holding the court, instead of 
 the Municipal Assembly, the latter having been abolished by the Charter, 
 a3 amended in 1901. See also § 19, and notes. 
 
 Clerk to keep his office open. — By section 282, subdivision 9, of this 
 act, the clerk must keep his office open for the transaction of business
 
 §17. Court; Where Held. 115 
 
 every judicial day, from 9 o'clock in the forenoon to 4 o'clock in the 
 afternoon. 
 
 Holding courts in case of pestilence, war, or other public calamity. — 
 See Charter, § 120. 
 
 Keeping court open. — The justice has power to hold the court open 
 for the return of an attachment against the witness. Board of Excise 
 v. Sackrider, 35 N. Y. 154. 
 
 Public holidays; half holidays. — The term " holidays " includes the 
 following days in each year: The first day of January, known as New 
 Year's day; the twelfth day of February, known as Lincoln's birthday; 
 the twenty-second day of February, known as Washington's birthday; the 
 thirtieth day of May, known as Memorial day ; the fourth day of July, 
 known as Independence day; the first Monday of September, known as La- 
 bor day, and the twenty-fifth day of December, known as Christmas day; 
 and if either of such days is Sunday, the next day thereafter ; each gen- 
 eral election day and each day appointed by the President of the United 
 States, or by the Governor of this State, as a day of general thanks- 
 giving, general fasting, and prayer, or other general religious observ- 
 ances. The term " half-holiday " includes the period from noon to 
 midnight of each Saturday which is not a holiday. The days and 
 half-days aforesaid shall be considered as the first day of the week, 
 commonly called Sunday, and as public holidays or half-holidays for 
 all purposes whatsoever as regards the transaction of business in the 
 public offices of this State or counties of this State. On all other days 
 and half-days, excepting Sundays, such offices shall be kept open for 
 the transaction of business. 
 
 Where a contract by its terms requires the payment of money or 
 the performance of a condition on a public holiday, such payment may 
 be made or condition performed on the next business day succeeding 
 such holiday, with the same force and effect as if made or performed 
 in accordance with the terms of the contract. Statutory Construction 
 Act, § 24, as amended by chap. 39, Laws 1902. See also notes to §§ 31 
 and 37. 
 
 Saturday afternoon. — It shall be lawful for the county clerk, register, 
 surrogate, and sheriff of the city and county of New York to close 
 their respective offices at 1 o'clock in the afternoon on Saturday from 
 the first day of July to the first day of October, both days included, in 
 each year hereafter, and the District Courts in said city and clerk's 
 offices thereof may also be closed on each Saturday at 1 o'clock in the 
 afternoon during the same period in each year, provided such courts be 
 not engaged in the actual trial or hearing of actions or proceedings. 
 Laws 1S87, chap. 185. 
 
 Under Laws 1887, chapter 185, it was held that a court was not a 
 public office within the terms of that act, and the act does not prohibit 
 the holding of court after 12 o'clock on Saturdays. People v. Kearney, 
 47 Hun, 129.
 
 116 Seals. § 18. 
 
 Sittings to be public. — The sittings of every court within this State 
 shall be public, and »very citizen may freely attend the same except 
 in certain cases when the court may, in its discretion, exclude there- 
 from all persons who arc dot directly interested therein, excepting 
 jurors, witnesses, and officers of the court. Code Civ. Proc, S 5. 
 
 Sunday. — A court shall not be opened, or transact any bushier on 
 Sunday, except to receive a verdict or discharge a jury. An adjourn- 
 ment of a court on Saturday, unless made after a cause has been 
 committed to a jury, must be to some other day than Sunday. But 
 this section docs not prevent the exercise of the jurisdiction of a 
 magistrate, where it was necessary to preserve the peace, or in a 
 criminal ease to arrest, commit, or discharge a person charged with 
 an offense. Code Civ. Proc, § G. People ex rel. Donohue v. Walton, 
 35 Misc. Rep. 320. 
 
 § 18. Seals. — The said court in. each district shall have 
 official seals furnished at the expense of the city, on which 
 shall be engraved the arms of the state of Xew York, 
 " Borough of Manhattan " (or whatever the borough may 
 be), " First District " (or whatever the district may be), but 
 nothing herein contained shall authorize such court to issue 
 certificates of naturalization. 
 
 Notes to section 18. 
 
 This section is the same as section 1372 of the Charter (Laws 1897, 
 chap. 378), as amended in 1901, which superseded section 1293 of the 
 Consolidation Act (Laws 1882, chap. 410). 
 
 Seals were first provided for this court by Laws 1851, chap. 514, when 
 it was known as "Justice's Court, First District" (or whatever dis- 
 trict it was), " New York city." 
 
 What is sufficient sealing. — Section 29 of the Code of Civil Pro- 
 cedure provided how the seal of a court might be affixed. This section 
 was repealed by section 13 of the Statutory Construction Law (Laws 
 1892, chap. 677), chapter 1 of the General Laws. Section 13 apper- 
 taining to the seal of a court is as follows: 
 
 " A seal of a court, public officer, or corporation, may be impressed 
 directly upon the instrument or writing to be sealed, or upon wafer, 
 wax or other adhesive substance affixed thereto, or upon paper or other 
 similar substance affixed thereto by mucilage or other similar sub- 
 stance." 
 
 New seals. — Code Civ. Proc., § 30. When the seal of a court is 
 so injured that it cannot be conveniently used, the court must cause it 
 to be destroyed; and when the seal of the court is lost or destroyed, the
 
 §§ 19, 20. Access to Coukt-house. 117 
 
 court must cause a new seal to be made, similar in all respects to the 
 former seal, which shall become the seal of the court. The expense of 
 a new seal for a county clerk, a surrogate's court, or a local court in a 
 city, must be paid as part of the contingent expenses of the county, or 
 the court, as the case requires. The expense of a new seal for any other 
 court must be paid from the State treasury. 
 
 § 19. Access to court-houses — The justices of said court 
 shall have access and possession of the court-houses; and it 
 shall be the duty of the board of aldermen of the city of 
 Xew York and its several officers charged with duties 
 in that behalf to supply and pay for whatever may be neces- 
 sary for the transaction of the business of said court, and 
 the justices thereof, and to supply all proper accommodations, 
 books, stationery and furniture, and to pay all salaries, com- 
 pensations and expenses and disbursements herein authorized, 
 and the board of estimate and apportionment shall annually 
 include in its final estimate such sums as may be necessary 
 to pay the same. 
 
 Note to section 19. 
 
 This section is substantially section 1380 of the Charter (Laws 1897, 
 chap. 378), as amended in 1901. See also § 17 and notes. 
 
 § 20. Code, rules of supreme court applicable; when The 
 
 provisions of the code of civil procedure and rules and regu- 
 lations of the supreme court as they may be from time to 
 time, shall apply to the municipal court as far as the same 
 can be made applicable, and are not in conflict with the pro- 
 visions of this act; in case of such conflict this act shall 
 govern. 
 
 Notes to section 20. 
 
 This section is taken from section 1377 of the Charter (Laws 1897, 
 chap. 378), as amended in 1901, which superseded section 1426 of the 
 Consolidation Act (Laws 1882, chap. 410). 
 
 There is a sweeping addition in this section to section 1377, in mak- 
 ing the provisions of the Code of Civil Procedure also applicable to 
 this court when not in conflict with the provisions of this act. 
 
 Rules of courts of record, how made and revised. — See § 17, Code 
 Civ. Proc. 
 
 Rules to be published.— See § 18, Code Civ. Proc.
 
 1 1 > Code; Rules oe Supreme Couet, Etc. §20. 
 
 Construction. — The rules made by the court, under authority of the 
 Code, may be considered as giving construction to the statute. Myers 
 v. Feet,,. -4 How. Pr. 241; Matter of Wade, L54 N. Y. 342. 
 
 Rules of court have tl e force and effect of statutes. People ex rel. v. 
 Nichols, is Hun. 535; 3. <••. 7!) N. Y. 582. 
 
 Discretion. — All matters of practice are in the first instance in the 
 discretion of the courts in which the question of practice arises, yet 
 matins of practice come after a while to be governed absolutely by the 
 custom of the courts. Fisher v. Gould, 81 X. Y. 232. 
 
 Each court is the best judge of its own rules, and a higher court will 
 not reverse any construction given to them not palpably erroneous. 
 Coleman v. Nantst, 03 Pa. St. 178. 
 
 Disregarding. — The court may disregard its rules when a proper case 
 is presented. Clark v. Brooks, 26 How. 285. This is so with a directory 
 rule, but a mandatory rule must be followed. Hatter of Moore, 108 
 N. Y. 280. 
 
 The true object of technical rules is to promote justice, or to punish 
 injustice. When they fail of those ends courts should neither encourage 
 nor enforce them. People v. Tweed, 5 Hun, 353; affd., 63 N. Y. 194. 
 
 Legality. — The judges cannot make law in making a rule, that be- 
 longs to the legislature. Winston v. English, 14 Abb. Pr. N. S. 124. 
 
 No general rules can be made inconsistent with the Code. Rice v. 
 Ehele et al., 55 N. Y. 524; Lakey v. Cogswell, 3 Code Rep. 116; French 
 v. Powers, 80 N. Y. 146; Palmer v. Phoenix Ins. Co., 22 Hun, 224; 
 Gomerly v. McGlynn, 84 N. Y. 284. 
 
 A court rule cannot nullify a statute, and the latter must be inter- 
 preted and followed. Glenny v. Stedwell, 64 N. Y. 120. 
 
 Conflict with court decisions. — The justices in convention have power 
 to make rules which are in conflict with the previous decisions of the 
 court, regulating practice. Havemeyer v. Ingersoll, 12 Abb. Pr. N. S. 
 301. 
 
 Note. — There are no sections from 20 to 25.
 
 25. Actions ; Summons ; Parties. 119 
 
 TITLE II. 
 Actions; Summons; Parties. 
 
 Section 25. In what district brought. 
 
 26. Actions; how commenced. 
 
 27. Summons; requisites. 
 
 28. Form of summons. 
 
 29. Summons ; corporation counsel ma^y issue, et cetera. 
 
 30. Service; alias. 
 
 31. Method of service. 
 
 32. Order for service of summons, when defendant not found. 
 
 33. How such service must be made. 
 
 34. Papers to be filed; proof of service. 
 
 35. Defendant, when allowed to defend. 
 
 36. Who may serve summons, et cetera. 
 
 37. Return day. 
 
 38. Indorsement upon summons. 
 
 39. Indorsement upon summons where execution against the 
 
 person may issue. 
 
 40. Parties; appearance of. 
 
 41. Guardian ad litem. 
 
 42. Parties; who may be joined. 
 
 43. Application of this article to defendants jointly liable. 
 
 44. Where employee is party. 
 
 45. Who may petition for leave to prosecute as a poor person. 
 
 46. Contents of petition. 
 
 47. Order and petition to be filed; when counsel assigned. 
 
 48. When leave may be annulled, 
 
 49. When defendant may defend as a poor person, et cetera. 
 
 50. Defendant's order. 
 
 51. Leave may be annulled as in cases of plaintiff. 
 
 52. Appeal where plaintiff or defendant poor person. 
 
 53. Costs in favor of petitioner. 
 
 § 25. In what district brought. — An action or proceeding 
 of which the municipal court has jurisdiction must be 
 brought : 
 
 1. In a district in which either the plaintiff or defendant 
 •or one of the plaintiffs or one of the defendants resides, 
 unless all the plaintiffs or all the defendants reside out of 
 the city of ISTew York, in which case the action or proceeding 
 may be brought in said court in any district.
 
 120 In What District Brought. r ^ 25. 
 
 2. If the defendant be a corporation created by law, in a 
 district in which the plaintiff or either of the plaintiffs re- 
 sides, or in which (if it be a corporation) it transacts its gen- 
 eral business or keeps an office or has an agency established 
 for the transaction of business or is established by law, 
 except the corporation of the city of New York, which may 
 sue or be sued in any district, except as provided for in sub- 
 division five of this section. 
 
 3. By plaintiffs not residing in the city of New York, in 
 the district in which the defendant, or one of the defendants 
 resides, and against a defendant or defendants, not residing 
 in said city, in the district in which the plaintiff or one of 
 the plaintiffs resides; but where all the parties reside out of 
 said city, the action may be brought in any district. No 
 person who shall have a place in said city for the regular 
 transaction of business shall be deemed a non-resident under 
 the provisions of this act. 
 
 4. If the district in which the action or proceeding is 
 brought is not the proper district, the action may, notwith- 
 standing, be tried therein, unless the action is transferred 
 to the proper district before trial upon demand of the de- 
 fendant made upon or before the joinder of issue in writing 
 or in open court, followed by the consent of the plaintiff, 
 given in like manner, or the order of the court. The de- 
 mand must specify the district to which defendant requires 
 the action to be transferred. The court must make such 
 order when the district in which the action or proceeding is 
 brought is not the proper district, as specified in this section 
 or the next one, if such demand be made. 
 
 5. All actions by or on behalf of the city of New York 
 to recover a penalty or fine for a violation of any corpora- 
 tion ordinance, when the amount of such penalty or fine shall 
 not exceed five hundred dollars, must be brought in the 
 district in which the violation of such ordinance happened 
 or occurred. And all actions to recover a penalty or fine 
 for a violation of any provision of the sanitary code or of 
 any regulation of the fire commissioner or of any laws or 
 ordinances which either the health or the fire department is
 
 § 25. In What District Brought. 121 
 
 authorized, empowered and especially charged to enforce, 
 where the amount of such penalty or fine shall not exceed 
 five hundred dollars, must be brought in the district, in 
 which such violation happened or occurred. 
 
 Notes to section 25. 
 
 This section is taken from section 1370 of the Charter (Laws 1897, 
 chap. 378), as amended in 1901, which superseded section 1289 of the 
 Consolidation Act (Laws 1882, chap. 410). 
 
 Actions by or against the city must be in the corporate name of " The 
 City of New York." Charter, § 1614. 
 
 Association. — Under section 1289 of the Consolidation Act (Laws 
 1882, cbap. 410), which is now this section, an action brought against 
 an association in the name of its president must be brought in the 
 district in which either the plaintiff or such president resides. Brooks 
 v Dinsmore, 15 Daly, 428. 
 
 Clerk. — A person permanently employed and regularly in attendance 
 in a store in the city of New York is to be considered as having a 
 " place of business " in that city, and may be sued by a long summons. 
 Lewis v. Davis, 8 Daly, 185. 
 
 Corporation. — The plaintiff may bring his action either in the district 
 in which he resides, or the defendant, being a corporation, in one 
 in which it transacts its general business, or has an agency estab- 
 lished for the transaction of business or keeps an office. The limit is 
 not to a district in which the general business is transacted. It is 
 enough that there is an agency for the transaction of business, or that 
 the defendant keeps an office. Jay v. Long Island R. R. Co., 2 Daly, 401. 
 The principal office of the plaintiff, a religious corporation, was its 
 treasurer's office, and it transacted most of its business there. Held, 
 that an action brought by it was properly brought in the district 
 within which such office was situated although its church edifice was 
 situated in a different judicial district. St. Michael's Protestant 
 Episcopal Church v. Behrens, 13 Daly, 548; s. c, 10 Civ. Proc. Rep. 181. 
 Dismissal. — To authorize the dismissal of an action on the ground 
 that it was brought in the wrong district, that fact must appear from 
 the evidence. Werner v. Braunstein et al., 20 Misc. Rep. 341. 
 
 Milk and cream cans. — In an action concerning this subject the com- 
 plainant may elect the district within which he will commence, irre- 
 spective of the residence of the justice and the location of the sub- 
 ject-matter of the action. The Domestic Commerce Law (Laws 1896, 
 chap. 376), § 29, as amended Laws 1900, chap. 545. 
 
 Nonresidents. — The Legislature had power to confer jurisdiction 
 upon this court over nonresident defendants who have a place of busi- 
 ness in the city of New York for the regular transaction of business. 
 Routenberg v. Schweitzer, 165 N. Y. 175, revg. s. c, 50 App. Div. 218.
 
 122 Action; How Commenced. § 20. 
 
 Though both plaintiff amL defendant are nonresidents of this city, this 
 court has jurisdiction. Evans v. Wood, 15 Abb. Pr. 416. 
 
 Id.; of districts. — Win re it appears that both plaintiff and defendant 
 reside in the city of New York, but neither within the district for 
 which the court is held, it is the duty of the justice to dismiss the 
 action. Beat it- v. Larkin, 2 E. D. Smith, 244; Bear v. Kempner, 15 
 Daly, 110; s. c. 22 X. Y. St. Rep. 37; Brooks v. Dinsmore, 15 Daly, 
 428; s. c, S X. Y. Si pp. 103. 
 
 Objection* — If the action is brought in the wrong district objection 
 thereto must be taken at the trial, or it is waived. Fairbanks v. 
 Corlies, 1 Abb. Pr. 454; s. c, 3 E. D. Smith, 582; McKee v. Oliver, 
 2 Daly, 381; Dammann v. Peterson, 17 Misc. Rep. 369. 
 
 An objection to the jurisdiction on the ground of nonresidence in the 
 district may be taken on the second trial, where the fact then appears 
 for the first time. Brooks v. Dinsmore, 15 Daly, 428. See also Baer 
 v. Kempner, 22 N. Y. St. Rep. 37. 
 
 Place of business. — Nonresidents having a place of business in this 
 city are to be deemed, for purposes of suing, residents of the districts 
 in which their place of business is situated. Clarkson v. Mittnacht, 6 
 Daly, 398. 
 
 Proof. — Refusal of the court to transfer the action, without proof 
 that it was brought in the wrong district, is correct. Whitman & 
 Barnes Mfg. Co. v. Hamilton, 27 Misc. Rep. 198, 57 N. Y. Supp. 760. 
 
 Refusal to transfer action; mandamus. — An alleged wrongful refusal 
 of a justice to order a removal of an action to another district of 
 the court should be reviewed by appeal, and a writ of mandamus 
 will not lie against the justice. Where however the justice refused to 
 receive or file motion papers, for a rehearing of the motion, for a re- 
 moval, which the defendant deemed essential to a proper review of 
 the adverse decision, the court ordered a peremptory writ to issue 
 compelling the justice to file the papers to the end that they might be 
 made a part of the record. People ex rel. Jaffe v. Bolte, 35 Misc. Rep. 
 53. 
 
 Waiver. — Appearance by defendant and taking judgment by default 
 against plaintiff in the district to which the issues have been sent to 
 trial precludes him from objecting to the jurisdiction on the ground 
 that it was in the wrong district. Koerkle v. Pangburn, 33 Misc. Rep. 
 476, 67 N". Y. Supp. 898; Methen v. Eyelis, 33 Misc. Rep. 98, 67 N. Y. 
 Supp. 246, 8 N. Y. Annot. Cas. 372 ; Barker v. Archer, 49 App. Div. 80, 
 63 N". Y. Supp. 298. 
 
 § 26. Action; how commenced. — An action brought in the 
 municipal court of the city of New York, must be commenced 
 by the service of a summons, or the voluntary appearance of 
 and joinder of issues by the parties.
 
 §26. Action; How Commenced. 123 
 
 Notes to section 26. 
 
 This section is substantially the same as section 1296 of the Con- 
 solidation Act (Laws 1882, chap. 410). 
 
 Deemed commenced. — An action is deemed commenced when the 
 summons is delivered to the proper officer for service, and this saves 
 the statute of limitations. See § 30, post, and §§ 398 and 400, Code 
 Civ. Proc. 
 
 Discontinuance. — Action can be discontinued, before finally sub- 
 mitted. Rothenberg v. Filarsky, 30 Misc. Rep. blO. 
 
 Fictitious name; appearance. — The summons issued was not in the 
 proper name of the defendant, nor stated that the name was a fictitious 
 one: defendant did not appear personally, but his wife, an ignorant 
 foreigner, was present on the return day, apparently to explain that 
 he was ill, as in fact he was. Held, that she could not be regarded as 
 his agent under section 1294 of the Consolidation Act, and an amend- 
 ment of the summons was irregular, and did not justify entry of a 
 judgment by default against defendant in his proper name. Strom- 
 berg v. Carnese, 35 Misc. Rep. 289, 71 N. Y. Supp. 746. 
 
 Name of another. — If a person, vexatiously or maliciously, in the 
 name of another, but without the latter's consent, or in the name of 
 an unknown person, commences or continues, or causes to be com- 
 menced or continued, an action or special proceeding, in a court, of 
 record or not of record, or a special proceeding before a judge or a 
 justice of the peace; or takes, or causes to be taken, any proceeding, 
 in the course of an action, or special proceeding, in such a court, or 
 before such an officer, either before or after judgment or other final 
 determination; an action, to recover damages therefor, may be main 
 tained against him, by the adverse party to the action or special pro 
 ceeding; and a like action may be maintained by the person, if any, 
 whose name was thus used. He is also guilty of a misdemeanor, pun 
 ishable by imprisonment, not exceeding six months. Code Civ. Proc. 
 § 1900. 
 
 In an action, brought by the adverse party, as prescribed in the last 
 section, the plaintiff, if he recovers final judgment, is entitled to re- 
 cover treble damages. In an action, brought Ly the person whose name 
 was used, as prescribed in the last section, the plaintiff is entitled to 
 recover his actual damages, and $250 in addition thereto. Code Civ. 
 Proc, § 1901. 
 
 Poor person. — As to who may prosecute, and the manner and mode 
 of so doing, see §§ 45 to 53, inclusive. 
 
 Revivor. — By section 20 the provisions of the Code of Civil Proce- 
 dure shall apply to this court as far as the same can be made applicable 
 and are not in conflict with the provisions of this act. The power of a 
 court of record to revive an action, in case of the death of a sole plain- 
 tiff, or a sole defendant, if the cause of action survives or continues, i3
 
 124 Si mmons; Requisites. §27. 
 
 conferred by section 7.">7 of the Code of Civil Procedure. This sec- 
 tion howevei is only applicable to the Supreme Court, the City Court 
 of the city of New York, and the County C^urt (Code Civ. Proa, 
 § 3347, Bubds. 4 to 6), and heretofore has not been made applicable 
 to this court. We think that section 20 gives the same power to this 
 court, inasmuch as section 757 can be made applicable to this court. 
 and is not in conflict with any of the provisions of this act. 
 
 Statute of limitations. — As to the time when actions must be 
 brought, see §§ 370 to 415, inclusive, Code Civ. Proc. 
 
 §27. Summons; requisites. — The summons must be ad- 
 dressed to the defendant by name, or if his name be un- 
 known, by a fictitious name, and must summon him to appear 
 before the court, at the court-room thereof, and at the time 
 specified therein, to answer the complaint of the plaintiff, 
 and must state the amount for which the plaintiff will take 
 judgment if the defendant fail to appear and answer; it 
 must be issued and subscribed by the clerk of the court in 
 the district out of which the same is issued, or by his assistant 
 in the name of such clerk, except as provided in section 
 twenty-five of this act. 
 
 Notes to section 27. 
 
 This section is taken from section 1297 of the Consolidation Act 
 (Laws 1882, chap. 410), part of which has been embodied in section 29. 
 
 It will be observed that the summons to " appear before the justice 
 in the court," as was contained in section 1297 of the Consolidation 
 Act (Laws 1882. chap. 410) has been omitted, and that now the defend- 
 ant is summoned to appear "before the court" and not before the 
 " justice." 
 
 Amendment. — The summons may, on the trial, be amended so as to 
 change the nature of the right in which the plaintiff sues. e. g., it may 
 be amended so as to make it a suit by him in his own right instead of 
 "as" assignee. Martin et al. v. Johnson et ah, 8 Daly, 541. See also 
 Boyd v. Vanderkamp, 1 Barb. Ch. 274; City of New York v. Union A'//. 
 Co., 31 Misc. Rep. 451, 04 N. Y. Supp. 483. 
 
 Where a summons of the Municipal Court of the city of New York 
 is not in the proper name of the defendant, and contains no statement 
 that the name by which he is desisjnated is fictitious, and he does not 
 appear on the return day either in person or by an agent or by an 
 attorney, the court has no power then to amend the summons to the 
 proper name of the defendant and render judgment against him by 
 that name, titromlcrg v. Carnese, do iiisc. Rep. 289.
 
 §27. Summons; Requisites. L25 
 
 Error, if any, in the amendment of a summons by adding new par- 
 ties-defendant is available only to the original defendant. Button v. 
 Murphy, 9 Misc. Rep. 151. See also Ktromberg v. Carnese, 35 Misc. 
 Rep. 289. 71 N. V. Supp. 740. 
 
 Justice has no power to allow an amendment of summons on trial by 
 adding the amount named in the summons to another action between 
 the same parties. Balch v. Wurzburger, 9 Misc. Rep. 74. 
 
 Amendment of the summons upon plaintiff's withdrawing the action 
 at the trial, on discovering that the party to be held liable had not 
 been served, and that the defendant designated was not the party 
 for whom the services sued for were rendered, so as to bring in new 
 defendant for the one then in court. — Held unauthorized. Elias v. 
 Hayes, 24 Misc. Rep. 754, 53 N. Y. Supp. 858. 
 
 Appearance; objections to service of summons. — General appearance 
 is a waiver of objections to service of summons. Abramson v. Koch, 
 27 N. Y. Supp. 310. 
 
 Fictitious name. — Ignorance of the name should be made to appear 
 in the summons to justify the use of a fictitious name. Fisher v. Heth- 
 erington, 11 Misc. Rep. 575. 
 
 Id.; change of. — Plaintiff in the summons designated defendant as 
 Joseph Litto, stating therein that the first name was fictitious, the 
 real name being unknown to plaintiff, and obtained judgment by de- 
 fault in the action, issued execution, and arrested Frank Liatto. Held, 
 that the arrest was unauthorized under such judgment, and that 
 plaintiff was bound by his position that the Christian name only was 
 unknown to him. People ex rel. Liatto v. Dunn, 27 Misc. Rep. 71, 
 58 N. Y. Supp. 147. 
 
 Id.; want of. — Where a summons is not in the proper name of the 
 defendant and contains no statement that the name by which he is 
 designated is fictitious, and he does not appear on the return day 
 either in person or by an agent' or by an attorney, the court has no 
 power then to amend the summons to the proper name of the defendant 
 and render judgment against him by that name. Stromberg v. Car- 
 nese, 35 Misc. Rep. 289, 71 N. Y. Supp. 746. 
 
 Id. ; inserting of real name. — Whenever the name of a defendant sued 
 by a fictitious name becomes known, it should be substituted, and the 
 proceeding be amended in that respect. Thus, where the defendant ap- 
 peared, disclosed his name, and defended the action, a judgment against 
 " John Doe," as named in the process, was set aside and declared erro- 
 neous. The defendant so appearing and defending the suit has a right 
 to appeal in his true name, although the judgment be not nominally 
 against him. McCabe v. Sands, 2 E. D. Smith, 64; Heidenheimer v. 
 Lyon and Bush sued as John Doe, 3 E. D. Smith, 54; Hoffman v. Fish, 
 18 Abb. 76. 
 
 Id.; judgment; amendment. Tudgment against a defendant by a 
 
 fictitious name shall not bind or be a charge upon the real property
 
 L26 Form of Summons. § 28. 
 
 or chattels real of any person, and may ho amended at any time within 
 ten years after the docketing thereof by inserting the true name of 
 such judgment debtor upon such notice to him as the court may direct, 
 and such judgment shall thereafter be a lien upon the real property 
 and chattels real which the judgment debtor then had, or may there- 
 after acquire, hut not for a longer period than ten years after the 
 original docketing of such judgment. § 1251, Code Civ. Proc, as 
 amended by Laws 1902, ehap. 318. 
 
 Mistake in name. — This court has power to correct a mistake in the 
 name of the defendant; which is waived, if not pleaded. City of New 
 York v. Union /,'//. Co.. Ml Misc. Rep. 451, 64 N. Y. Supp. 483. 
 
 A person who (hums that a summons, in which his brother is named 
 as the defendant, was served upon him by mistake, has two available 
 remedies; one to move to set aside the service, and the other to serve 
 a notice of appearance indicating that the summons was served on 
 the wrong individual, and if no attention is paid to this to formally 
 answer and bring the case to trial and procure the complaint to be 
 dismissed with costs. If he resorts to the first-mentioned remedy, and 
 the plaintiff opposes the motion, claiming that the person served was 
 the defendant desired, it is the duty of the court to deny the motion. 
 Lederer Amusement Co. v. Pollard, 71 Misc. Rep. 35. 
 
 Single letter. — The law does not recognize a single letter as a name. 
 Frank v. Levil, 5 Robt. 599; Curtis v. Brooks, 37 Barb. 479. 
 
 Unknown name. — Designating a defendant by a fictitious name can 
 only be done where the plaintiff is ignorant of the true name. Crandal 
 v. Beach, 7 How. Pr. 271. See also Eliot v. Hart, 7 How. Pr. 25. In a 
 case where the name of the defendant was unknown, and he was de- 
 scribed as " John Doe, the real defendant in this suit, whose name is 
 not now known to this deponent, was in command of the sloop Hornet, 
 of Troy," it was held to be a sufficient description. Pindar v. Black, 
 4 How. Pr. 95; s. c, 2 Code Rep. 53. 
 
 Striking out name. — If too many persons are joined as defendants 
 the names of those improperly joined may, under section 173 (now 
 § 723) of the Code of Civil Procedure, be stricken out and judg- 
 ment entered against the others. 
 
 The cases of Gates v. Ward, 17 Barb. 424; Webster v. Hopkins, 11 
 How. Pr. 140; Ackley v. Tarbox, 29 Barb. 512, and' Cilmore v. Jacobs, 
 48 Barb. 336, holding that section 173 (now § 723) of the Code of 
 Civil Procedure does not apply to justices' courts, overruled. Lowe v. 
 Rommel, 5 Daly, 17. 
 
 § 28. Form of summons. — The summons must be substan- 
 tially in the following form, the blanks being properly filled 
 out.
 
 § 29. Summons ; Corporation Counsel, Etc. 127 
 
 MUNICIPAL COURT OF THE CITY OF NEW YORK. 
 
 Borough of , district 
 
 _ ^ 
 
 plaintiff, 
 against }■ Summons. 
 
 defendant. 
 
 J 
 
 To the above named defendant : 
 
 You are hereby summoned and required to appear in 
 this action in the municipal court of the city of New York, 
 
 borough of , district, in the court room 
 
 thereof, at , in the city of New York, on the 
 
 day of , 19 . . , at o'clock in the 
 
 forenoon, to answer the complaint of the plaintiff in this 
 action, who, if you then fail to appear and answer will take 
 
 judgment against you for the sum of dollars, 
 
 with interest from the day of , 19 . . , 
 
 together with the costs of this action. 
 
 Dated, New York, , 19 . . . 
 
 Clerk. 
 Notes to section 28. 
 
 This section is new. 
 
 There is only one form of summons in this court, the provision for 
 the short summons contained in section 1298 of the Consolidation Act 
 (Laws 1882, chap. 410) having been repealed, thus doing away with 
 the provision relating to nonresidents, a subject which has caused 
 many conflicting decisions in the courts. 
 
 For return day in the summons, see § 37. 
 
 § 29. Summons; corporation counsel may issue, et cetera. — 
 In any and all actions brought in the name of the city of 
 New York, or of any department, board, or officer thereof,
 
 128 Service; Alias. § 30. 
 
 by the corporation counsel of the city of Xew York, as 
 attorney for said city, or said department, board or officer 
 thereof, to recover a penalty or penalties for the violation of 
 any laws or ordinance, the summons may be issued out of said 
 court by the corporation counsel in his own name without 
 the same being subscribed by the clerk of the court where 
 such action or actions are brought, and in such actions the 
 corporation counsel shall not be required to pay to the clerk 
 of the court the fees in the action, but shall account there- 
 for to the city treasury and shall collect the same from the 
 defendant, when judgment is recovered; and no fees or costs 
 shall be demanded of the said the city of New York or any 
 board or officer thereof in any such suit or proceeding. 
 
 Notes to section 29. 
 
 This section is a part of section 1297 of the Consolidation Act (Laws 
 1882, chap. 410), which was headed "The Summons," and contained as 
 one section what is now contained in section 27 and this section, the 
 present section being substantially the latter half of section 1297 of 
 the Consolidation Act (Laws 1882, chap. 410). See notes to § 27. 
 
 Corporation counsel; bureau for recovery of penalties established by 
 section 259 of the Charter. By section 1614 of the Charter the cor- 
 poration counsel shall assume the charge, direction and control of all 
 such actions, suits and proceedings in behalf of the city of New York. 
 
 As to fees or other compensation to persons who serve process for 
 the corporation counsel, see § 302. 
 
 §30. Service; alias. — An action shall be deemed com- 
 menced, at the time the summons is actually delivered for 
 service. If the marshal or other person having the summons 
 to serve, cannot find the defendant so as to serve him there- 
 with as required by this act, he must so return, and the 
 clerk shall, at the request of the plaintiff, if made between 
 the last day when service could be had and the return day 
 mentioned in said summons or alias, including such return 
 day, continue from time to time to issue another summons, 
 to be known as and stamped " alias," until the defendant 
 is served.
 
 § 31. Method of Service. 129 
 
 Notes to section 30. 
 
 This section is taken from the latter portion of section 1303 of the 
 Consolidation Act (Laws 1882, chap. 410), which was formerly taken 
 from Laws 1857, chap. 344, § 22. 
 
 As to when action shall be deemed commenced, see notes under § 26, 
 and § 400, Code Civ. Proc. 
 
 It must be observed that the alias summons must be stamped 
 " alias," so that a writing on the face of the summons, or an indorse- 
 ment thereon " alias," would be held not a compliance with this sec- 
 tion. 
 
 Alias summons may issue, without charge, on application to the 
 clerk at the time of the return mentioned therein, when the summons 
 is not served. Before an alias summons can issue, the original sum- 
 mons must have the indorsement of the marshal that the defendant 
 cannot be found. Doughty v. Hess, opinion by Gedney, J., January 9, 
 1878, Daily Register, January 26, 1878, vol. 13, No. 22. 
 
 If the marshal returns a summons " Defendant not found," the 
 plaintiff, on demand, is entitled to an alias summons, without wait- 
 ing until the return day named in the summons. Ellinghausen v. 
 Leask, 1 Abb. N. C. 299. 
 
 Clerk has no power to issue a second or " alias " summons, unless 
 proof has been made by the marshal, or other person having the first 
 summons to serve, of his inability to find the defendant. Loeb v. 
 Smith, 24 Misc. Rep. 200, 52 N. Y. Supp. 677. 
 
 "New summons;" in action upon bastardy bonds for any breaches 
 of the condition of such bond which shall happen after the recovery 
 of any damages, on the commencement of any suit, the court in 
 which the suit was originally brought shall have power to issue a 
 new summons, and upon the return thereof to ascertain the amount 
 of damages arising from such breach, and to give judgment accord- 
 ingly. § 178. 
 
 Other defendants. — An alias summons cannot be issued to bring in 
 other defendants, the action failing against the only defendant made 
 a party. Elias v. Hayes, 24 Misc. Rep. 754, 53 N. Y. Supp. 858. 
 
 § 31. Method of service. — The summons must be served as 
 follows : 
 
 1. If an action be against a corporation, by delivery of a 
 copy to the president or other head of the corporation, or 
 to the secretary, cashier, or managing agent thereof, but 
 when no such officer resides in the city, to a director resident 
 therein. 
 
 2. If against a minor under the age of fourteen years, by 
 delivery of a copy to such minor, and also to his father, 
 
 9
 
 130 Mktiiod of Service. §31. 
 
 mother or guardian, or if they be not within the city, then 
 to any person having the care or control of said minor, or 
 with whom he resides, or in whose service he is. 
 
 3. If against a person judicially declared to he of unsound 
 mind, or incapable of conducting his own affairs in conse- 
 quence of habitual drunkenness, or for any other cause, and 
 for whom a committee has been appointed, by delivery of a 
 copy to such committee and of the defendant personally. 
 
 4. In all other cases to the defendant personally, except as 
 in this act otherwise specially provided. 
 
 Notes to section 31. 
 
 This section is the same as section 1300 of the Consolidation Act 
 (Laws 1882, chap. 410), which was a part of section 14, Laws 1857, 
 chap. 344, except the substitution of the word " or " for " but " in 
 the third line of subdivision 1. 
 
 Appearance, general, for defendant by an attorney confers jurisdiction 
 although he was retained to appear only specially to have service of 
 the summons set aside, if he had authority to appear at all. Kramer 
 v. Gerlach, 28 Misc. Rep. 525, 59 N. Y. Supp. 855. 
 
 Attorney. — Service of summons and complaint on defendant's attor- 
 ney, not followed by appearance on the return day, gives no jurisdic- 
 tion, and a judgment entered thereon as by default is void. Goldberg 
 v. Fowler, 29 Misc. Rep. 328. 
 
 Corporations. — To authorize legal service upon a managing agent, he 
 must be one whose agency extends to all the business of the corpora- 
 tion, and not a particular branch or department of its business. Brew- 
 ster v. Michigan Central R. R. Co., 5 How. Pr. 183. A baggage-master 
 is not such an agent as the statute contemplates. Flynn v. Hudson 
 River R. R. Co., 6 How. Pr. 308. An agent of an insurance company, 
 properly appointed and qualified to procure and effect insurance, resid- 
 ing at a different place from where the principal office of the company 
 is located, is such a " managing agent " that legal service against the 
 company may be made by serving him. Bain v. Clobe Ins. Co., 9 
 How. Pr. 448. Where it is uncertain whether the party served is or 
 is not a managing agent, the burden is on the defendant to show the 
 relation to them of a party served, and that he is not a managing 
 agent, it being within their power to show the precise relations of 
 the agent toward them. Donadi v. A 7 . Y. State Hut. Ins. Co., 2 E. D. 
 Smith, 519. 
 
 Personal service upon a managing agent of a corporation is personal 
 service upon the corporation, and if the marshal's return shows such 
 a service the jurisdiction of the justice is established, and his judg-
 
 § 31. Method of Service. 131 
 
 ment will be regular upon its face. N. Y. d Erie R. R. Co. v. Purdy, 
 18 Barb. 574. 
 
 For further and other cases of service on agents and officers of cor- 
 porations, see Cumming & Gilbert's Official Court Rules, 1900, pp. 74 
 to 79. 
 
 Defects in the affidavit of service may be amended on the return day, 
 and are cured by appearance or answer without objection. Gushing- 
 ham v. Phillips, 1 E. D. Smith, 416; Andrews v. Throop, 1 E. D. Smith, 
 615; Bray v. Andreas, 1 E. D. Smith, 387; Hogan v. Baker, 2 E. D. 
 Smith, 22; Boyd v. Yandcrkcmp, 1 Barb. Ch. 274. See also 1 Hilt. 
 49; 32 How. 230; 3 E. D. Smith, 119, 303, 577; 1 Daly, 306. 
 
 Designated service. — Section 430, Code Civ. Proc, entitled " Designa- 
 tion by a resident of a person upon whom to serve a summons dur- 
 ing his absence, effect and revocation thereof," is made applicable by 
 section 74 of this act, post, with reference to what may be shown for 
 procuring a warrant of attachment. 
 
 Election day. — Service of a summons on an elector on an election day, 
 and all proceedings under it, are void. Meeks v. Xoxon, 1 Abb. Pr. 
 280; s. c, sub nom. Meeks v. Noxon, 11 How. Pr. 189; Hastings v. 
 Farmer, 4 N. Y. 296; Bierce v. Smith, 2 Abb. Pr. 411. See also Peo- 
 ple ex rel. Monday v. Schicartz, 3 Abb. Pr. N. S. 395. 
 
 Fraud. — Any attempt by fraud or misrepresentation to induce or 
 bring a party within the jurisdiction for service of process upon him, 
 will make the service irregular and null and void. Carpenter v. Simon- 
 son, 2 Code Rep. 140; s. c, 2 Sandf. 717; Goupil v. Simonson, 3 Abb. 
 Pr. 474. 
 
 Where there has been any fraud, trick, deceit or misrepresentation, 
 for the purpose of bringing a person within the jurisdiction, that 
 he may be served with summons, the service will be set aside. Baker 
 v. Wales, 45 How. 137, 14 Abb. N. S. 231; Carpenter v. Spooner, 2 
 Code Rep. 140; affd., 2 Sandf. 716, 3 Code Rep. 23; Metcalf v. Clark, 41 
 Barb. 45. And see Goupil v. Simonson, 3 Abb. 474. 
 
 When attorney's clerk enticed defendant within the jurisdiction, the 
 summons was set aside. Wyckoff v. Packard, 20 Abb. N. C. 420. 
 
 When a defendant is induced to come within the jurisdiction of a 
 court by letter from the plaintiff requesting an interview, and is then 
 served at the office of plaintiff with a summons, — Held, that the service 
 should be set aside. Dunham v. Cressy, 21 N. Y. St. Rep. 266. 4 
 N. Y. Supp. 13. 
 
 Any trick or device which deprives a defendant of fair notice that 
 an action has been commenced is a fraud. Putting defendant in the 
 unknown possession of a summons, disguised so as to- conceal from 
 him its nature, just as he is entering upon a sea voyage, is not good 
 service; nor does the subsequent discovery by defendant of the con- 
 tents when he is beyond the limits of the State make it good. Bulkley 
 v. Bulkley, 6 Abb. 307.
 
 132 Method of Service. §31. 
 
 Service by wrongful entrance to house. Mason v. Libbey, 1 Abb. 
 N. C. 354. 
 
 When judgment set aside as having been procured through fraud in 
 the service. Mather v. /'arsons, 32 Hun, 338. 
 
 Fact of service; jurisdiction. — While the return of personal service 
 of the summons on defendants establishes jurisdiction prima facie, 
 yet if the summons v as not in fact served, no jurisdiction was ac- 
 quired. Iron Clad Mfg. Co. v. Benjamin K. Smith d Sons, 28 Misc. 
 Rep. 172. 59 N. Y. Supp. 332. See also § 253. "Court May Open 
 Default," and § 311, as to appeal in such case after notice of entry of 
 judgment. 
 
 Holidays. — See notes to §§ 17 and 37. Service of process is not in- 
 valid because made on a holiday. Laws 1881, chap. 30, designating 
 the holidays to be observed in the presentation and acceptance of 
 bills of exchange, notes, and checks, and the closing of public offices 
 was not intended to diminish the number of judicial holidays. Dids- 
 bury v. Van Tassell, 31 N. Y. St. Rep. 204; s. c, 56 Hun, 423. 
 
 Christmas day and Lincoln's birthday. — There is no law in this 
 State interdicting the service of any legal process or the holding of 
 any court on a holiday, and so service of a summons on a Christmas 
 day is legal. Didsbury v. Van Tassell, 56 Hun, 423. 
 
 Service of an order upon Lincoln's birthday is valid. Matter of 
 Borneman, 6 App. Div. 524." 
 
 Service of summons is good on a legal holiday. Walton v. Stafford, 
 162 N. Y. 558; Paige v. Shainwald. : 169 N. Y. 246; Flynn v. Surety 
 Co., 170 N. Y. 145, affg. s. c, 61 App. Div. 170. 
 
 Service of process is not invalid because made on Saturday half- 
 holiday. Didsbury v. Van Tassell, 56 Hun, 423. 
 
 Where the time within which a party may serve a pleading falls 
 upon a Saturday, that day, being a half-holiday, must be excluded in 
 computing the time, and the service upon the following Monday is 
 sufficient. Reynolds v. Palen, 13 Civ. Proc. Rep. 200. But see contra, 
 Fries v. Coar, 13 Civ. Proc. Rep. 152. And see Nichols v. Kelsey, 13 
 Civ. Proc. Rep. 154. 
 
 Lunatic. — An action cannot be brought against a lunatic judicially 
 declared such, without application to the court. The summons must 
 then be served upon his committee and upon the lunatic personally. 
 Code, §§ 426, 431. 432; Sovereill v. Dickson, 5 How. Pr. 109. 
 
 Marshal cannot serve a summons in his own action, where he is the 
 plaintiff. Smith v. Burlis, 23 Misc. Rep. 544. 
 
 Id.; return not conclusive. — Defendant may object that the summons 
 was not served in such a manner as to confer jurisdiction. Wheeler v. 
 N. V. d- Harlem R. R. Co., 24 Barb. 414. 
 
 Mechanic's liens. — Service of summons must be made at least eighi. 
 days before the return day. Code Civ. Proc, § 3404, which was added
 
 § 32. Order for Service of Summons, Etc. L33 
 
 by Laws 1897, chap. 419, p. 547. See § 3405 of said Code, for 
 service of summons by publication. 
 
 Modes of serving summons. — Sec notes on same in 21 Abb. N. C. 178. 
 
 Objections to service must be made by appearing specially for that 
 purpose only; a general appearance waives the objection. The defect 
 may be amended. See authorities cited to " Defect " in notes to this 
 section above, and notes to § 37. 
 
 Plaintiff cannot serve summons in his own case (§ 30; Code Civ. Proc, 
 § 425), but if he does, it is a mere irregularity, and the summons is 
 not void. Hunter v. Lester, 18 How. Pr. 347; s. c, 10 Abb. 260; Loscy 
 v. Stanley, 83 Hun, 420. 
 
 Return of personal service. — To authorize a justice to render judg- 
 ment against an absent defendant there must be a return showing per- 
 sonal service of summons. Manning v. Johnson, 8 Barb. 457. 
 
 Substituted service when a defendant cannot be found is now pro- 
 vided for by sections 32, 33, 34. 
 
 Summons not personally served, and defendant not appearing, he is 
 allowed to appeal within twenty days after personal service upon 
 him of written notice of entry of judgment. See § 311. And by sec- 
 tion 253 the " court may open default." 
 
 Sunday. — Process cannot be served on Sunday. Code Civ. Proc, § 09 ; 
 Vdn Vechten v. Paddock, 12 Johns. 178; Scott Shoe Co. v. Dancel, 63 
 App. Div. 172. 
 
 Service of notice of a motion on Sunday is irregular and void. Field 
 v. Park, 20 Johns. 140. Proceedings founded upon the service of a 
 writ on Sunday vacated. Rob v. Moffat, 3 Johns. 257. 
 
 Witness, nonresident. — A resident of another State coming to the 
 city to be examined as a witness, and attending in good faith for that 
 purpose only, is exempt irom the service of a summons upon him. 
 Seaver v. Robinson, 3 Duer, 622; Person v. Grier, 66 N. ^. 124; Brett 
 v. Broicn, 13 Abb. Pr. N. S. 295. 
 
 § 32. Order for service of summons; when defendant not 
 found. — An order for the service of a summons upon a de- 
 fendant residing within the city, may be made by the court 
 in the district in which an action is brought after an alias 
 summons has been duly issued, upon satisfactory proof by 
 the affidavit of a person not a party to the action, and the 
 return of a marshal, that proper and diligent effort has been 
 made to serve the summons upon the defendant, and that 
 the place of his sojourn cannot be found, or if he is within 
 the city that he avoids service so that personal service could 
 not be made.
 
 i:)l Order rou Service of Summons, Etc. §32. 
 
 Notes to section 32. 
 
 This section and sections 33, 34 and 35 are taken from Article II, 
 "Substitutes for Personal Service in Special Cases," §§ 435 to 445, 
 Code Civ. Proc. By Laws 1853, chap. 511, and Laws 1863, chap. 212, 
 the District Courts possessed the power of ••substituted service;'' 
 these laws were repealed by the "Repealing Ad " (Laws l880, chap. 
 245), since which time this court has been without the power now 
 restored. 
 
 Affidavit to obtain order. — Where it is shown by affidavit that the 
 defendant cannot, after diligent effort, be served at his place of busi- 
 ness or residence, and that no information can be obtained as to his 
 whereabouts, an order for substituted service may properly be granted. 
 Malloy v. Lennon, 22 Misc. Rep. 542, 49 N. Y. Supp. (83 St. Rep.) 
 1004, 27 Civ. Proc. Rep. 166. See also Xagle v. Taggart, 4 Abb. N. C. 
 144; Easton v. Malaioazi, 7 Daly, 147; Simpson v. Burch, 4 Hun, 315. 
 Amendment; error in name. — An error in the given name of the 
 plaintiff in the copy of a summons annexed to an order for substi- 
 tuted service may be corrected on motion; it does not require that 
 the summons and the order for the substituted service thereof and 
 such service be set aside. Farrington v. Muchmore, 52 App. Div. 247, 
 65 N. Y. Supp. (99 St. Rep.) 432, revg. 30 Misc. Rep. 218, 62 N. Y. 
 Supp. (96 St. Rep.) 165. 
 
 Infants. — Substituted service upon " any defendant " includes in- 
 fants. Steinhardt v. Baker, 25 App. Div. 197; affd., 163 N. Y. 410, 
 4!) X. Y. Supp. (83 St. Rep.) 357. 
 
 Substituted service may be made upon infants who are concealed 
 from service by their mother. Steinhardt v. Baker, 25 App. Div. 197; 
 affd., 163 N. Y. 410, 49 N. Y- Supp. (83 St. Rep.) 357. 
 
 Irregularity; misnomer. — Misnomer of the plaintiff, in a summons, is 
 a substantial irregularity, for which a substituted service will be set 
 aside. Farrington v. Muchmore, 30 Misc. Rep. 218, 62 N. Y. Supp. 
 (96 St. Rep.) 165. 
 
 Mechanic's lien actions; when personal service cannot be made. — If 
 personal service of the summons cannot be made upon a defendant in 
 an action in a court not of record, by reason of his absence from the 
 State, or bis concealment therein, such service may be made by leaving 
 a copy thereof at his last place oC residence, and by publishing a copy 
 of the summons once in each of three successive weeks in a newspaper 
 in the city or county where the property is situated. Code Civ. Proc, 
 § 3405. 
 
 Order for service on infants. — An order for substituted service upon 
 infants is sufficient, although it does not, in express terms, require 
 service upon the parent, where it follows the statute literally, and it 
 appears that service was made on the mother as the parent and per- 
 son with whom the infants resided. Steinhardt v. Baker, 163 N. Y. 
 410, 57 N. E. 629.
 
 §§ 33, 34. How Service Must be Made, Etc. 135 
 
 § 33. How such service must be made. — The order must 
 direct that the service of the summons be made, by leaving a 
 copy thereof, and of the order, at the residence of the defend- 
 ant, with a person of proper age, if upon reasonable applica- 
 tion, admittance can be obtained, and such person found who 
 will receive it ; or, if admittance cannot be obtained, nor such 
 a person found, by affixing the same to the outer or other 
 door of the defendant's residence, and by depositing another 
 copy thereof, properly enclosed in a post-paid wrapper, ad- 
 dressed to him, at his place of residence, in a post-office in 
 the borough in which he resides; or upon proof being made 
 by affidavit that no such residence can be found, service of 
 the summons may be made in such manner as the court may 
 direct. 
 
 Notes to section 33. 
 
 This section is taken from section 436 of the Code of Civil Proce- 
 dure. See notes to § 32. 
 
 Holiday. — Service of summons may be made on a, Didsbury v. Van 
 Tassel, 56 Hun, 423; People v. Van Tassel, 50 Hun, 105. 
 
 Summons not personally served, defendant not appearing, the remedy 
 is by appeal from the judgment. See § 311 and notes. 
 
 § 34. Papers to be filed ; proof of service — The order, and 
 the papers upon which it was granted, must be filed, and the 
 service must be made, not less than six days before the return 
 day of the summons; otherwise the order becomes inopera- 
 tive. On filing an affidavit showing service according to the 
 order, the summons is deemed served and the same proceed- 
 ings may be taken thereupon, as if personal service thereof 
 had been made except that no execution against the person 
 shall issue upon a judgment obtained after such service. 
 
 Notes to section 34. 
 
 This section is taken from section 437 of the Code of Civil Procedure. 
 See also notes to § 32. 
 
 Proof of service. — Substituted service by leaving the copy of sum- 
 mons at what was assumed to be the defendant's residence, but which 
 in fact was not, the defendant having left the State, is insufficient 
 to confer jurisdiction. Matter of Norton, 32 Misc. Rep. 224, 66 N. Y. 
 Supp. (100 St. Rep.) 317.
 
 136 Defendant When Allowed to Defend. §§ 35, 36. 
 
 The affidavit must be filed showing service according to the order. 
 The same kinds of proof are necessary in cases of substituted service 
 as when the service is by publication. Smith v. Fogarty, 6 Civ. Proc. 
 Rep. 366. 
 
 § 35. Defendant when allowed to defend. — Where the sum- 
 mons is served, pursuant to an order made as herein pre- 
 scribed, and the defendant so served does not appear, he or 
 his representative must upon good cause shown and upon 
 just terms be allowed to defend the action at any time within 
 six months after personal service of written notice thereof; 
 or if such notice has not been served, within two years after 
 the entry of the judgment. If the defense is successful, and 
 the judgment, or any part thereof has been collected or 
 otherwise enforced, such restitution may thereupon be com- 
 pelled as the court directs, but the title to property sold, to 
 a purchaser in good faith by virtue of an execution issued 
 upon the judgment, shall not be affected thereby. 
 
 Notes, to section 35. 
 
 This section is taken from section 445 of the Code of Civil Proce- 
 dure, the time limits being lessened. See also notes to § 32. 
 
 Terms to be imposed. — See Marvin v. Brandy, 30 N. Y. St. Rep. 694, 
 9 N. Y. Supp. 593. 
 
 § 36. Who may serve summons, et cetera. — The summons, 
 and in a proper case a copy of the complaint, or a precept in 
 summary proceedings, may be served by a marshal or by any 
 person not a party to the action, who is over the age of eigh- 
 teen years. Proof of service by such person other than a 
 marshal must be made by his affidavit which must state the 
 particular place, time and manner of service, and that the 
 affiant knew the person so served to be the person mentioned 
 and described in the summons as defendant therein. 
 
 Notes to section 36. 
 
 This section is substantially the same as section 1301 of the Con- 
 solidation Act (Laws 1882. chap. 410), and of section 3208 of the 
 Code of Civil Procedure, relating to inferior city courts, the latter of 
 which was a substitute for section 15 of the Laws of 1857, chap. 344.
 
 § 36. Who May Serve Summons, Etc. 137 
 
 See also § 425, Code Civ. Proc, as to who may serve the summons, 
 and § 302 of this act, " Process to be Served by Marshals." 
 
 As to the method of service, see § 31 and notes. 
 
 As to substituted service, and proof of service, see § 34. 
 
 This section should also be entitled " Proof of Service," as the latter 
 half of it relates to that subject. 
 
 Admission of service. — Plaintiff is not made incompetent to prove 
 admission of service. White v. Bogert, 73 N. Y. 256 ; Maples v. 
 Mackey, 15 Hun, 533. 
 
 Affidavit of service; Supreme Court rule. — Where personal service 
 of the summons, and of the complaint, or notice, if any accompany the 
 same, shall be made by any other person than the sheriff (marshal), it 
 shall be necessary for such person to state in his affidavit of service 
 his age, or that he is more than twenty-one years of age; when, and 
 at what particular place, and in what manner he served the same, and 
 that he knew the person served to be the person mentioned and de- 
 scribed in the summons as defendant therein; and also to state in 
 his affidavit that he left with defendant such copy, as well as deliv- 
 ered it to him. No such service shall be made by any person who 
 is less than eighteen years of age. Rule 18 of the Supreme Court, 
 made applicable by section 20. 
 
 Amendment of affidavit of service may be made even after judgment. 
 Jones v. U. S. Slate Co., 16 How. Pr. 120. 
 
 Attorney may serve the summons, and the court will take judicial 
 notice that he is at least twenty-one years of age, when his age is 
 omitted from the affidavit. Booth v. Kingsland, etc., 18 App. Div. 407. 
 See also Spaulding v. Lyon, 2 Abb. N. C. 203. 
 
 Copy served; proof of service of a summons in an action to recover 
 a penalty, the original being properly indorsed, is, it seems, not proof 
 that the summons served was so indorsed. People v. Walters, 7 Civ. 
 Proc. Rep. 406; s. c, 15 Abb. ' N. C. 461. 
 
 Disputing the fact of service before judgment. — The defendant may 
 dispute the service before appearing in the action. Litchfield v. Bur- 
 well, 5 How. Pr. 341, 1 Code R. N. S. 42 ; Van Rensselaer v. Chadwick, 
 7 Hows 297 ; Wheeler v. N. Y. & B. R. R. Co., 24 Barb. 44. 
 
 If it appears that he purposely kept out of the way to avoid per- 
 sonal service, he must satisfy the court that the summons did not in 
 fact reach him or come to his knowledge. Southwell v. Marryatt, 1 
 Abb. Pr. 218; Hilton v. Thurtson, 1 Abb. Pr. 318. 
 
 Where, from the affidavit of the defendant, his son and his attorney, 
 it appears that the summons was never served upon the defendant, 
 but left at his place of business during his absence, and against this 
 is the customary unsworn indorsement of the marshal that the sum- 
 mons had been personally served upon the defendant, the presumption 
 of regularity is rebutted by the defendant, and in absence of an affi-
 
 138 Wm> May Seeve Summons, Etc. § 30. 
 
 davit by the marshal a retrial of the cause should be granted. Burk- 
 hard v. Smith, 19 Misc. Rep. 31. 
 
 To make competent proof of the service of a summons, the affidavit 
 of the person who mad. the service is not necessary; the affidavit of 
 a third person, who swears unequivocally and positively to the ser- 
 vice, is sufficient. The presumption from such an affidavit is that the 
 affiant swears from pe; ional knowledge, not from hearsay. Murphy v. 
 Shea, 143 N. Y. 78. 
 
 Where a person testified that he served a summons, his testimony 
 is of greater weight than is the testimony of disinterested persons who 
 state that they stood by and saw no service made. Szerlip v. Baier, 
 21 Misc. Rep. 331. 
 
 Disputing the fact of service after judgment entered. — Under the 
 law, as it existed, by the Charter of 1897, as amended in 1901, great 
 difficulty was experienced to solve the question as to how to get rid of 
 a judgment entered against a defendant who claimed that he had 
 never been served with the summons. The judgment was not entered 
 by default, which a justice could open, as by the decision in Carpen- 
 ter v. Willett. 18 N. Y. 90, he was functus officio. After he had rendered 
 judgment there was no remedy except by appeal from the judgment 
 in pursuance of section 3057 of the Code of Civil Procedure, entitled 
 " Proceedings when error of fact is alleged," which was made ap- 
 plicable to this court by section 1367 of said Charter, entitled " Ap- 
 peals." In the case of Edel v. McCone, 16 Daly, 216, upon a motion 
 by defendant to set aside a judgment on the ground that he had not 
 been served with the summons, the plaintiff objected that the court 
 had no jurisdiction under section 1367 of the Consolidation Act, en- 
 titled " Opening defaults and setting aside judgments." but the plain- 
 tiff was held to be estopped from making such objection because he 
 had given proof of personal service on which judgment was entered. 
 In Tracy v. Shannon, 22 Abb. N. C. 136, the court struggled with 
 the question and said the remedy was by appeal upon the alleged error 
 of fact (§ 3057), or if the time to appeal had elapsed before the de- 
 fendant was aware of the judgment, his remedy was in equity. 
 
 In Iron Clad Mfg. Co. v. Benjamin E>. Smith & Sons, 28 Misc. Rep. 
 172, 54 N. Y. Supp. 332, it was held, under section 3057 of the Code 
 and section 1367 of the Charter, that the return of personal service 
 of the summons on defendant establishes jurisdiction prima facie, yet 
 if the summons was not in fact served, no jurisdiction is acquired. 
 
 This troublesome question, and procedure as indicated, has now 
 been set at rest by the repeal of section 1367 of the Charter, and a 
 revision of the sections of the Code of Civil Procedure, which had 
 been made applicable to this court by it, omitting, among others, sec- 
 tion 3057 of the Code of Civil Procedure, leaving it now only ap- 
 plicable, as it originally was, to justices' courts in the country, and
 
 § 37. Keturn Day. 139 
 
 by section 1, subdivision 19, of this act, giving this court jurisdic- 
 tion, generally, to set aside any judgment upon any ground. See 
 also " Summons Not Personally Served." And defendant not appear- 
 ing, the remedy is by appeal from the judgment and not by motion to 
 open default, for there is no default. See § 311 and notes. 
 
 Insufficient returns. — The following have been held to be insufficient: 
 "Omitting title of cause." Litchfield v. Burweli, 5 How. 341. " Served 
 copy left the 9th day of February, 1869." Sperry v. Reynolds, 65 
 N. Y. 179. 
 
 Marshal cannot serve summons in an action in which he is the plain- 
 tiff. Smith v. Burlis, 23 Misc. Rep. 544. 
 
 No fee allowed to person serving summons other than a marshal. — 
 See § 302. 
 
 Objection. — The defendant must appear and make his objection to 
 the return or service. Hawley v. Wilson, 1 Hilt. 259. 
 
 Plaintiff serving the summons is a mere irregularity, and the process 
 is not void. Hunter v. Lester, 18 How. Pr. 347; s. c, 10 Abb. 260; 
 Losey v. Stanley, 83 Hun, 420. 
 
 Policeman may serve all process and papers and have the powers of 
 a marshal in action by the health department. Charter § 1262. 
 
 Sufficient return. — " Personally served, and by copy on E. L. W., a 
 managing editor of defendants," it was held sufficient to give jurisdic- 
 tion of the corporation, that the justice was not bound to require 
 further evidence of the official position or character of the agent on 
 whom the process was served. N. Y. & Erie R. R. Co. v. Purdy, 18 
 Barb. 574. 
 
 Summary proceedings. — The service of a precept in summary pro- 
 ceedings, latter part of, provided for in section 302 of this act. 
 
 § 37. Return day — The return day mentioned in the sum- 
 mons must not be more than twelve days from its date and 
 except in the case where an order of arrest had been issued, 
 must be served at least six days before the time of appear- 
 ance. 
 
 Notes to section 37. 
 
 This section is part of section 1298 of the Consolidation Act (Laws 
 1882, chap. 410), with the "Short summons," or nonresident pro- 
 vision, omitted. 
 
 As to " order of arrest " provisions, see § 56. As to other or alias 
 summons, see § 30. As to service of summons on legal holidays, Satur- 
 day and Sunday, see § 31 and notes. 
 
 Amendment. — In general the court will permit defective process to 
 be amended, in order to promote the purposes of justice. Boyd v. 
 Vandenkemp, 1 Barb. Ch. 274.
 
 140 Retubn Day. § 37. 
 
 The general subject of amending process at common law and under 
 the statute discussed. Leetch v. Atlantic Mut. Ins. Co., 4 Daly. 518. 
 
 Computation of time. — In computing time, the day of the service is 
 excluded, and the return day is included (Code, § 788), so that a 
 summons, dated on the 1st, must not be returnable later than the 13th. 
 2 Hill, 375; 18 Alb. L. J. 437. See also Taylor v. Corbiere, 8 How. 
 385; Euston v. Chamb rlain, 3 How. 412. 
 
 The reference made in section 788 of the Code of Civil Procedure 
 does not limit the instances in which the rule of computation should 
 be applied, but makes the rule applicable in sections originating in 
 courts not of record. Dorsey v. Pike, 40 Hun, 112. 
 
 The rule is whenever a whole day, and every moment of it, can be 
 counted, then it should be; but wherever, if counted, the party would 
 in fact have but a fractional part of it, it should not be. Phelan v. 
 Douglas, 11 How. Pr. 193, 8 Barb. 384, 28 Barb. 284. 
 
 In statute time, the day on which the time begins to run is ex- 
 cluded. Judd v. Fulton, 4 How. Pr. 298. 
 
 Fraction of a day will not be noticed except when material on the 
 question of a lien. Baden v. Buddensick, 49 How. 241; Ball v. 
 Mander, 19 How. 468, 10 Wend. 422. 
 
 Date of return. — The action was dismissed on the ground that the 
 copy summons served did not contain the date of the return, but 
 the record not showing that the paper purporting to be a copy was 
 served at all, and it appearing from the return and affidavit of the 
 marshal, and the affidavit of plaintiff's attorney that a copy of the 
 summons was personally served, which was not traversed, — Held, that 
 the judgment should be reversed. Caldwell v. De Korven, 66 N. Y. 
 Supp. 309. 
 
 Day; mode of computing day; night time. — A calendar day includes 
 the time from midnight to midnight. Sunday or any day of the 
 week specifically mentioned means a calendar day. A number of days 
 specified as a period from a certain day within which or after or before 
 which an act is authorized or required to be done, means such number 
 of calendar days exclusive of the calendar day from which the reckon- 
 ing is made. Sunday or a public holiday, other than a half holiday, 
 must be excluded from the reckoning if it is the last day of any such 
 period or if it is an intervening day of any such period of two days. 
 In computing any specified number of days, weeks, or months, from 
 a specified event, the day upon which the event happens is deemed 
 the day from which the reckoning is made. The day from which any 
 specified number of days, weeks, or months of time is reckoned shall 
 be excluded in making the reckoning. 
 
 Night time includes the time from sunset to sunrise.
 
 § 37. Return Day. 141 
 
 Statutory Construction Act, § 27, as amended by chap. 447, Laws 
 1894. See Bristed v. Harroll, 20 Misc. Rep. 348; Altman v. Syme, 103 
 N. Y. 54. 
 
 Holidays. — As to what are legal, public, and half -holidays see notes 
 to §§ 17, 31, and 37. 
 
 Mechanic's lien action. — For the return day and proceedings on the 
 return day, see §§ 3404 and 3406, Code Civ. Proc. 
 
 Objections to the service, the summons, complaint, or other process 
 should be made before appearing generally, joining issue, answer, or 
 pleading, otherwise the objection is waived. An appearance in court 
 should be stated to be for the specific purpose of the objection only. 
 Sperry v. Mayor, 1 E. D. Smith, 361; Cunningham v. Phillips, 1 E. D. 
 Smith, 417; Andrews v. Thorp, 1 E. D. Smith, 615; Bray v. Andrews, 
 1 E. D. Smith, 387; Hogan v. Baker, 2 E. D. Smith, 22; Dempsey v. 
 Paige, 4 E. D. Smith, 218; Andreius v. Bull, 4 E. D. Smith, 384; Inger- 
 soll v. Gillice, 3 E. D. Smith, 387 ; Miln v. Russell, 3 E. D. Smith, 303 ; 
 Robinson v. West, 1 Sandf. 19; Clapp v. Graves, 26 N. Y. 418; Abra- 
 hamson v. Koch, 7 Misc. Rep. 122. 
 
 The objection that a summons was not properly served is not avail- 
 able in an answer or demurrer, but only on motion to set the proceed- 
 ings aside. Nones v. Hope Mut. Life Ins. Co., 8 Barb. 541, 5 How. 96, 
 3 Code Rep. 161. 
 
 Order of arrest. — The summons accompanying an order of arrest 
 must be made returnable immediately. § 58. 
 
 Substituted service. — The defendant upon whom such service has 
 been made is not in default until the expiration of six days after the 
 filing of an affidavit showing service according to the order. Smith v. 
 Fogarty, 6 Civ. Proc. Rep. 366. 
 
 Sunday extends from midnight to midnight.' Pulling v. People, 8 
 Barb. 384; Butler v. Kelsey, 15 Johns. 177. 
 
 Process cannot be made returnable on Sunday. Gould v. Spencer, 
 5 Paige,' 541 ; Boyd v. Vandenkemp, 1 Barb. Ch. 373; Arctic Fire Ins. 
 Co. v. Hicks, 7 Abb. Pr. 204. 
 
 Sunday, when it is an intervening day, is counted, and is not excluded 
 in computing time. King v. Dowdall, 2 Sandf. 131; Easton v. Chamber- 
 lain. 3 How. Pr. 412; Taylor v. Corbiere, 8 How. Pr. 385, 10 Wend. 422, 
 19 How. Pr. 468. When the last day comes on Sunday it must be ex- 
 cluded, and service upon the next day meets the requirements of this 
 section. Gribbon v. Freel, 93 N. Y. 93. 
 
 The law will not take notice of parts of a day, and where a statute 
 permitting a party to move upon notice to set aside the verdict of a 
 jury expressly provides that the statute shall take effect immediately, 
 and the case is tried upon the very day when the statute by its terms 
 went into effect, the courts, deeming the statute to be in its nature 
 remedial, will hold the statute to be applicable to the case tried upon 
 the day in question. Douglass v. Seiferd, 18 Misc. Rep. 188.
 
 142 [ndoesement Upon Summons. §38. 
 
 § 38. Indorsement upon summons — In an action to recover 
 a penalty or forfeiture given by a statute or ordinance if a 
 copy of the complaint is not delivered to the defendant with 
 a copy of the summons, a general reference to the statute or 
 ordinance must be indorsed upon the copy of the summons 
 so delivered in the following form : " According to the pro- 
 visions of," et cetera; adding such a description of the stat- 
 ute or ordinance as will identify it with convenient cer- 
 tainty, and also specifying the section if penalties or for- 
 feitures are given, in different sections thereof, for different 
 acts or omissions, and the proof of service of such summons 
 must show that the copy served on the defendant likewise 
 had such indorsement thereon. 
 
 Notes to section 38. 
 
 This section is substantially section 1897 of the Code of Civil Pro- 
 cedure, and is taken therefrom. See also § 1, subd. 7, and § 27 and 
 notes. 
 
 In Mayor, etc. v. Eisler, 10 Daly, 396; s. c, 2 Civ. Proc. Rep. 125, it 
 was held that the requirements of section 1897 of the Code of Civil 
 Procedure extend to an action by the corporation of the city of New 
 York to recover a penalty for violation of a corporation ordinance. 
 
 Appearance is a waiver of indorsement on summons in an action to 
 recover a penalty. Vernon v. Palmer, 48 N. Y. Super. 231; Bissell v. 
 N. Y. C. & H. R. R. R. Co., 67 Barb. 385. 
 
 Copy of summons served must be so indorsed. — Proof of service of 
 a summons, the original being properly indorsed, is, it seems, not proof 
 that the summons served was so indorsed. People v. Walters, 7 Civ. 
 Proc. Rep. 406, 15 Abb. N. C. 461. 
 
 Insufficient reference to the statute. — Statement of the object of the 
 action contained in the body of the summons is not a sufficient com- 
 pliance with the statute. In such an action the statute must be liter- 
 ally complied with, and the notice must be indorsed upon, and not 
 embodied in the summons. Cox v. N. Y. C. & H. R. R. R. Co., 61 Barb. 
 615, criticised, per Bockes, J., Schoonmaker v. Brooks, 24 Hun, 553. 
 
 Held, in the same case, that the rule was the same, although the com- 
 plaint accompanied the summons. This point ruled otherwise in 
 People v. Bull, 42 N. Y. Super. 19; which is in accordance with the 
 section as now framed. 
 
 Judgment by default. — A judgment by default is not void because 
 the summons was not properly indorsed though reversible on appeal. 
 Spoor v. Cornell, 12 Civ. Proc. Rep. 319.
 
 § 39. Indoksement Upon Summons, Etc. 143 
 
 No jurisdiction. — If the summons is not indorsed the court gets no 
 jurisdiction. Bisscll v. A'. Y. C. & H. R. R. R. Co., 07 Barb. 385. 
 
 Ordinances of the board of health. — Where proceedings are instituted 
 against any person for a violation of an ordinance of the Board oi 
 Health of the city of New York, the particular ordinance violated 
 should be specified in the complaint. People ex rcl. v. The Justices, 12 
 Hun, 05. See also Prussia v. Gunther, 10 Abb. N. C. 230. 
 
 Other cases. — As this court has jurisdiction to recover penalties 
 (§ 1, subd. 7), it will be found tiiere are a large number of cases in 
 which such an action may arise. For instance: For selling articles 
 with a false stamp or bond. Low v. Hall, 47 N. Y. 104. For viola- 
 tion of the game laws. Bellows v. Elmendorf, 7 Lans. 402; Phelps 
 v. Racey, 00 N. Y. 10. For selling lottery tickets. Roediger v. Sim- 
 mons, 14 Abb. N. S. 250. For giving theatrical exhibitions without 
 a license. People v. Koll, 3 Keyes, 200. For throwing ashes into New 
 York harbor. Board of Commissioners of Pilots v. Frost, 5 Daly, 253. 
 
 Sufficient reference to the statute. — In an action for the recovery 
 of a penalty for violation of a city ordinance, the ordinance was par- 
 ticularly mentioned and its substance indorsed upon the summons. 
 Held, that this was sufficient. The Mayor, etc. v. Wood, 15 Daly, 341. 
 
 A summons issued in an action to recover penalties for a violation 
 of the provisions of the Excise Law had upon it the following indorse- 
 ment : " This summons is issued) to collect penalties for violation of 
 sections 13 and 14 of the act to suppress intemperance and to regulate 
 the sale of intoxicating liquors, passed April 10, 1857, and the acts 
 amendatory thereof " Held, that the indorsement was sufficient. 
 Ripley v. McCann, 34 Hun, 112. 
 
 Summons not indorsed. — A judgment is not void because the sum- 
 mons was not properly indorsed in action for penalty though reversible 
 on appeal. Spoor v. Cornell, 12 Civ. Proc. Rep. 319. But see Bissell 
 v. A 7 . Y. 0. & H. R. R. R. Co., 07 Barb. 385. 
 
 Waiver. — Appearance is a waiver of indorsement. Vernon v. Palmer, 
 48 N. Y. Super. 231; Bissell v. A 7 . Y. C. & H. R. R. R. Co., 07 Barb. 
 385. 
 
 Willful trespass. — The summons in an action for willful trespass to 
 land, though claiming treble damages, need not be indorsed. Sprague 
 v. Irwin, 27 How. Pr. 51. 
 
 § 39. Indorsement upon summons; where execution against 
 the person may be issued. — In an action where an execution 
 may issue against the person upon a judgment rendered in 
 favor of the plaintiff, unless a verified complaint is served 
 with the summons, a general reference to that fact must be 
 indorsed by the clerk upon the summons and upon the copy
 
 144 Parties; Appeabamtcb of. §40. 
 
 to be served on defendant in the following form : " Plaintiff 
 claims defendant is liable to arrest and imprisonment in this 
 case." In the event of there being no such indorsement, no 
 execution against the person shall issue, and the proof, of 
 service of such summons must show that the copy served 
 on the defendant likewise had such indorsement upon it. 
 
 Notes to section 39. 
 
 This section is new and has been enacted in order that a defendant 
 who is sued in a case where a body execution might issue may be 
 apprised of the same. See § 38 and notes, and § 271 and notes. 
 
 Judgment where defendant is liable to arrest. — See § 251. 
 
 § 40. Parties ; appearance of. — A party to an action in the 
 municipal court of the city of New York, who is of full age, 
 may appear and prosecute or defend the same, in person or 
 by an attorney, at his election, unless he has been judicially 
 declared to be incompetent to manage his affairs. 
 
 Notes to section 40. 
 
 This section is taken from section 2880 of the Code of Civil Pro- 
 cedure and was formerly section 1294 of the Consolidation Act (Laws 
 1882, chap. 410), which was the same as Laws 1857, chap. 344, § 9. 
 
 Appearance. — The word " appearance " means a voluntary submission 
 to the jurisdiction in whatever form manifested. People v. Cowan, 
 146 N. Y. 348. 
 
 Appearance without objection waives jurisdiction. Abrahamson v. 
 Koch, 7 Misc. Rep. 122. 
 
 Where the jurisdiction of a justice in an action depends upon the 
 voluntary appearance of a party, such party may assail or defend 
 against a judgment rendered against him by showing that he did not 
 appear, or that the appearance of any one for him was unauthorized. 
 The provision of the Revised Statutes (1 R. S. 233, § 45). providing 
 that the authority to appear in justice's court by attorney must be 
 proved, unless admitted by the opposite party, was designed simply to 
 protect the opposite party from an unauthorized appearance. A 
 waiver of proof by such party cannot affect the rights of the party for 
 whom the appearance is made. The distinction in this respect between 
 justices' courts and courts of record having attorneys pointed out. 
 Sperry v. Reynolds, 65 N. Y. 180. 
 
 Where dofondant's wife appears on the return day of a summons to 
 explain his absence, she is not his agent, so as to constitute an appear- 
 ance by him. tibrombcrg v. Carnese, 35 Misc. Rep. 289.
 
 §40. Parties; Appearance of. 145 
 
 Id.; failure to appear on adjourned day and dismissal of the action 
 therefor loses jurisdiction of defendant, and plaintiff cannot thereafter 
 restore the cause and take an inquest. Abrams v. Fine, 28 Misc. Rep. 
 533, 59 N. Y. Supp. 550. 
 
 Appearance by an attorney must be by filing a verified pleading or 
 a written notice of appearance, or costs will not be allowed. See § 332. 
 
 Attorney's authority to appear for a party is to be presumed. Oakley 
 V. Workingmen's Union Ben. Soc., 2 Hilt. 487; People ex rel. Allen v. 
 Murray, Justice, 50 N. Y. St. Rep. 535. The attorney who appears for the 
 plaintiff is not bound to produce his authority, unless required by the 
 defendant (Silkman v. Boiger, 4 E. D. Smith, 436) ; but he must have 
 his authority to appear, if required to do so by the adverse party. 
 Timmerman v. Morrison, 14 Johrs. 359; Beaver v. Van Every, 2 Cow. 
 429; Hishfield v. Landman, 3 E. D. Smith, 208. Parol authority to 
 appear is sufficient, and the attorney himself is a competent witness 
 to prove such authority. Hotchkiss v. Lcroy, 9 Johns. 142, n. ; Murray 
 v. House, 11 Johns. 464; Scott v. Elmendorf, 12 Johns. 317; Tallock- 
 v. Cunningham, 1 Cow. 256; Pixley v. Rutts, 2 Cow. 421. The proper 
 time to require proof of the attorney's authority is upon the appear- 
 ance and before joining issue and going to trial, and it is too late after 
 the trial has commenced. Treadwell v. Bruder, 3 E. D. Smith, 597. 
 Unless the contrary is shown by proof, the appellate court will assume 
 that a person appearing for a defendant was duly authorized so to do 
 as his attorney or agent. Oakley v. Workingmen's Union Ben. Soc, 
 2 Hilt. 487. 
 
 If the authority of the attorney to appear is in writing, the hand- 
 writing of the client may be established presumptively. Where letters 
 were directed by the attorney to the client, at the residence of the latter, 
 in relation to the subject-matter of a suit, and several answers were 
 received in due course of mail, purporting to be signed by the client, 
 all in the same handwriting, which letters contained a general authority 
 to the attorney to take such steps, legal or otherwise, as he might deem 
 advisable, for the recovery of the debt, — Held, the authority was suffi- 
 ciently proved. Bush v. Miller, 13 Barb. 481. The authority of the 
 attorney to appear may be inferred from other matters and circum- 
 stances, such as being attorney in other cases, and informing his client 
 of his appearance and no objection expressed. Bogardus v. Livingston, 
 2 Hilt. 236. 
 
 Proof as to an attorney's authority to bring an action for personal 
 injuries, his right where the action is settled by his client. Whitesell 
 v. New Jersey R. R. Co., 68 App. Div. 82. 
 
 An attorney appearing for a party without authority makes him 
 liable for damages. Blodgett v. Conklin, 9 How. Pr. 442; O'Hara v. 
 Brophy, 24 How. Pr. 379; Ellsworth v. Campbell, 31 Barb. 134; Bo- 
 gardus v. Livingston, 2 Hilt. 236. 
 
 10
 
 146 Parties; Appearance of. § 40. 
 
 An attorney who commences an action without authority from the 
 plaintiff is not entitled to compensation or costs. Whitesell v. New 
 Jersey & II. /.'. Ry. £ Fury Co., US App. Div. 82, 74 N. Y. Supp. (108 
 St. Rep.) 217. 
 
 General appearance for defendant by an attorney confers jurisdiction, 
 although lie was retained to appear only specially to have service of 
 summons set aside, if he had authority to appear at all. Kramer v. 
 G crlach, 28 Misc. Rep. 525, 59 N. Y. Supp. 855. 
 
 A mere authority to an attorney to institute a suit, being revocable 
 by the client, only entitles the attorney to compensation for services 
 performed before its revocation. Whitesell v. New Jersey <fc H. R. 
 Ry. & Ferry Co., 68 App. Div. 82, 74 N. Y. Supp. (108 St. Rep.) 217. 
 
 Not an attorney. — Where a person, not regularly admitted to prac- 
 tice in the courts of record of the State of New York and not a party 
 to an action, conducts it in this court, the judgment rendered therein 
 is void as violative of Code Civ. Proc, §§ 63, 64. Kaplan v. Berman, 
 37 Misc. Rep. 502. 
 
 Attorneys and counselors-at-law. — Sections 55 to 81 of the Code of 
 Civil Procedure treat of attorneys and counselors-at-law. The following 
 sections are here inserted as of importance and beneficial to the orderly 
 administration of justice in this court: 
 
 Party may appear in person or by attorney. — A party to a civil action 
 who is of full age may prosecute or defend the same in person or by 
 attorney, at his election, unless he has been judicially declared to be 
 incompetent to manage his affairs. Each provision of this act relating 
 to the conduct of an action wherein the attorney for the party is men- 
 tioned, includes a party prosecuting or defending in person, unless 
 otherwise specially prescribed therein, or unless that construction is 
 manifestly repugnant to the context. If a party has an attorney in 
 the action, he cannot appear to act in person where an attorney may 
 appear or act, either by special provision of law, or by the course and 
 practice of the court. Code Civ. Proc, § 55. 
 
 Clerks, etc., sheriffs, etc., not to practice. — The clerk, deputy clerk, 
 or special deputy clerk, a sheriff, under sheriff, deputy sheriff, sheriff'* 
 clerk, constable, coroner, crier, or attendant of a court, shall not, dur- 
 ing his continuance in office, practice as attorney or counselor in any 
 court. Code Civ. Proc, §§ 61, 62. 
 
 None but attorneys to practice in New York city. — A person shall 
 not ask or receive, directly or indirectly, compensation for appearing as 
 attorney in a court or before any magistrate in the city of New York, 
 or make it a business to practice as an attorney in a court or before a 
 magistrate in said city, unless he has been regularly admitted to prac- 
 tice as an attorney or counselor in the courts of record of the State. 
 Code Civ. Proc, § 63. 
 
 Penalty for violation, or permitting violation of last section. — A per- 
 son who violates the last section is guilty of a misdemeanor, and shall
 
 §40. Parties; Appearance of. 147 
 
 be punished by imprisonment in the county jail, not exceeding- one 
 month, or by a fine of not less than $100 or more than $250, or by 
 both such fine and imprisonment. A judge, justice, or magistrate within 
 the city of New York, who knowingly permits to practice in his court 
 a person who has not been regularly admitted to practice in the courts 
 of record of this State, is guilty of a misdemeanor, and shall be pun- 
 ished as prescribed in this section. But this and the last section do 
 not apply to a case where a person appears in a cause to which he is 
 a part}'. Code Civ. Proa, § 04. 
 
 Death or disability of attorney; proceedings thereupon. — If an attor- 
 ney dies, is removed or suspended, or otherwise becomes disabled to 
 act, at any time before judgment in an action, no further proceeding 
 shall be taken in the action against the party for whom he appeared 
 until thirty days after notice to appoint another attorney has been 
 given to that party, either personally or in such other manner as the 
 court directs. Code Civ. Proc, § 65. 
 
 Agreement as to compensation. — The compensation of an attorney 
 or counselor for his services is governed by agreement, express or im- 
 plied, which is not restrained by law. From the commencement of an 
 action or special proceeding, or the service of an answer containing a 
 counterclaim, the attorney who appears for a party has a lien upon 
 his client's cause of action, claim, or counterclaim, which attaches to a 
 verdict, report, decision, judgment, or final order in his client's favor, 
 and the proceeds thereof in whosoever hands they may come; and the 
 lien cannot be affected by any settlement between the parties before 
 or after judgment or final order. The court, upon the petition of the 
 client or attorney, may determine and enforce the lien. Code Civ. Proc, 
 § 66. 
 
 Punishment for deceit, etc. — An attorney or counselor, who is guilty 
 of any deceit or collusion, or consents to any deceit or collusion, with 
 intent to deceive the court or a party, forfeits, to the party injured by 
 his deceit or collusion, treble damages. He is also guilty of a misde- 
 meanor. Code Civ. Proc, § 70. 
 
 Id.; for willful delay of action. — An attorney or counselor who will- 
 fully delays his client's cause, with a view to his own gain, or will- 
 fully receives money, or an allowance for or on account of money, 
 which he has not laid out or become answerable for, forfeits to the party 
 injured treble damages. Code Civ. Proc, § 71. 
 
 Attorney not to lend his name. — If an attorney knowingly permits 
 a person, not being his general law partner, or a clerk in his office, to 
 sue out a mandate, or to prosecute or defend an action in his name, he, 
 and the person who so uses his name, each forfeits to the party against 
 whom the mandate has been sued out, or the action prosecuted or de- 
 fended, the sum of $50, to be recovered in an action. Code Civ. Proc, 
 § 72.
 
 14S Parties; Appearance <>k. § 40. 
 
 Attorneys, etc., privileged from arrest. — Is privileged from arrest 
 while employed in a cause. See Lode Civ. Proc, § 565. 
 
 Attorneys or counselors cannot be sureties or become bail. — See 
 Rule 5 of the Supreme C >urt General Rules of Practice: Miles \. Clark, 
 4 Bosw. u.">2 ; Craig \. Scott, 1 Wend. :','>-. Wheeler \. Wilcox, 7 Abb. 7:!; 
 Coster v. Watson, L5 Johns. 535. 
 
 Where however, without objection, he becomes surety, he is liable 
 same as any other person. Wilmont v. Meserole, 48 How. 430; s. c, 
 16 Abb. N. S. 309. 
 
 Attorney who has served the summons cannot act as such when he 
 has been deputed to and has served the summons in the action. Croker 
 on Sheriffs, 382; Ford v. Smith, 11 Wend. 74; Knight v. Odelt, 18 How. 
 Pr. 279. 
 
 Duty to act as guardian of infant defendant, when ordered by the 
 court. Rule 50, Supreme Court. 
 
 Attorney's authority to settle. — In the absence of specific authority, 
 an attorney to whom a claim has been transmitted by a creditor for 
 collection has no authority to accept a promissory note of the debtor, 
 or that of a third person, in payment of the claim. Firilay v. Keyword, 
 35 -Misc. Rep. 266, revg. s. c, 34 Misc. Rep. 818. 
 
 Clerk's fraud. — An attorney having an arrangement with his clerk to 
 share a counsel fee with him is responsible for the clerk's fraud upon 
 the client. Matter of McGuinness, 69 App. Div. 606. 
 
 Costs will not be allowed to the prevailing party unless he appeared 
 by an attorney who filed a verified pleading or a written notice of 
 appearance. See § 332. 
 
 Failure to appear on adjourned day and dismissal of the action there- 
 for causes loss of jurisdiction of defendant, and plaintiff cannot there- 
 after restore the cause and take an inquest. Abrams v. Fine, 28 Misc. 
 Pep. 533, 59 X. Y. Supp. 550. 
 
 Inexperience or negligence of attorney. — 'Where an attorney, through 
 negligence or inexperience, performs useless labor, he cannot recover 
 therefor, nor can he recover for services in an action wherein special 
 evidence is necessary by statute, where he has failed to first ascertain 
 the existence of such evidence. Leo v. Leyser, 30 Misc. Rep. 549, 73 
 N. Y. Supp. (107 St. Rep.) 941. 
 
 Where the negligence of an attorney in failing to plead the statute 
 cf frauds as a defense to an action brought against his client, results 
 in the client's entire defeat therein, the latter may counterclaim his 
 resulting damages against the attorney's demand for the value of his 
 services in that action. Patterson v. Powell, 31 Misc. Rep. 20. 
 
 Lien of attorney. — An attorney's lien on his client's cause of action 
 for fees and costs under Code Civ. Proc, § 66, where a plea of accord 
 and satisfaction lias been interposed, cannot be enforced without an 
 order of court to allow the prosecution of the action, notwithstanding
 
 § 41 Guardian ad Litem. 149 
 
 the settlement. Doyle v. New York, O. d W. Ry. Co., 66 App. Div. 398, 
 72 N. Y. Supp. (106 St. Rep.) 936. 
 
 Notice of lien not necessary. — An attorney need not give the other 
 side notice of his lien, as section 66 is, in and of itself, notice. Dolliver 
 v. American Boat Co., 32 Misc. Rep. 264; Yrooman v. Pickering, 25 
 Misc. Rep. 277. 
 
 Enforcement of attorney's lien. — A settlement made by the defend- 
 ant, after judgment, directly with a destitute plaintiff, in disregard of 
 the agreed lien of her attorney for one-half of the amount of any settle- 
 ment and costs, will be set aside at the instance of the attorney, al- 
 though he had never given either the defendant or his attorney notice 
 of the lien. Yrooman v. Pickering, 25 Misc. Rep. 277. 
 
 The lien attaches to the sum or value agreed upon in settlement, and 
 he should foreclose it thereon by a suit in equity, making his client 
 and the defendant parties, and may obtain an absolute judgment against 
 his client for the amount of his compensation, with an alternative pro- 
 vision that the defendant shall pay the amount found due under the 
 lien, if it cannot be collected of the client. Dolliver v. American Boat 
 Co., 32 Misc. Rep. 264. 
 
 Marshal. — By section 293 a marshal is prohibited to appear or act 
 on behalf of any party in this court. 
 
 Party may settle notwithstanding attorney. — Notwithstanding the 
 provisions of section 66 of the Code of Civil Procedure, giving plain- 
 tiff's attorney a lien on his client's cause of action, the latter may, 
 before trial and without regard to his attorney, settle the action 
 with the opposite party, and, provided the settlement is not collusive 
 or fraudulent as to the attorney, that is to say, not intended by the 
 parties to prevent him from getting his compensation, but is honest, 
 the attorney's lien on the cause of action thereby ceases, and he may 
 not continue the action for his own benefit, and to foreclose his lien. 
 Dolliver v. American Boat Co., 32 Misc. Rep. 264. 
 
 Value of services of an attorney. — In determining the value of ser- 
 vices of an attorney, besides the conditions connected with the sub- 
 ject-matter, the professional standing of the claimant, his reputation 
 in the specialty in which he was engaged, and the importance of 
 the work done, measured by the values involved, the time taken, and 
 the result of the services, are to be considered. Schlesinger v. Dunne, 
 36 Misc. Rep. 529, 73 N. Y. Supp. (107 St. Rep.) 1014. 
 
 § 41. Guardian ad litem. — When a guardian is necessary 
 he must be appointed by the court as follows : 
 
 1. If the infant be plaintiff, the appointment must be 
 made before the summons is issued, upon the application of 
 the infant, if he be of the age of fourteen years or upwards;
 
 150 Giakiman ad Litem. §41 
 
 if under thai ago, upon the application of some relative or 
 friend. The consent in writing of the guardian to be ap- 
 pointed and to be responsible for costs, if he fail in the 
 action, musl be filed with the clerk of the court, in the dis- 
 trict in which the action is brought, except in cases where a 
 free summons is provided for by this act. 
 
 2. After the service and return of a summons against an 
 infant defendant no other proceedings shall be taken in the 
 action, until a person has been appointed to appear as his 
 guardian for the purpose of the action. Upon the nom- 
 ination of the defendant, the court must appoint a proper 
 person for that purpose. If the defendant does not ap- 
 pear upon the return of the summons, or if he neglects or 
 refuses to nominate, the court may, on the application of 
 the plaintiff, appoint any proper person as his guardian. 
 The written consent of the person so appointed, must be 
 filed with the clerk of the court before his appointment. 
 The guardian so appointed is not responsible for any costs. 
 
 Notes to section 41. 
 
 This section is taken from section 1295 of the Consolidation Act 
 (Laws 1882, chap. 410), which has been repealed, and from section 
 2888 of the Code of Civil Procedure, which was the same as Laws 
 1857, chap. 344, § 11. 
 
 When to be appointed. — The appointment of guardian must be made 
 before the issuing of the summons, for if not made until after the sum- 
 mons issues, the proceedings are irregular. Hill v. Thacter, 2 Code R. 
 3; Smart v. McChesney, 14 Hun, 276; Croghan v. Livingston, 17 N. Y. 
 221. 
 
 An infant defendant must always have and appear by guardian (2 
 Johns. 192, 8 Johns. 418, 9 Johns. 160, 6 Wend. 526), even where the 
 infant is sued with others (2 Johns. 192, 11 Johns. 460, 14 Johns. 417, 
 11 Wend. 612), and a justice has no right to proceed with the action 
 until a guardian has been appointed. Harney v. Large, 51 Barb. 222. 
 
 He can arrest the trial and appoint a guardian. Harney v. Large, 
 51 Barb. 222. 
 
 Where defendant is an infant, and that objection is raised, the 
 justice must appoint a guardian ad litem for him, and his refusal to 
 do so is error. Jessurun v. Maclcie, 24 Hun, 624; s. c, 61 How. 261. 
 
 " It is for the protection of such persons against what the law ad- 
 judged to be their own incompetency to choose attorney, or to conduct
 
 §42. Parties; Who May be Joined. 151 
 
 their own litigations with suitable prudence and discretion." Per 
 Johnson, J., in Boylen v. McAvoy, 29 How. 278. 
 
 Failure to appoint a guardian ad litem for an infant defendant 
 is an irregularity for which the judgment must be reversed, if prop- 
 erly and timely presented. Frost v. Frost, 15 Misc. Rep. 167. 
 
 No judgment would be valid without such appointment. Fish v. 
 Ferris, 3 E. D. Smith, 569. 
 
 Consent to be responsible for costs must be signed and filed by guard- 
 ian ad litem as a condition of maintaining the action. Weinstraub v. 
 Metropolitan Life Ins. Co., 27 Misc. Rep. 540, 58 N. Y. Supp. 295. 
 
 Duty of attorney to act as guardian. — It shall be the duty of every 
 attorney or officer of the court to act as the guardian of any infant 
 •defendant, in any suit or proceeding against him, whenever appointed 
 for that purpose by an order of this court. And it shall be the duty 
 of such guardian to examine into the circumstances of the case, so 
 far as to enable him to make the proper defense, when necessary for 
 the protection of the rights of the infant; and he shall be entitled 
 to such compensation for his services as the court may deem reasonable. 
 
 But no order allowing compensation to a guardian ad litem shall be 
 made, except upon an affidavit, to be made by such guardian, if an at- 
 torney of vhe court ; or if the guardian be not an attorney, then on 
 affidavit to be made by an attorney of the court who has acted in 
 the matter in behalf of such guardian, showing that he has examined 
 into the circumstances of the case, and has, to the best of his ability, 
 made himself acquainted with the rights of his ward, and that such 
 guardian has taken all the steps necessary for the protection of such 
 rights, to the best of his knowledge, and as he believes, stating what 
 has been done by him for the purpose of ascertaining the rights of the 
 ward. Rule 50 of Supreme Court made applicable by section 20 of 
 this act. 
 
 Infant; right to bring action as provided for in section 468 of the 
 Code of Civil Procedure, is made applicable by section 3347 of said 
 Code. 
 
 Parent and child; wages. — In general, whatever a child earns belongs 
 to, and is to be recovered in the name of the parent; where there is 
 no agreement, express or implied, that payment may be made to the 
 child, the parent alone is entitled to his earnings, and the action 
 must be brought in his name. Shute v. Dorr, 5 Wend. 204; Letts v. 
 Brooks, Hill & Den. Supp. 36. 
 
 § 42. Parties ; who may be joined. — Parties plaintiff or 
 defendant may be joined as follows : 
 
 1. All persons having an interest in the subject of the 
 action, and in obtaining the judgment demanded, may be
 
 152 Parties; Who May be Joined. §42. 
 
 joined as plaintiffs, except as otherwise expressly prescribed 
 in this act. 
 
 2. Any person may be made a defendant who has or claims 
 an interest in the controversy adverse to the plaintiff, or 
 who is a necessary party defendant, for the complete deter- 
 mination or settlement of a question involved therein, ex- 
 cept as otherwise expressly prescribed in this act. 
 
 3. Every action must be prosecuted in the name of the 
 real party in interest, except that an executor or admin- 
 istrator, a trustee of an express trust, or a person expressly 
 authorized by statute, may sue, without,* joining with him 
 the person for whose benefit the action is prosecuted. A 
 person, with whom or in whose name, a contract is made 
 for the benefit of another, is a trustee of an express trust, 
 within the meaning of this section. 
 
 4. In an action or special proceeding a married woman 
 appears, prosecutes or defends alone or joined with other 
 parties as if she was single. It is not necessary or proper to 
 join her husband with her as a party in any action or special 
 proceeding affecting her separate property. The husband 
 is not a necessary or proper party to an action or special 
 proceeding to recover damages to the person or estate of his 
 wife, and all sums that may be recovered in such actions, 
 or special proceedings shall be the separate property of the 
 wife. The husband is not a necessary or proper party to 
 an action or special proceeding to recover damages to the 
 person, or estate, of another on account of the wrongful acts 
 of his wife committed without his instigation. 
 
 5. Two or more persons, severally liable upon the same 
 written instrument, including the parties to a bill of ex- 
 change or a promissory note, whether the action is brought 
 upon the instrument, or by a party thereto to recover against 
 other parties liable over to him; may, all or any of them, 
 be included as defendants in the same action, at the option 
 of the plaintiff, and the joinder of a person, as defendant 
 in an action, with another person as prescribed in this sec- 
 tion, does not affect his right, to any order or other relief, 
 to which he would have been entitled, if he had been sepa- 
 rately sued in the action. 
 
 * The comma after the word "without" is in the original.
 
 § 43. Defendants Jointly Liable. 153 
 
 Notes to section 42. 
 
 This is a new section: We pointed out in the Fourth Edition of thig 
 work, on page 141, in our note to section 1297 of the Consolidation 
 Act, entitled " The summons." that there was no mention made of 
 parties plaintiff in that section, and that there is no section in the 
 Consolidation Act treating of parties; but that provisions of law on 
 that subject were certainly necessary, and we thought the most ap- 
 propriate place to insert them was under section 1297. We further 
 pointed out that sections 446, 449, 450, and 454 of chapter 5, title II, 
 " Parties to Action." article first, " Parties Generally," of the Code 
 of Civil Procedure, are made applicable to this court by section 3347, 
 subdivision 3 of the Code. 
 
 The Legislature has now revised these sections of the Code and 
 embodied them in the five subdivisions of this section. 
 
 Subdivision 1 is taken as a whole from section 446. 
 
 Subdivision 2 is made up of section 447, which was not made ap- 
 plicable by section 3347. 
 
 Subdivisions 3 and 4 are the same as sections 449 and 450, re- 
 spectively. 
 
 Subdivision 5 is composed of sections 454 and 455. See also section 
 146, " What causes of action may be joined in the same complaint." 
 
 For decisions upon these sections of the Code we refer the practi- 
 tioner to the numerous and various decisions to be found in the 
 copiously annotated Codes of Civil Procedure. 
 
 Department of health. — Parties defendant to an action by the depart- 
 ment of health may be all who participated in the act, refusal, or 
 omissions complained of, and the recovery may be against one or more, 
 as the justice directs. Charter, § 1262. 
 
 Milk and cream cans. — The agent of the owner, dealer, or shipper has 
 full power to sue in his own name without joining the real party in 
 interest that he represents, and may join in one proceeding as plain- 
 tiffs or defendants, or both, as many different persons as shall jointly 
 or severally have violated any of the provisions of this act, notwith- 
 standing that the cause of action is separate and distinct as to each 
 and every one of such plaintiffs and defendants, and may recover 
 against any one or more of such person or persons. Laws 1896, chap. 
 376 (Domestic Commerce Law), § 29. 
 
 § 43. Application of this article to defendants jointly liable. 
 — The last section does not affect a defense or other objec- 
 tion of a defendant, growing out of the failure to join in 
 the action two or more persons jointly liable; and as re- 
 gards the other parties to the action, persons jointly liable
 
 154 Where Employee is Party. §44. 
 
 are regarded as one party, for every purpose contemplated 
 by that section. 
 
 Notes to section 43. 
 
 This section is taken from section 457 of the Code of Civil Procedure. 
 See notes to § 42. 
 
 There is no " article '* applicable to defendants jointly liable. This 
 section is included v. title II, "Actions; Summons, Parties," which 
 contains no article. 
 
 Action against joint debtors not served. — See § 268. 
 
 § 44. Where employee is party. — When an action is 
 brought by an employee against an employer for services 
 performed by such employee, male or female, the clerk of 
 the said municipal court in the district in which the action 
 is brought, shall issue, a free summons when the plaintiff's 
 demand is less than fifty dollars and the plaintiff is a resi- 
 dent of the city of New York, and proof by the plaintiff's 
 own affidavit that he has a good and meritorious cause of 
 action and of the nature of such action and of said plain- 
 tiff's residence, and whether previous application therefor 
 has been made, shall be duly presented to and filed with 
 the clerk of the municipal court where such action shall be 
 brought and he shall not demand or receive any fee what- 
 soever from the plaintiff or his agents or attorneys in such 
 action, unless the plaintiff shall demand a trial jury, in 
 which case the plaintiff must pay to the clerk of the munic- 
 ipal court where such action shall be pending the sum of 
 four dollars and fifty cents. 
 
 Notes to section 44. 
 
 This section was formerly the larger part of section 1416. subdivision 
 9 of the Consolidation Act (Laws 1882, chap. 410), as amended by 
 Laws 1887, chapter 307, page 380, and contained in the Charter of 
 1897, as amended in 1901, and is substantially the same. See also 
 §§ 45 to 53 of this act, as to prosecution and defense by a poor person. 
 
 Costs in action by working-woman. — See § 340. 
 
 Execution. — As to execution in favor of " employee," or " wage- 
 earner," see § 274. 
 
 Judgment in favor of wage-earners. — See § 274. and notes. 
 
 Jury trial. — As to trial by jury, drawing the jury, etc., see § 231.
 
 § 45. Prosecution as Poor Person. 155 
 
 § 45. Who may petition for leave to prosecute as a poor per- 
 son. — A person whether an adult or infant, who alleges that 
 he has a cause of action against another person, may apply 
 by petition to the court for leave to prosecute as a poor 
 person, and to have an attorney and counsellor assigned to 
 conduct his action. 
 
 Notes to section 45. 
 
 This section is taken from section 458 of the Code of Civil Procedure, 
 which was made applicable to this court by section 3347, subdivision 
 3 of said Code. 
 
 Poor person defined. — Isnard v. Cazeaux, 1 Paige, 39. 
 
 Application, when can be made. — A motion to sue as a poor person 
 may be made after action brought and any time during its pendency, 
 and is not barred by an order to file security for costs. Shapiro v. 
 Burns, 7 Misc. Rep. 418; s. c, 31 Abb. N. C. 144. 
 
 Guardian. — A guardian cannot sue in forma pauperis. The reasons 
 stated. In re Daly, McAdam, J., 1 City Ct. Rep. 437. To the con- 
 trary. Irving v. Garritty, 13 Abb. N. C. 182. 
 
 Infant can sue as a poor person. Erickson v. Poey, 5 Civ. Proc. 
 Rep. 379, 387; affd., s. c, 90 N. Y. 669; Hickman v. Mackey, 19 Abb. 
 N. C. 394. 
 
 Wealth of guardian ad litem. — The wealth or poverty of the guardian 
 ad litem, though father of tne plaintiff, is no answer to the motion for 
 leave to sue as a poor person. Shapiro v. Burns, 7 Misc. Rep. 418 ; 
 s. c, 31 Abb. N. C. 144; Ryan, A.dmr. v. Potter, 4 Civ. Proc. Rep. 80. 
 
 Nonresident cannot sue as poor person, at least doubted. Thomas 
 v. ^Yilson, 6 Hill, 257; Alexander v. Myers, 8 Daly, 112. 
 
 Cannot be done. Anonymous, TO Abb. N. C. 80; Christian v. Gonge, 
 10 Abb. N. C. 82. 
 
 Fees. — Poor person may prosecute without paying any fees to any 
 officer. Code Civ. Proc, § 461, made applicable by section 3347 of sub- 
 division 3 of said Code. 
 
 Jury fees. — If a jury trial is demanded by a person suing in forma 
 pauperis, it seems that a strict adherence to the statute does not en- 
 title him to exemption from payment of jury fees on demanding a 
 jury. Section 231 provides for the payment of the jurors' fees for 
 summoning the jury. Section 461 of the Code of Civil Procedure made 
 applicable to this court by section 3347, subdivision 3 of said Code, 
 specifies " without paying fees to any officer," and jurors are not 
 " officers." 
 
 Practice on removal of action of poor person. — See notes to § 3 of 
 this act, " Proceedings after removal in Citv Court."
 
 156 Puosecutioh AS Pook PlilirSOX. § 46. 
 
 Statute to be strictly construed. — The statute in reference to per- 
 mitting persons to sue in forma pauperis, should be strictly construed. 
 The reasons stated. Zemier v. Schmaltz, 1 City Ct. Rep. 435. 
 
 Security for costs. — Plaintiff cannot be required to hie security for 
 costs, if permitted to sue in forma pauperis, nor permitted so to 
 prosecute if required to file such security. Florence v. Bulkley, 12 
 X. Y. Leg. Obs. 28. 
 
 § 46. Contents of petition. — The petition must state : 
 
 1. The nature of the action brought or intended to be 
 brought. 
 
 2. That the applicant is not worth one hundred dollars, 
 besides the wearing apparel and furniture necessary for 
 himself and his family, and the subject matter of the action 
 and whether he has made any previous application for leave 
 to sue as a poor person. It must be verified by the appli- 
 cant's affidavit, unless the applicant is an infant under the 
 age of fourteen years, and in that case by the affidavit of 
 his guardian appointed in said action, and supported by a 
 certificate of a counsellor at law to the effect that he has 
 examined the case and is of the opinion that the applicant 
 has a good cause of action. The petition may, however, 
 be verified before the clerk or assistant clerk of said munic- 
 ipal court in the district in which the action is brought, 
 and the certificate of said clerk or assistant clerk, that he 
 has inquired into the facts of the case and that in his opin- 
 ion the plaintiff has a prima facie cause of action, shall have 
 the same force and effect as the certificate of an attorney. 
 
 Notes to section 46. 
 
 This section is taken from section 459 of the Code of Civil Pro- 
 cedure. 
 
 When not sufficient. — A petition by an infant for leave to prosecute 
 an action as a poor person, which merely states that the petitioner 
 has not now the means to prosecute the action, but does not state 
 that she cannot procure such means, or that she will be unable to 
 present her cause unless the order is granted, and which further states 
 that the petitioner receives wapes, but does not show the amount or 
 disposition thereof, or that her parents are unable to support her, is 
 insufficient to justify the granting of the order. Kaufmann v. Man- 
 hattan R. R. Co., 68 App. Div. 94.
 
 §§ 47, 48, 49. Prosecution as Poor Persox. 157 
 
 § 47. Order and petition to be filed ; when counsel assigned. — 
 The court to which the petition is presented, if satisfied of 
 the truth of the facts alleged, and that the applicant has a 
 good cause of action, may, by order, which may be endorsed 
 on petition, admit him to prosecute as a poor person, and 
 where there is a certificate of a counsellor at law, as pre- 
 scribed in the last section, may assign to him an attorney 
 and counsel to prosecute his action, who must act therein 
 without compensation. Such petition and order must be 
 filed with the clerk of the court in the district in which the 
 action is brought. 
 
 Note to section 47. 
 
 This section is taken from section 460 of the Code of Civil Pro- 
 cedure. 
 
 § 48. When leave may be annulled. — If the person so ad- 
 mitted is guilty of deception in the petition or of improper 
 conduct in the prosecution of the action, or of wilful or 
 unnecessary delay, the court may, in its discretion, annul 
 the order, admitting him to prosecute as a poor person; and 
 he shall thereafter be deprived of all the privileges con- 
 ferred thereby. 
 
 Notes to section 48. 
 
 This section is substantially the same as section 462 of the Code of 
 Civil Procedure. 
 
 Agreement with the attorney, whereby he has an interest in any 
 recovery, as compensation for his services, is fatal to plaintiff's right 
 to continue the action as a poor person, and in such case an order 
 permitting the prosecution will be reversed. Cahill v. Manhattan tty. 
 Co., 38 App. Div. 314. 57 N. Y. Supp. 10. 
 
 Notice. — A party to whom leave has been granted to sue as a poor 
 person who neglects to call the attention of his opponent or the court 
 to the order until after the entry of judgment and taxation of costs 
 loses all rights under the order. Oakes v. High et al., 11 Misc. Rep. 
 313. 
 
 § 49. When defendant may defend as a poor person, et cetera. 
 — A defendant in an action in said court may petition the 
 court in which the action is pending for leave to defend the 
 action as a poor person, and to have an attorney and coun- 
 sellor assigned to conduct his defense; as follows:
 
 158 Pkosecutio:n t as Pook Peeson. §§ 50, 51. 
 
 1. By an oral application made in open court, by defend- 
 ant, on the return day, and a statement under oath, of the 
 same matters, respecting his ability as are required to be 
 contained in a petition for leave to prosecute as a poor per- 
 son; or 
 
 2. By a petition verified before the clerk or assistant 
 clerk, accompanied by his certificate relating to the defense 
 in the same manner as prescribed in section forty-two of 
 this act; or 
 
 3. By a verified petition supported by a certificate of a 
 counsellor at law relating to the defense, in the same man- 
 ner as prescribed in section forty-two of this act. 
 
 Note to section 49. 
 
 This section is constructed from sections 463 and 464 of the Code 
 of Civil Procedure. 
 
 § 50. Defendant's order. — The court to which the applica- 
 tion is made or petition is presented as prescribed in the 
 last section, if satisfied of the truth of the facts stated as to 
 defendant's ability, and that the applicant has a good de- 
 fense if proved on the trial, may, by order, admit him to 
 defend as a poor person and may assign counsel to conduct 
 his defense, or may, in case of verified pleadings, direct the 
 clerk or assistant clerk of said court, to prepare and file an 
 answer, verified before him by defendant, or may assign 
 a counsellor at law present in court to prepare and file an 
 answer which may be verified before the clerk or assistant 
 clerk of said court. 
 
 Note to section 50. 
 
 This section is new, and necessarily follows the granting of the 
 application mentioned in section 49. 
 
 § 51. Leave may be annulled as in case of plaintiff. — The 
 
 provisions relating to an order to be made upon an applica- 
 tion for leave to prosecute as a poor person and the pro- 
 ceedings subsequent thereto apply to an order and subse- 
 quent proceedings upon an application for leave to defend 
 as a poor person.
 
 §§ 52, 53. Appeal by Poor Person, Etc. 159 
 
 Note to section 51. 
 
 This section is the same as section 405 of the Code of Civil Pro- 
 cedure. 
 
 § 52. Appeal where plaintiff or defendant poor person. — An 
 order made as prescribed in this article, does not authorize 
 the petitioner to take or maintain an appeal as a poor per- 
 son; but where an appeal is taken by the adverse party the 
 order is applicable in favor of the petitioner as respondent 
 in the appeal. 
 
 Note to section 52. 
 
 This section is the same as section 466 of the Code of Civil Pro- 
 cedure. 
 
 § 53. Costs in favor of petitioner. — Where costs are 
 awarded in favor of a person who had been admitted to 
 prosecute or defend as a poor person as prescribed in this 
 article, they must be paid over to his attorney, when col- 
 lected from the adverse party and distributed among the 
 attorneys and counsel assigned to the poor person, as the 
 court directs. 
 
 Notes to section 53. 
 
 This section is the same as section 467 of the Code of Civil Pro- 
 cedure, so much so that the words " as prescribed in this article " have 
 been retained, whereas there is no " article " of title II, entitled "' Ac- 
 tions; Summons; Parties/' commencing with section 25 and ending 
 with this section. 
 
 Costs. — The court will not exempt the applicant from liability for 
 costs accrued before the application. Lyons v. Murat, 4 Abb. N. C. 13. 
 
 Stay. — Where the action is in forma pauperis it cannot be stayed on 
 account of the nonpayment of costs awarded against the plaintiff 
 in a previous action. Herbert v. Drake, 2 City Ct. Rep. 175. 
 
 Note. — There is no section 54.
 
 160 Provisional Remedies, Etc. § 55. 
 
 TITLE III. 
 
 Provisional Remedies; and Actions to Foreclose a Lien on a 
 
 Chattel. 
 Article I. Order of arrest. 
 II. Attachment. 
 III. Replevin. 
 IV. Action to foreclose a lien on a chattel. 
 
 ARTICLE I. 
 Order of Arrest. 
 
 Section 55. Process to be served by marshal. 
 
 56. In what cases order of arrest to be granted. 
 
 57. Affidavit and undertaking upon granting 
 
 58. What to direct. 
 
 59. Papers to be delivered to arrested person; proceedings 
 
 thereupon. 
 
 60. Proceedings in case justice is a witness. 
 
 61. Plaintiff to be notified of arrest. 
 
 62. Bail or deposit before return. 
 
 63. Bail may be examined. 
 
 64. Bail or deposit after return. 
 
 65. When and how defendant to remain in custody. 
 
 66. Duty of marshal. 
 
 67. Undertaking by arrested defendant on applying for ad- 
 
 journment. 
 
 68. Motion to discharge from arrest. 
 
 69. Privilege from arrest. 
 
 70. Sections applicable as to undertakings, et cetera. 
 
 §55. Process to be served by marshal. — An order of 
 arrest, warrant of attachment or requisition to replevy, 
 issued by or out of the municipal court of the city of New 
 York, shall be served and executed by a marshal of the 
 city of New York. 
 
 Note to section 55. 
 
 This section is taken from section 1302 of the Consolidation Act 
 (Laws 1882, chap. 410), leaving out the words "other process, issued 
 by or out of this court," so that it is no longer required that the mar- 
 shal shall serve the summons, leaving this section consistent with sec- 
 tion 36, by which any person not a party to the action who is over 
 eighteen years of age, may serve the summons.
 
 § 56 AND SlTBD. 1. OfiDEE OF ArREST. 161 
 
 § 56. In what cases order of arrest to be granted An order 
 
 to arrest the defendant must or may be granted, directed 
 to any marshal of said city, in the following cases, but no 
 female can be arrested except for a wilful injury to person 
 or property : 
 
 1. In an action for the recovery of damages, in a cause 
 of action not arising on contract, when the defendant is not 
 a resident of the city of New York, or is about to remove 
 therefrom, or when the action is for a wilful injury to per- 
 son or property. 
 
 Notes to section 56. 
 
 This section is substantially the same as section 1304 of the Con- 
 solidation Act (Laws 1882, chap. 410), which section was taken from 
 the old District Court Act (Laws 1857, chap. 344, § 16), with the pro- 
 vision as to the arrest of a female, which was formerly contained in 
 the last subdivision of section 1304 of the Consolidation Act, it has 
 now been placed in the preamble of this section. 
 
 In Rosenthal v. Grouse, 12 Daly, 529; s. c, 7 Civ. Code Rep. 135, and 
 1 How. (N. S.) 44, the court severely but justly criticised the Legisla- 
 ture for enacting conflicting provisions relating to orders of arrest and 
 warrants of attachment in this court causing a justice thereof to err in 
 upholding a provisional remedy, as there was a casus omissus in the 
 law. This case is well worth the attention of the student and of the 
 practitioner to show how " fearfully and wonderfully " laws are some- 
 times enacted. See also notes to § 75. 
 
 Notes to section 56, subdivision 1. 
 
 Arrest is to punish for the tort. — Arrest is allowed, not as a security 
 for the debt, but as punishment for tort. Nat. Bank of Commonwealth 
 v. Temple, 39 How. Pr. 432. 
 
 Id.; is a provisional remedy and does not affect cause of action. — 
 The order of arrest is a provisional remedy, and its granting or vacat- 
 ing does not affect the plaintiff's cause of action and right to judgment 
 thereon. In re Zeitz, 12 Civ. Proc. Rep. 423. 
 
 Id.; of female. — A willful injury for which a female may be arrested 
 is defined in Duncan v. Shaio, 6 Hun, 1, as "Any disturbance 
 of the right of the owner to an article, to have, use, and enjoy it, 
 securely and without molestation, is an injury for which the law gives 
 an action, irrespective of any damage to the thing itself, in which the 
 right of property exists. Persuading and inducing a clerk of plaintiff 
 to take from them and to give defendant, a female, gold certificates, 
 which she willfully converted, is such willful injury, and she is liable 
 
 11
 
 162 Order of Arrest. § 56. 
 
 to arrest." See also Northern B. R. Co. v. Carpenter, 3 Abb. Pr. 259; 
 s. c, 3 How. 222, 1 Hilt. 179. 
 
 Borrowed money by falsely representing that worthless bonds deliv- 
 ered as security are good, subjects a female to arrest. Eypart v. Bo- 
 lenius, -1 Abb. N. C. 193. 
 
 Arrest, order of; where may be served. — Section 9 of this act au- 
 thorizes the process of this court and other mandates to be sent to 
 and executed in any part of the city of New York, and the court has 
 power to enforce obedience thereto. 
 
 Cause of arrest must be applicable to all the claims in the complaint. 
 Basset t v. Pitts, 15 Hun, 464; Madge v. Ping, 71 N. Y. 608, revg. s. c, 
 12 Hun, 15; Ely v. Steiger, 9 Abb. Pr. N. S. 35; Toffey v. Williams, 
 5 Sup. Ct. (T. & C.) 294. 
 
 Conditional sale agreement. — No order of arrest shall issue in an 
 action on such agreement. See § 139_ of this act. But if the property 
 is willfully or maliciously disposed of or concealed, an order of arrest 
 may be granted. See § 140 of this act. 
 
 Judgment. — An order of arrest may be granted in an action on a 
 judgment for a debt fraudulently contracted. The fraud is not merged 
 in the judgment. Greenbaum v. Stein, 2 Daly, 223. 
 
 Mechanic's lien. — An order of arrest for fraudulently contracting the 
 debt may be granted in an action to enforce a mechanic's lien. Bur- 
 bridge v. Hart, 54 How. 455. 
 
 New contract; effect of. — Acceptance by the creditors of bonds, merely 
 as security for the demand, and which are inadequate security, does 
 not preclude arrest. Dubois v. Thompson, 1 Daly, 309; s. c, 28 How- 
 Pr. 418. See also Murphy v. Hernandez, 10 Bosw. 665; Nelson v. 
 Blanchard, 54 Barb. 630. 
 
 The fact that a creditor has accepted the promissory note of his 
 debtor for money due him, received in a fiduciary capacity, is no bar, 
 after the dishonor of the note, to an arrest in an action on the original 
 indebtedness. But the plaintiff must be ready to return the note, 
 Shipman v. Shafer, 14 Abb. Pr. 449. But see also to the contrary, 
 Nelson v. Blanchfield, 54 Barb. 630, and Trunninger v. Busch, 7 Daly, 
 124. 
 
 Partners cannot arrest each other. Cory v. Williams, 1 Duer, 667; 
 Smith v. Small, 54 Barb. 223. 
 
 Place. — Arrest may be ordered of a defendant within the jurisdiction 
 without reference to where the fraud was committed, or whether the 
 property was ever brought here. Broicn v. Ashbough, 40 How. Pr. 226. 
 
 A defendant may be arrested, in a civil action, for fraudulently pro- 
 curing possession of property in a foreign country, if he brings the 
 proceeds of his fraud into this State; and this, whether he could have 
 been arrested there for fraud or not. The remedy is governed by the 
 lex fori. 2 Johns. 148, 11 Johns. 194, 14 Johns. 364; City Bank v. 
 Lumley, 28 How. Pr. 397.
 
 § 56, Stjbd. 2. Order of Arrest. 163 
 
 2. In an action for a fine or penalty, or for money or 
 property embezzled or wrongfully misapplied or converted 
 to his own use by a public officer, or an officer of a corpora- 
 tion, or an attorney, factor, broker, agent or clerk, in the 
 course of his employment as such, or by any other person 
 acting in a fiduciary capacity. 
 
 Notes to section 56, subdivision 2. 
 
 Auctioneer receiving goods for sale, and to retain all over a certain 
 amount, failing to pay that amount, is liable to arrest. Holbroolc v. 
 Homner, 1 Code Rep. N. S. 406; s. c, 6 How. Pr. 86; Barrett v. Grade, 
 31 Barb. 20. 
 
 Broker for the purchase of coin and stock, receiving a deposit of 
 money as security against loss in such transaction, is liable to an arrest 
 in an action for the balance of account, as for money received in a 
 fiduciary capacity. Clark v. Pinkney, 50 Barb. 226. 
 
 A stock broker, who, having received money to make a special pur- 
 chase, and used it for some other purpose, was arrested and held. 
 Dubois v. Thompson, 1 Daly, 309; s. c, 25 How. Pr. 417. 
 
 Claim by third person, interposed to moneys which the defendant had 
 received in a fiduciary capacity for the plaintiff, wherefore he refused 
 to pay it over, lest he should be liable, does not affect the plaintiff's 
 right to have defendant arrested in an action to recover such money. 
 Gross v. Graves, 19 Abb. Pr. 95. 
 
 Factors and commission merchants. — A commission merchant who 
 receives butter to sell on commission acts in a fiduciary capacity and 
 is liable to arrest for failure to pay over the net proceeds after said 
 sale. Schudder v. Shiells, 17 How. 420; Ostell v. Brough, 24 How. 274. 
 
 An agreement, by the terms of which a person receives from time 
 to time the goods of merchants which he is authorized to sell for their 
 account to customers of his own finding, upon a compensation to him 
 of a percentage of the profits upon his sales, with authority to him to 
 collect and with a subsequent accountability for the proceeds collected, 
 creates a fiduciary relation. The failure of the agent to account for 
 the proceeds of his sales makes him liable to his principals, in an 
 action upon contract, but does not render him guilty of a conversion. 
 Wright v. Duflie, 23 Misc. Rep. 339. See also Standard S. P. v. Dayton, 
 70 N. Y. 486. Examine however Duguid v. Edwards, 23 How. Pr 254; 
 s. c, 50 Barb. 288, and Fuentes v. Muyorga, 7 Daly, 103. 
 
 The relation of the parties in this respect is not substantially altered 
 by the fact that he has also guaranteed the Lales made by him, receiving 
 an additional compensation therefor. Ostell v. Brough, 24 How. Pr. 
 274; Angus v. Dunscomb, 8 How. Pr. 14; Sutton v. De Camp, 4 Abb. 
 Pr. N. S. 483.
 
 164: Oedek of Arrest. § 56, Subd. 3. 
 
 Agreement by which a factor engaged to transfer notes and bills 
 taken by him on the sale of goods, to the defendants, in consideration 
 of their guaranteeing payment to the principal. Held, that such notes, 
 and their proceeds in the hands of the defendants, were received in 
 the fiduciary capacity for account of the principal, and might be fol- 
 lowed in the hands of any person not a purchaser for value. Chaine 
 v. Coffin, 17 Abb. Pr 441. 
 
 If a factor mingles the proceeds of the sale of his consignor's prop- 
 erty with his own funds, by depositing them in the bank to his credit 
 in general account and uses the money in his business generally, he is 
 liable to arrest on failure to pay the same on demand. Duyuid v. 
 Edwards, 50 Barb. 288. And see Farmers, etc., Bank of Buffalo v. 
 Sprague, 52 N. Y. 605. 
 
 It must appear that the identical money received must be the prop- 
 erty of the creditor, which it is the duty of the debtor to pay over, not 
 that he could pay with any funds of his own. State v. King, 8 How. 
 Pr. 298 ; Republic of Mexico v. Arangoiz, 5 Duer, 634 ; Duguid v. Ed- 
 wards, 50 Barb. 288; Wood v. Henry, 40 N. Y. 124; Lewis v. Prosser, 
 53 N. Y. 260. And see 1 Wait's Pr. 612, 622; M orange v. Waldron, 6 
 Hun, 529. 
 
 3. Where the defendant has been guilty of a fraud in 
 contracting the debt, or incurring the obligation for which 
 the action is brought, or in concealing or disposing of the 
 property, for the taking, detention, or conversion of which 
 the action is brought. 
 
 Notes to section 56, subdivision 3. 
 
 Action before time of credit expires. — If a sale of goods on credit be 
 induced by fraudulent representations, suit for the A'alue may be com- 
 menced before the termination of the credit. Reid v. Martin, 4 Hun, 
 590. 
 
 Assignment of claim. — The defendant having fraudulently obtained 
 money and other personal property from the mother of plaintiff, who 
 afterward died intestate, and the administrator having assigned the 
 intestate's claim to plaintiff, — Held, that an order of arrest was prop- 
 erly granted. Valentine v. Richardt, 17 Civ. Proc. Rep. 289, 24 N. Y. 
 St. Rep.. 697. 
 
 Plaintiff's ownership of a note assigned to him by the payee is suffi- 
 cient to sustain an action for fraud in incurring the debt, without 
 showing any assignment of the claim for damages to him. Ryle v. 
 Brown, 50 N. Y. Super. 174. 
 
 Availing of false credit. — If a deposit in bank by one person, which 
 by mistake of the bookkeeper is credited to another, is drawn out and
 
 § 56, Subd. 3. Order of Arrest. 165 
 
 appropriated by the latter with knowledge of the mistake, it is fraud 
 for which he may be arrested. Nat. Broadway Bank v. Miller, 11 N. Y. 
 Daily Reg. No. 119, affg. 4 Week. Dig. 31. 
 
 Bailment and conversion. — Goods delivered upon an agreement to 
 return them or pay for them may be regarded as a bailment, and not 
 a sale, and the bailee is liable to arrest for a conversion. Person v. 
 Oliver, 29 How. Pr. 432, revg. s. c, 28 How Pr. 139. See also Barnett 
 v. Selling, 9 Hun, 236. 
 
 Arrest; boarding-house-keeper's lien. — An action claiming a lien on 
 defendant's baggage and wardrobe for board, which property had been 
 clandestinely removed, is an action for the " wrongful conversion of 
 personal property," for which a justice is allowed to issue an order 
 for the arrest of defendant, and the justice erred in refusing to insert 
 in a judgment for plaintiff the liability of defendant to arrest on exe- 
 cution. Babcock v. Smith, 19 N. Y. Supp. 817. See also Scaring v. 
 Goldstein, 11 Daly, 236. 
 
 Chattels. — In an action for the recovery of, wrongfully detained, an 
 order of arrest may issue and require the holding of the defendant to 
 bail. Tracy v. Griffin, 50 Barb. 70. 
 
 In order to sustain an arrest of defendant in replevin, the complaint 
 must allege that the chattel or a part thereof has been concealed, re- 
 moved, or disposed of, so that it cannot be found or taken by the sheriff 
 with intent, etc., as provided in Code Civ. Proc, § 549, which require- 
 ment is jurisdictional, and it is not enough that if the action had been 
 conversion the order of arrest would be justified. Michaelis v. Towne, 
 59 N. Y. Supp. 721. 
 
 Check sent by mistake. — In an action for injury to and for the de- 
 tention and conversion of personal property, the plaintiff sent the de- 
 fendant a check for goods for which he had already paid, and the 
 defendant, knowing the mistake, retained and converted it. Held, order 
 of arrest properly granted. Agar v. Haines, 15 N. Y. St. Rep. 361. 
 
 Conversion of check. — Where plaintiff deposited a check of a third 
 party with defendant, for collection only, and the proceeds were to be 
 applied to a special purpose, instead of appropriating it to the use for 
 which it was deposited, he gave him credit for the amount with interest. 
 An order of arrest for the conversion of the proceeds of the check was 
 proper. Eckert v. Belden, 1 Law Bull. 61. 
 
 Conversion of money to pay note.— A check was given to pay a note, 
 the check was paid, but the note not taken up by defendant, for which 
 he was held liable for a fraudulent conversion of money received in a 
 fiduciary capacity. Wandell v. Burnett, 22 Misc. Rep. 315, 49 N. Y. 
 Supp. 109. See also Loicell v. Martin, 11 Abb. 126. 
 
 Conversion of promissory note. — An order of arrest may be granted 
 against one who has used a promissory note of the plaintiff given for a 
 specific purpose contrary to the agreement, and does not deliver it up
 
 166 Obdeb of Aeeest. § 56, Sued. 3. 
 
 when the agreement has been complied with. Ertell v. De Peimevet, 14 
 Civ. Proc. Rep. 300. And see Eastern v. Cardwell, 11 Civ. Proc. Rep. 301. 
 
 Fraud committed in contracting a debt for the sale of goods subjects 
 the offender to an arrest for the amount of the debt, whether such 
 fraud would avoid the sale or not. Wallace v. Murphy, 22 How. Pr. 414. 
 
 So where a vendee purchases property on credit, knowing that he is 
 insolvent, without disclosing the fact. II right v. Brown, 07 X. Y. 1. 
 
 Defendant borrowed money on a promise to apply it to a specific 
 purpose, and converted it to another. Held, that he was liable to arrest 
 for a fraud in contracting the debt. Lovell v. Martin, 11 Abb. Pr. 120. 
 
 Applies only to actions brought to enforce a contract liability, and 
 not to those where fraud or deceit is the gist of the action. McGovern 
 v. Payne, 32 Barb. 83; Smith v. Cobriere, 3 Bosw. 034. 
 
 What is necessary to constitute a fraudulent sale. See Hoyt v. 
 Godfrey, 88 X. Y. 609. 
 
 Contemporaneous. — A direct misrepresentation to plaintiff having 
 been proved, it is competent to prove similar fraudulent misrepresenta- 
 tion to others as bearing upon the question of intent, but the latter 
 was not alone sufficient, though communicated to plaintiff, unless it is 
 shown they were intended to be so communicated. Van Kleek v. Leroy, 
 4 Abb. X. S. 431, 4 Abb. Ct. App. Dec. 479, affg. 37 Barb. 544. 
 
 Where the question is whether the vendee procured the sale of the 
 goods through fraud, evidence, is admissible of purchases made by him 
 at or about the same time, involving similar frauds. Hall v. Xaylor, 
 18 X. Y. 588, revg. Duer, 71; Van Kleek v. Leroy, 4 Abb. X. S. 431. 
 
 Partner, fraud by. — In the absence of proof that the other partners 
 knew of the fraud, only the one who w r as actually guilty of it can be 
 arrested. Hanover Co. v. Sheldon, 9 Abb. 240; Hitchcock v. Peterson, 
 14 Hun, 389; Wetmore v. Earle, 9 Abb. 58, n. ; National Bank of C. v. 
 Temple, 39 How. Pr. 432. 
 
 False representations as to the responsibility of a firm, made with 
 intent to defraud, are good grounds for the arrest of the partner mak- 
 ing them. Whit mark v. Herman, 44 X. Y. Super. 144. 
 
 Where a partner, on being notified of a fraud committed by his co- 
 partner, omits to repudiate the act, he will be held to have adopted 
 the fraudulent act, and will be deemed a joint wrongdoer. Haiokins v. 
 Appleby, 2 Sandf. 241. And see Anonymous, 6 Abb. 319, n. 
 
 See, however, the cases holding: In an action to recover a copartner- 
 ship debt, in the contracting of which some of the partners w T ere guilty 
 of a fraud, all the parties are liable to an arrest. Toumsend v. Bogart, 
 11 Abb. Pr. 355, 1 Hill, 311, 2 Sandf. 421; Coman v. Reese, 21 How. 
 Pr. 114; Bull v. Meliss, 9 Abb. Pr. 58; Anonymous, 6 Abb. Pr. 319; 
 Sherman v. Smith, 42 How. Pr. 198; Hitchcock v. Peterson, 14 Hun, 389. 
 
 Each partner is liable to arrest for the frauds committed by the 
 other members of the firm, although he may have been entirely igno- 
 rant of such frauds. Matter of Benson, 11 Week. Dig. 394.
 
 § 56, Subd. 3. Order of Arrest. 167 
 
 Purchases on the eve of bankruptcy. — A defendant purchased goods 
 on a credit of thirty days, and within that time became insolvent, 
 giving no explanation. Held liable to arrest. Dale v. Jacobs, 10 Abb. 
 N. S. 382; Reid v. Martin, 4 Hun, 590. 
 
 An attempt to postpone payment for a week, and failing within two 
 days thereafter, — Held to be conclusive evidence of intent to defraud. 
 Smith v. Frank, 2 Robt. 626. 
 
 Liable where debt incurred; and credit obtained on a false allegation 
 cf solvency. Freeman v. Leland, 2 Abb. Pr. 479; Mitchell v. Warden, 
 20 Barb. 253. 
 
 Infant. — An infant who makes false statements as to his property 
 when buying goods other than necessaries cannot be made liable to 
 arrest by bringing the action in fraud. Taylor v. Van Keuren, 54 
 How. 25. And see Stem v. Meikleham, 31 N. Y. St. Rep. 608. 
 
 Joint debtors. — A deceit practiced by one of two joint debtors in in- 
 ducing the creditor to accept his check, postdated and indorsed by the 
 other, is not ground for authorizing his arrest in an action on the 
 check against both. Woodruff v. Valentine, 19 Abb. 93. 
 
 Misrepresentations. — Where a person, to induce another to contract 
 with him, makes statements which he knows to be false, or if he intends 
 to convey the impression that he has actual knowledge of their truth, 
 when he has not such knowledge, and they are in fact false, he commits 
 a fraud. Bishop v. Davis, 9 Hun, 342. And see Scudder v. Barnes, 16 
 How. 534; Hubbard v. Richardson, 31 App. Div. 520, 52 N. Y. Supp. 
 35. 
 
 " Obligation," used in this section, is not used in its strict sense of a 
 special contract. It is equivalent to the words " legal liability " or 
 " legal duty." Crandall v. Bryan, 5 Abb. Pr. 162. 
 
 Principal and agent. — The principal cannot be arrested for the fraud 
 of the agent, without personal knowledge on his part in respect thereto, 
 or ratification thereof. Clafiin v. Frank, 8 Abb. Pr. 412; Hathaway v. 
 Johnson, 55 N. Y. 93 ; Stewart v. Stoisburger, 7 Hun, 337. 
 
 Scienter. — It must be shown that the defendant knew, at the time 
 of making them, that the allegations were false; otherwise he is not 
 liable to arrest. Gafney v. Burton, 12 How. Pr. 516, 18 N. Y. 299, 40 
 N. Y. 562. 
 
 Where a person, to induce another to contract with him, makes 
 statements known by the former to be false, or where he intends to 
 «onvey , the impression that he has actual knowledge of their truth, 
 when conscious that he has not such knowledge, and they are in fact 
 false, he thereby commits a fraud upon the other party. 
 
 When such representations are affirmative in character, positive and 
 unequivocal, without condition or qualification, and are not made upon 
 information or belief, or as matter of opinion, they must be regarded 
 as designed to convey the impression that he had actual knowledge of 
 their truth. Bishop v. Davis, 9 Hun, 342.
 
 168 Order of Arrest. § 56, Subd. 4. 
 
 Suspicious circumstances of fraud, unexplained, held sufficient to sus- 
 tain an order of arrest. Wilmerding v. Cohen, 8 Abb. Pr. N. S. 141. 
 
 Waiver of the fraud. — Although a debt was fraudulently contracted, 
 yet if, subsequently thereto, plaintiff, with full knowledge of the fraud, 
 settles the original debt and enters into a new contract upon addi- 
 tional consideration, defendant cannot be held to bail msrely because 
 the original debt was fraudulently contracted. Merchants' Bank of 
 Neio Haven v. Dwight, 13 How. 366, 6 Duer, 659; Nelson v. Blanch- 
 field, 54 Barb. 630. 
 
 In an action on a promissory note which became payable more than 
 six years before the commencement of the action, but had been taken 
 out of the statute of limitations by payments, — Held, that the plaintiff 
 could not have an order of arrest for fraud in contracting the debt, as 
 the payments kept alive the note only, not the fraud. Fritts v. Slade, 
 9 Hun, 145. 
 
 When an agent is liable to his principal in a fiduciary capacity, 
 settles with him and gives his check and acceptance payable in the 
 future, the character of his liability is changed from a wrong into a 
 debt. Alliance Ins. Co. v. Cleveland, 14 Haw. 408. 
 
 But the fact that the creditor has accepted the note of his debtor for 
 money received in a fiduciary capacity is no bar to an action on the 
 original indebtedness upon the notes being returned, Shipman v. 
 Shafer, 14 Abb. 449. 
 
 4. When the defendant has removed, concealed, or dis- 
 posed of his property, or is about to do so, with the intent 
 to defraud his creditors. 
 
 Notes to section 56, subdivision 4. 
 
 Concealing or removing property. — It must be shown that the re- 
 moval or concealment was with intent that it should not be found or 
 taken by the sheriff, or with the intent to deprive the plaintiff of it. 
 Watson v. McGuire, 33 How. Pr. 87; Gananique v. Du Luc, 1 Abb. Pr. 
 N. S. 419; Muller v. Perrin, 14 Abb. Pr. N. S. 95; Bamett v. Selling, 
 70 N. Y. 492, modifying 7 Hun, 236, 3 Abb. N. C. 83; Nicholas v. 
 Michael, 23 N. Y. 264. 
 
 What is evidence of fraudulent disposal of property. See Phillips 
 v. Benedict, 33 Barb. 655, 12 Abb. 355, affg. 20 How. 265. 
 
 An attempt to put the property beyond the reach of its owner will 
 authorize the order of arrest. Lippman v. Shapiro, 19 Week. Dig. 504, 
 50 N. Y. Super. 370. 
 
 One codefendant admitted to the plaintiff that they had transferred 
 their goods to another firm to keep them out of the hands of creditors, 
 that it was the same as if they owned the goods ; these admissions were
 
 § 57. Order of Arrest. 169 
 
 corroborated by suspicious circumstances, such as want of evidence of 
 a good consideration for the transfer, the creation of a new firm to take 
 the goods, the absence of any transfer of the premises in which the 
 goods were situated, and the fact of their remaining on the same prem- 
 ises; an order of arrest on the ground of a fraudulent disposition of 
 property was sustained. Phillips v. Benedict, 33 Barb. 355, s. c, 12 
 Abb. Pr. 355, 20 How. Pr. 265. 
 
 5. When an arrest is authorized by special statute, in an 
 action for a fine or penalty, or for a wilful violation of duty. 
 
 6. When the action is for the recovery of a fine or pen- 
 alty under the ordinances or by-laws of the city of New 
 York. 
 
 § 57. Affidavit and undertaking upon granting. — Before an 
 order of arrest shall issue, the party applying must prove 
 to the satisfaction of the court, by the affidavit of himself 
 or some other person, the facts on which the application is 
 founded, and the amount of his debt or claim over all pay- 
 ments and set-offs. The plaintiff must also execute and 
 deliver to the clerk of the court, in the district in which 
 the action is brought, a written undertaking approved by 
 the court, with such approval endorsed thereon, with suffi- 
 cient surety or sureties, to the effect that if the defendant 
 recover judgment the plaintiff will pay to him all costs and 
 extra costs that may be awarded to the defendant, and all 
 damages which he may sustain by reason of the arrest not 
 exceeding the sum specified in the undertaking, which must 
 be double the amount claimed. But the proof and security 
 required by this section shall not be necessary where the 
 order of arrest is issued for the violation of a by-law or 
 ordinance of the city of New York, or for the recovery 
 of a penalty or a forfeiture under the statutes of this state, 
 where the city of New York or any department of the gov- 
 ernment of said city authorized by statute to maintain an 
 action, or of the people of the state of New York are 
 plaintiffs. 
 
 Notes to section 57. 
 This section is substantially the same as section 1305 of the Con- 
 solidation Act (Laws 1882, chap. 410), which was taken from Laws
 
 170 Okder of Arrest. § 57. 
 
 1857, chap. 344, § 21, leaving out the provision that an undertaking 
 could be given without sureties. The party applying must now in all 
 cases furnish a surety or sureties before an order of arrest is granted, 
 except in the action to recover a penalty or forfeiture as specified at 
 the close of this section. The form of the undertaking is different 
 from that prescribed by section 812 of the Code of Civil Procedure, 
 although that section applies to this court by section 3347, subdivision 
 6 of said Code. 
 
 Affidavit; what it must state. — The affidavit must be positive. Some 
 of the material statements in the affidavits may be upon information 
 and belief, but they must set forth the sources of the information and 
 the grounds of the belief, the residence of the informants and reasons 
 why their affidavits could not be obtained. Jordon v. Harrison, 13 
 Civ. Proc. Rep. 445. See also Whitbeck v. Roth, 5 How. Pr. 143; Blason 
 v. Bruno, 33 Barb. 520; De Weerth v. Feldner, 16 Abb. Pr. 295; 
 DeXierth v. Lidner, 25 How. Pr. 419; City Bank v. Lumley, 28 How. 
 Pr. 397; Potter v. Sullivan, 16 Abb. Pr. 298; Grimes v. Davison, 2 
 Abb. X. C. 457 ; Phelps v. Maxwell, 2 Abb. N. C. 459. 
 
 In an action of replevin the affidavit stated that the defendant had 
 concealed, removed, or disposed of the goods with intent to deprive 
 the plaintiff of the benefit thereof, but the affidavit did not state that 
 this had been done so the chattels " cannot be found or taken by the 
 sheriff, and with intent that, they should not be found or taken," etc. 
 Held, that the order of arrest was improper. Hough v. Folinsbee, 36 
 X. Y. St. Rep. 708, 59 Hun, 148, 20 Civ. Proc. Rep. Ill, 12 N. Y. Supp. 
 309. 13 N. Y. Supp. 221; Markey v. Diamond, 1 Misc. Rep. 97. 
 
 The intent must appear. Muller v. Perrin, 14 Abb. Pr. N. S. 95. 
 
 Amendment of undertaking. — See notes to § 3 ("Removal"). 
 
 Complaint, when verified, is available as an affidavit, with others to 
 sustain the order. Palmer v. Hussey, 59 N. Y. 647, affg. 65 Barb. 278. 
 . Conversion of property. — What evidence sufficient to establish. 
 Woodbridge v. Nelson, 13 Hun, 390. 
 
 Fraud. — Proof of an actual fraudulent intent is required. Pacific 
 Mutual Ins. Co. v. Machado, 16 Abb. Pr. 451. And when it appears, 
 a mere denial of any fraudulent intention will be disregarded. City 
 Bank v. Lumley. 28 How. Pr. 397. 
 
 Intent must be inferred from acts and declarations. 'Whitcomb v. 
 Salsman, 12 How. Pr. 533. 
 
 A purchaser who obtains credit by false representations must be held 
 to intend the legitimate consequences of his acts. Whitcomb v. Sals- 
 man, 16 How. Pr. 533 ; Smith v. Frank, 2 Robt. 626. 
 
 Concealment of banl rupt condition. Representation. Roebling v. 
 Duncan, 8 Hun, 502. The particular representations as to fraud, and 
 in what respect they were false, must be stated. Draper v. Beers, 17 
 Abb. Pr. 163; Thorpe v. Waddingham, 3 Daly, 275.
 
 §§ 58, 59. Order of Arrest. 171 
 
 Making a note; before maturity, a fire, obtaining the insurance, sud- 
 denly and secretly abandoning residence without notice, and removing 
 to another State, unexplained. M alien v. Aznar, 11 Abb. Pr. N. S. 223. 
 
 Exception to, and justification of, sureties. — By section 70 of this act 
 sections 100 to 110 and sections 127 and 128 are made applicable to 
 undertakings, sureties, and justification. 
 
 Goods on credit. — The facts to be disclosed, and an ample form to 
 obtain an order of arrest for obtaining goods upon credit by false 
 and fraudulent representation, can be found in Wilmerding v. Cohen, 
 8 Abb. Pr. N. S. 141. See also Reid v. Martin, 4 Hun, 590. 
 
 Mistakes, omissions, defects, and irregularities, and general rules re- 
 specting affidavits, bonds, and undertakings. — See notes to § 1, subd. 3. 
 
 Set-off. — An affidavit stating that plaintiff was entitled to recover of 
 defendant a certain sum " over and above all discounts and set-offs," 
 held sufficient. Lampkiri v. Douglas, 15 Week. Dig. 314. 
 
 § 58. What to direct. — An order of arrest, must direct 
 that the summons accompanying it be made returnable im- 
 mediately upon the arrest of the defendant, and it must 
 specify a sum in which the defendant may be let to bail. 
 
 Notes to section 58. 
 
 This section is the same as section 1307 of the Consolidation Act 
 (Laws 1882, chap. 410), which was taken from section 3218 of the 
 Code of Civil Procedure. 
 
 As to the return day of the summons in other cases, see § 37. 
 
 § 59. Papers to be delivered to arrested person; proceedings 
 thereupon. — The marshal, upon arresting- the defendant, by 
 virtue of such an order, must at the same time, serve upon 
 him the summons, and also a copy of the order of arrest, 
 and of the papers upon which it was granted. He must 
 forthwith bring the defendant before the court, in the dis- 
 trict in which the action is brought, if the court is then in 
 session; otherwise unless bail is given, as prescribed in sec- 
 tion sixty-two of this act, he must take the defendant to the 
 jail of the county in which the district where the action is 
 brought is situate, for the confinement of prisoners in civil 
 causes. The keeper thereof must confine the defendant 
 therein. On the next day thereafter when said court is 
 in session, the marshal must take the defendant from the 
 jail and bring him before the court.
 
 172 Okdeh of Arrest. §§ 60, 61, 62. 
 
 Note to section 59. 
 
 This section is substantially the same as section 1308 of the Con- 
 solidation Act (Laws 1882, chap. 410), with the exception of the ad- 
 dition of the words " of the county in which the district where the 
 action is brought is situated," so as to make it consistent with the 
 jurisdiction of the court in the four counties anu the five boroughs 
 of the city of New Yo k. 
 
 § 60. Proceedings in case justice is a witness. — If it be 
 made to appear by the affidavit of the defendant to the satis- 
 faction of the justice sitting in the district in which the 
 action is brought, that such justice is a material witness in 
 the action, the marshal must immediately take the defend- 
 ant before the court in an adjoining district named by said 
 justice, which must take cognizance of the action, and pro- 
 ceed therein the same as if the order of arrest had been 
 issued out of the court in the latter district. 
 
 Note to section 6o. 
 
 This section is substantially the same as section 1309 of the Con- 
 solidation Act (Laws 1882, chap. 410), and was formerly section 17 
 of chapter 344, Laws 1857. The reference to " District Courts " in 
 the old section is omitted for the reason that there is only one court 
 now, and the adjoining district to which the case may be sent is to be 
 specified by the justice of the district in which the action was com- 
 menced. 
 
 § 61. Plaintiff to be notified of arrest. — The marshal mak- 
 ing the arrest must immediately give notice thereof to the 
 plaintiff, and endorse on the order of arrest, and subscribe 
 a certificate stating the time of serving the same, and of giv- 
 ing notice to the plaintiff. 
 
 Note to section 6i. 
 
 This section is the same as section 1310 of the Consolidation Act 
 (Laws 1882, chap. 410), and was formerly section 18 of chapter 344 
 of the Laws of 1857. 
 
 § 62. Bail or deposit before return. — The defendant may 
 give bail, by delivering to the marshal a written undertak-
 
 § 63. Order of Arrest. 173 
 
 ing to the plaintiff, in the sum specified in the order of 
 arrest, executed by one or more sureties, to the effect that 
 the defendant will attend in person at the opening- of the 
 court, on the next day thereafter when it is there in session, 
 or he may deposit with the marshal the sum specified in the 
 order of arrest. In either case the marshal must forthwith 
 release him from custody. 
 
 Notes to section 62. 
 
 This section is the same as section 1311 of the Consolidation Act 
 (Laws 1882. chap. 410), which is substantially section 3180 of the 
 Code of Civil Procedure embraced in section 3218 of said Code. 
 
 Agreement with sureties for deposit with trust company. — It shall 
 be lawful for any party of whom a bond or undertaking is required, to 
 agree with his sureties for the deposit of any or all moneys for which 
 such sureties are or may be held responsible with a trust company 
 authorized by law to receive deposits, if such deposit is otherwise 
 proper, and for the safe-keeping of any or all other depositable assets 
 for which such sureties may be held responsible, with a safe deposit 
 company authorized by law to do business as such, in such a manner as 
 to prevent the withdrawal of such moneys and assets, or any part 
 thereof, except with the written consent of such sureties, or an order 
 of the court made on such notice to them, as it may direct. Part of 
 § 813 of the Code Civ. Proe. 
 
 § 63. Bail may be examined. — Where bail is given as pre- 
 scribed in the last section, the officer taking the acknowl- 
 edgment of the undertaking must, if the marshal so requires, 
 examine under oath, to a reasonable extent, the persons 
 offering to become bail, concerning their property and their 
 circumstances. The defendant may give bail, or make the 
 deposit, immediately upon his arrest, at any hour of the 
 day or night; and he must have reasonable opportunity to 
 seek for and procure, bail, before being committed to jail. 
 "Where a deposit is made, the money deposited must, before 
 the expiration of the next day, thereafter, not being Sun- 
 day or a public holiday, be paid by the marshal into court, 
 by paying the same directly to the clerk in the district in 
 which the action is brought, which said deposit shall be 
 regarded as an undertaking, and shall have the same force 
 and effect and no other.
 
 174 Order of Arrest. §§ 64, 65. 
 
 Note to section 63. 
 
 This section is substantially the same as section 1312 of the Con- 
 solidation Act (Laws 1882, chap. 410), with the exception that where 
 a deposit is made, the marshal must pay the money to the clerk of 
 the court instead of to the chamberlain. Section 1312 was substantially 
 section 3181 of the Code of Civil Procedure and was made applicable 
 by section 3218 of said Code. 
 
 § 64. Bail or deposit after return. — At any time after the 
 return of the marshal, and before final judgment, the court 
 may admit a defendant in custody to bail, or allow him to 
 make a deposit; and may direct his release upon his giving 
 bail or making the deposit accordingly. The sum to be de- 
 posited or the sum specified in the undertaking of the bail, 
 must be fixed, and the sureties in the undertaking must be 
 approved by the court, which must be satisfied by their 
 examination, or by other proof, respecting their sufficiency. 
 The undertaking must be to the effect that the defendant 
 will at all times, render himself amenable to any mandate 
 which may be issued, to enforce a final judgment against 
 him in the action. 
 
 Notes to section 64. 
 
 This section is substantially the same as section 1313 of the Con- 
 solidation Act (Laws 1882, chap. 410), which was substantially the 
 same as section 3182 of the Code of Civil Procedure made applicable 
 by section 3218 of said Code. 
 
 Abandonment bonds. — The court has the same power as to requir- 
 ing further security, or committing defendant in default thereof, as is 
 conferred by law upon judges of courts of record in similar cases. See 
 § 178. 
 
 § 65. When and how defendant to remain in custody. — 
 
 Unless bail is given, or a deposit is made, as prescribed in the 
 last three sections, the defendant must remain in the jail 
 by virtue of the order of arrest, until final judgment in the 
 action; and if the judgment is against the defendant, until 
 the return of an execution against property issued there- 
 upon. But the court must direct him to be brought into 
 court, at the time of the trial; and it may in its discretion, 
 direct him to be brought into court at any other time. In
 
 §§ 60, 67. Order of Arrest. 175 
 
 either case he must be taken from the jail, and brought into 
 court accordingly. Nothing in this section shall be so con- 
 strued as to prevent a defendant at any time after judg- 
 ment from being admitted to the jail liberties in the man- 
 ner provided by law, whether formal execution against the 
 person has issued or not. 
 
 Note to section 65. 
 
 This section is the same as section 1314 of the Consolidation Act 
 (Laws 1882, chap. 410), with the exception of the addition commenc- 
 ing from the words " nothing in this section," etc., and is substantially 
 section 3183 of the Code of Civil Procedure made applicable by sec- 
 tion" 3218 of said Code. 
 
 § QG. Duty of marshal.— The marshal making the arrest, 
 or another marshal, by direction of the court, must keep the 
 defendant in custody, unless he shall give the security for 
 his appearance, or until he is duly discharged by order of 
 the court; but in no case can such detention exceed forty- 
 eight hours, excluding Sundays and legal holidays, from the 
 time of his first being brought before the court, unless 
 within that time the trial of the action be commenced, and 
 formally proceeded with, and resumed without any inter- 
 ruption other than the necessary recess of the court. 
 
 Note to section 66. 
 
 This section, together with the next section, is taken from sections 
 1315 and 1363 of the Consolidation Act (Laws 1882, chap. 410), which 
 were taken respectively from Laws 1857, chap. 344, §§ 19, 26. 
 
 § 67. Undertaking by arrested defendant on applying for 
 adjournment. — If the defendant make application for an 
 adjournment, or demand a jury trial at the time he is brought 
 before the court, before it can be granted, he must, unless 
 he has given bail or made a deposit, execute an undertak- 
 ing, with one or more sufficient sureties, to be approved by 
 the court, which approval must be indorsed on the under- 
 taking, to the effect that he will appear on the adjourned 
 day, and not depart until duly discharged according to law,
 
 176 Okdek of Abbest. § 68. 
 
 or until after the trial and judgment, and that he will sur- 
 render himself into custody if any execution be issued upon 
 the judgment when obtained against him in the action. 
 
 Note to section 67. 
 
 See § 193 and notes to § 66. 
 
 § 68. Motion to discharge from arrest. — A defendant, ar- 
 rested as prescribed in this article, may, without notice, upon 
 the appearance of the plaintiff before the court, or at any 
 time afterwards before judgment, upon two days' notice 
 given personally to the plaintiff, or to his agent or attorney 
 who appeared for him before the court, apply to the court for 
 an order, discharging him from arrest. The application may 
 be founded upon the papers upon which the order of arrest 
 was granted, and upon the complaint, if it has been made. 
 The court must grant the application, where it appears that 
 the case is not within the provisions of section fifty-six of 
 this act. The court must also, upon the defendant's appli- 
 cation, grant an order discharging him from arrest, if the 
 plaintiff fails to take out an execution, upon a judgment in 
 his favor, before the expiration of twenty-four hours after 
 he is entitled thereto. 
 
 Notes to section 68. 
 
 This section is new and is substantially section 2901 of the Code 
 of Civil Procedure, relating to "Courts of justices of the peace." Sec- 
 tion 1315 of the Consolidation Act (Laws 1882, chap. 410), provided 
 for the discharge of the defendant by order of the court in a general 
 way. 
 
 Belief. — If the defendant believes his representations which he makes 
 as to his liability to pay, before or at the time he purchases goods of 
 the plaintiff, are true when he makes them, he is not guilty of any 
 fraud, however false they may be in fact. Gafney v. Burton, 12 How. 
 Pr. 516. 
 
 An affidavit is good although the applicant swears only to his belief 
 as to the intent of fraud, provided he sets forth, on his positive oath, 
 facts and circumstances on which such belief is founded. Fullan v. 
 Heat on, 1 Barb. 552. 
 
 Chattels, concealment of. — The intent must appear by the facts stated. 
 Midler v. Perrin, 14 Abb. Pr. N. S. 95.
 
 § 6S. Order of Arrest. 177 
 
 It is not sufficient to show merely that the defendant removed it. 
 The intent must appear that it should not be found, or taken by the 
 marshal, so as to deprive plaintiff of it. Watson v. Mcd'uirc, 33 How. 
 Pr. 87; Jouanique v. De Luc, 1 Abb. Pr. N. S. 419; Muller v. Perrin, 
 14 Abb. Pr. N. S. 95. 
 
 Christian names of plaintiffs must be stated on the papers on which 
 the order of arrest was granted. Appearance by defendant waives the 
 defect. 7 Cow. 36G; Ballowhey V. Cadot, 3 Abb. Pr. N. S. 122. 
 
 The law does not recognize a single letter as a name. Frank v. 
 Lcvic, 5 Robt. 599, 37 Barb. 479. 
 
 Copies of letters, documents, or papers, upon which information and 
 belief is founded must be annexed. De Weerth v. Feldncr, 1G Abb. Pr. 
 295; De Nierth v. Sidner, 25 How. Pr. 419. 
 
 Counter-affidavits. — Where the affidavits do not state facts within 
 the plaintiff's own knowledge, and which, being uncontradicted, would 
 establish prima facie the defendant's guilt, the order will be vacated 
 upon contradictory affidavits by the defendant. Sachs v. Bertrand, 22 
 How. Pr. 95. 
 
 On being brought before the justice he may read counter-affidavits 
 to those of the plaintiff and move thereon to discharge the arrest. 
 This must be done before issue joined. Johnson v. Florence, 32 How. 
 Pr. 230. 
 
 The defendant may elect whether he Avill informally demur to the 
 plaintiff's case, set forth in the original affidavits, as insufficient to 
 warrant the arrest, thus presenting the naked legal question on un- 
 disputed averments of fact, or whether he will open the merits of the 
 whole controversy by moving on counter-affidavits, raising issues of 
 fact, and proceed to an informal trial on the merits. But he cannot, 
 in legal effect, pursue both methods at the same time, by selecting as 
 the subject of denial and dispute such portions only of the plaintiff's 
 case as he may deem most easily disproved, and thus debar the plain- 
 tiff from strengthening other portions by incontestable evidence, which 
 on the original proof, perhaps, could hardly be sustained. The plain- 
 tiff, in such case, has the right to read additional affidavits which 
 ■establish the fact in question beyond dispute. Evans v. Holms, 46 
 How. Pr. 515. 
 
 Counterclaim. — -In an action to recover the value of chattels converted 
 by defendant, it is not ground for discharging an order of arrest that 
 the defendant has a claim for a larger amount against the plaintiff. 
 Hullet v. Reyns, 1 Abb. Pr. N. S. 27. 
 
 Default in answer does not preclude motion to vacate. — The pro- 
 visions allowing a verified complaint to be served, and providing that, 
 unless a verified answer be filed, the justice must render judgment 
 for the plaintiff without putting him to any proof, does not deprive 
 this court of the power, upon default of a defendant to answer such 
 
 12
 
 178 Order of Arrest. § 68. 
 
 a complaint, to adjourn the cause for the purpose of hearing a motion 
 to vacate an order of arrest. Adler et til. v. Keiner, L3 Daly, CO; s. c> 
 21 Week. Dig. 484, limiting Ahrens v. Burke, 63 How. Pr. 50. 
 
 Defective copies served. — That the copy of the affidavit served with 
 the order of arrest does not purport to have been duly signed or veri- 
 fied is no ground for discharging the defendant from custody. Barker 
 v. Cook, 10 Abb. Pr. 88 ; s. c, less fully, 25 How. Pr. 190, and 40 Barb. 
 254; Bunk of Havana v. Moore, 5 Hun, 624. 
 
 An order of arrest will not be vacated because the copies of the 
 papers served did not contain a jurat or verification, if the original 
 papers were not defective. Petschaft v. Lubow, 27 Misc. Rep. 50. 
 
 Explanations. — Where the defendant has full opportunity to explain 
 the allegations of the affidavits on which the order of arrest was 
 granted, and has failed to do so, these allegations are to be taken 
 most strongly against him. Brooklyn Daily Union v. Bay ward, 11 
 Abb. Pr. X. S. 235. 
 
 Extension of time of payment of debt vacates a prior order of arrest. 
 Foxell v. Jones, 11 Hun, 643. 
 
 Fiduciary capacity. — What is not, for which an arrest may issue, see 
 Buchanan F. 0. Co. v. Woodman, 1 Hun, 639; Morange v. Woodman, 6 
 Hun, 529. 
 
 Fraud.— Plaintiff must show affirmatively fraud, and where the evi- 
 dence is equally consistent with guilt and innocence, the latter must 
 prevail. Stoiv v. Stacy. 30 N. Y. St. Rep. 308. 
 
 There must be averments in the complaint of facts which constitute 
 fraud, or the arrest will be set aside. Lawrence v. Foxicell, 4 Civ. 
 Proc. Rep. 340. 
 
 Fraud merely constructive and not involving moral guilt is not 
 ground of arrest. Birchell v. Strauss, 8 Abb. Pr. 53. 
 
 Where there is no evidence of actual fraud in the debtor, he should 
 not be subjected to arrest for acts only constructively fraudulent. Peo- 
 ple v. Kelly, 35 Barb. 444. 
 
 All the items, and not some of them only, must be covered by the 
 fraud. Toffcy v. Williams, 5 Sup. Ct. (T. & C.) 294; Ely v. Stcigler, 9 
 Abb. Pr. X. S. 35. 
 
 A general allegation as to the falsity of representations in an ac- 
 tion for fraud is not enough. Particulars of the representation and 
 falsity must be given. Draper v. Beers, 17 Abb. Pr. 163; Thorp v. 
 Waddingham, 3 Daly, 275. 
 
 When inferences and conclusions are given. Crandall v. Bryan, 15 
 How. Pr. 48. 
 
 Arrest cannot be obtained in an action on a note on the ground that 
 the debt for which the note was given was fraudulently incurred; 
 where the claim arising from the fraud was perpetrated over six years 
 before the action was commenced, the fraud was barred by the statute
 
 § 68. Okder of Arrest. 179 
 
 of limitation, and payments on the note kept alive the note alone, and 
 not the fraud. Fritts v. Slade, 9 Hun, 145. 
 
 The plaintiff may sustain the order and resist the motion by prov- 
 ing other contemporaneous frauds by the defendant. Scott v. Williams, 
 23 How. Pr. 393, 14 Abb. Pr. 70. 
 
 Goods stolen. — A written complaint alleged that certain goods had 
 been stolen, and there was probable cause to suspect, and does suspect 
 that Frank Blodgett stole them, is insufficient. Blodgett v. Race, 18 
 Hun, 132. 
 
 Identity cf grounds of order of arrest with cause of action. — The 
 merits of the action cannot be tried on affidavits, though the defendant 
 cannot obtain bail, unless it is clear plaintiff will fail upon the trial 
 in his proofs of the facts charged. Royal Ins. Co. v. Noble, 4 Abb. 
 Pr. N. S. 54; Sicift v. Wylie, 5 Robt. 680; Faris v. Peck, 10 Abb. Pr. 
 N. S. 55; City v. Mumford, 47 Barb. 629; Tollman v. Whitney, 5 
 Daly, 505; Grisicold v. Street, 49 How. Pr. 171; Hoy v. Duncan, 33 
 N. Y. Super. ( 1 J. & S.)555. 
 
 The right to apply on motion for a discharge from arrest is secured 
 to all persons who may be arrested under orders in civil actions. 
 A defendant may, at any time before judgment, secure his liberation 
 from arrest and imprisonment, upon proof of that right, whether the 
 fact, out of which the liability to arrest is alleged to arise, form part 
 of the cause of action itself or not. Liddell v. Pa ton, 7 Hun, 195. 
 
 Where the cause of action set forth in the complaint and the ground 
 of arrest are the same, the controversy should be left to an investiga- 
 tion at a regular trial, and should not be decided upon conflicting affi- 
 davits on a motion to vacate the order of arrest. Welch v. Winterbum, 
 14 Hun, 519; Merritt v. Carpenter, 3 Keyes, 142. 
 
 Motion to vacate. — Although th cause of arrest be identical with the 
 cause of action, it is required, on a motion to vaoate the order, to 
 examine the affidavits and decide the motion upon the fair prepon- 
 derance of proof. Ar grave v. Black man, 25 Misc. Rep. 654, 28 Civ. 
 Proe. Rep. 362. 
 
 Vacating order. — An allegation of fraud in contracting the debt sued 
 for must be tried as an issue in the action, and an order of arrest 
 therein will not be vacated on conflicting affidavits in reference to it. 
 Rieben v. Francis, 29 Misc. Rep. 670. 
 
 A motion to vacate an order of arrest, though the grounds on which 
 it was granted are identical with those stated in the complaint as 
 affording a cause of action, may be granted, leaving plaintiff to try 
 his case and, if successful, enforce judgment by body execution. Strom- 
 berg v. Maister, 34 Misc. Rep. 810. 
 
 Identical money. — Complaint alleged defendants were auctioneers, and 
 as such " sold and delivered, for account of plaintiff, divers pieces of 
 furniture." that they " received for the account and benefit of the 
 plaintiff, in their capacity of auctioneers, the sum of $271.18, and there
 
 180 OEDEB O] A.KKEST. § 68. 
 
 remains due and owing from defendants to plaintiff the sum of $210.67, 
 with interest from April 26, 1S72. which sum hath been often de- 
 manded but refused." Held, that it did not appear from the com- 
 plaint that it was the duty of the defendant to pay over the identical 
 money received, but simply that he had received a certain sum of 
 money on account of plaintiff, which he could pay with any funds, 
 subject to his use and control. The identical money must appear to 
 be property of the creditor. Morange v. Waldron, 6 Hun, 529. See 
 also Buchanan F. 0. Co. v. Woodman, 1 Hun, 639. 
 
 Inconsistency. — Where the affidavit is inconsistent with the complaint 
 in facts, the arrest will be vacated. Wicke v. Harmon, 21 How. Pr. 
 462; s. c, 12 Abb. Pr. 476. 
 
 Information and belief. — Where the facts alleged are stated upon 
 information and belief merely, and the sources thereof and grounds 
 of belief are not given. Satow v. Reisenberger, 25 How. Pr. 164; 
 Markey v. Diamond, 1 Misc. Rep. 97; De Nierth v. Sidner, 25 How. 
 Pr. 419. 
 
 Copies of letters, documents, or papers, upon which information and 
 belief is founded, should be furnished. Weerth v. Feldner, 11 Abb. 
 Pr. 295; De Nierth v. Sidner, 25 How. Pr. 419. 
 
 Items. — All the items must be covered by the fraud, and not some of 
 them only. Toffey v. Williams, 5 Sup. Ct. (T. & C.) 294. See also 
 Ely v. Si'eigler, 9 Abb. Pr. N.S. 35; Madge v. Ping, 71 N. Y. 608; Bas- 
 sett v. Pitts, 15 Hun, 464. 
 
 Irregularities. — An order of arrest will not be set aside for failure to 
 file the undertaking, nor because it was a second order in the same 
 cause, unless the moving papers specify these as irregularities. Dicker- 
 hoff v. Ahlborn, 2 Abb. N. C. 372. 
 
 Where a plaintiff unites in his complaint two causes of action, one of 
 which is bailable and the other not, he waives his right to bail as to 
 both, and an order of arrest cannot be sustained. Madge v. Ping, 71 
 X. Y. 608, revg. s. c, 12 Hun, 15. 
 
 Joining other claim. — Where one indebted in a fiduciary capacity 
 gives a check which was protested for nonpayment, it is no objection 
 to vacate the arrest that the complaint also demands the costs of pro- 
 test, they not being claimed as a separate cause of action. Shipman v. 
 Shafer, 14 Abb. Pr. 449. 
 
 Jurisdiction. — Where an action for wrongful injury to personal prop- 
 erty is commenced by the service of a summons, accompanied by an 
 order of arrest, jurisdiction does not depend upon the sufficiency of 
 the affidavit upon which the order of arrest was made, but upon the 
 service of the summons, and it still remains though the order be set 
 aside as improperly granted. McNeary v. Chase, 30 Hun, 491. 
 
 Motion, when it can be made. — A defendant cannot move for an order 
 to discharge him from arrest, before he has been actually arrested by
 
 § 69. Order of Arrest. 181 
 
 the officer, and served with the papers. Them v. Rackow, 44 How. Pr. 
 443. 
 
 New grounds of arrest cannot be used to resist motion to vacate. 
 Chambers v. Durand, 33 j\. Y. Super. ( 1 J. & S.) 193. 
 
 Order of arrest, statements in. — A statement in an order of arrest 
 that the ground therefor " is the conversion of money embezzled or 
 fraudulently misapplied by said defendant in the course of his em- 
 ployment as attorney,"' does not make the order defective as being 
 in the alternative, since it is merely a definition of the offense in 
 equivalent terms. Quail v. Nelson, 39 App. Div. 18; Blank v. Nelson, 
 39 App. Div. 21. 
 
 Privileged from arrest. — See next section and notes. 
 
 Second arrest. — When a defendant has been discharged from imprison- 
 ment, by due course of law, he ought not to be rearrested, for the 
 same cause, though in a different form of action. Wright v. Ritter- 
 man, 4 Robt. 704; s. c, 1 Abb. Pr. N. S. 428. S~o also Enoch v. Ernst, 
 21 How. Pr. 96. 
 
 Settlement after the fraud will, upon motion, be cause to vacate the 
 arrest. "Nelson v. Blanchfield, 54 Barb. 630. 
 
 Principal's right to arrest factor barred by receiving notes for claim. 
 Trunninger v. Busch, 7 Daly, 124. 
 
 Waiver. — In an action commenced by a warrant of arrest, issued on 
 affidavits showing a ground of arrest extrinsic of the cause of action, 
 if the defendant does not move to vacate the order of arrest, he admits 
 that the warrant was rightly issued. Coles v. Hannigan, 8 Daly, 43. 
 
 § 69. Privilege from arrest.— This article does not abridge 
 or otherwise affect a privilege from arrest given by law, or 
 a right of action for the breach thereof. A privileged per- 
 son is entitled to be discharged from arrest, by the order of 
 the court before which he is brought, upon proof, by affi- 
 davit, of the facts entitling him to a discharge; or he may 
 apply for and obtain an order for his discharge, as prescribed 
 in section five hundred and sixty-four of the code of civil 
 procedure. 
 
 Notes to section 69. 
 
 This section is new, and is applied from section 2904 of the Code 
 of Civil Procedure relative to justices' courts. 
 
 General provision as to privileges from arrest; discharge of privileged 
 person. — Section 564 of the Code of Civil Procedure, referred to in this 
 section, is as follows: "This title does not abridge or affect a privi- 
 lege from arrest given by law, or a right of action for a breach thereof. 
 A privileged person is entitled to be discharged from arrest where 
 other provision is not made therefor by law, by the court, or a judge 
 thereof. * * * The order must be made upon proof, by affidavit,
 
 182 Order of Arrest. § TO. 
 
 of the facts entitling the applicant to the discharge; and the arrest 
 and discharge are not a bar to a new arrest, after the privilege has 
 ceased. The court or judge may make the order without notice, or 
 may require notice to be given to the sheriff (marshal) or to the plain- 
 tiff, or to both." 
 
 Attorney or counselor is privileged from arresl when " he is employed 
 in a cause to be heard at that term." § 5G5, Code Civ. Proc. 
 
 Election day. — It is not a ground for setting aside an order of arrest 
 that the party had been arrested previously in the same suit, and on 
 the same process, on a day of general election. The exemption from 
 arrest expires with the day of election, and the parties afterward 
 stand toward each other as if no previous arrest had been made. 
 14 Johns. 346, 1 Wend. 32, 5 Wend. 90; Petrie v. Fitzgerald, 1 Daly, 
 401. See also People v. Tweed, 63 N. Y. 202, confirming 5 Hun, 382; 
 Young v. Weeks, 7 Daly, 115. 
 
 Exemption. — Defendant was arrested in the street, near the court 
 room, but before the court commenced its session. He had gone to 
 attend either the trial or proceedings for the removal of the cause to 
 another court, upon justification of sureties, and when arrested was 
 leaving to go home, because he thought nothing would be done. Held, 
 that he was entitled to go to ascertain if anything would be done in 
 the action, and to return unmolested, and that merely stopping to 
 announce to the counsel for" the opposite party that no steps would 
 be taken was not such a deviation from his journey as justified his 
 arrest. Salhinger v. Alder, 2 Robt. 704. 
 
 The exemption of the party or witness from the arrest is a personal 
 privilege which can be waived, and the waiver is complete where the 
 party or witness fails to claim it at once, and does some act in the 
 cause in reference to his appearance, such as perfecting bail, by jus- 
 tification of the sureties. 8 Abb. Pr. 41G, 15 Barb. 26, 7 Cow. 366, 
 5 How. Pr. 233, 4 Hill, 59: Petrie v. Fitzgerald, 1 Daly, 401; Mackey 
 v. Lewis, 7 Hun. 83. 
 
 § TO. Sections applicable as to undertakings, et cetera 
 
 Sections one hundred and six to one hundred and ten of this 
 revision inclusive and sections one hundred and twenty- 
 seven and one hundred and twenty-eight, in so far as they 
 relate to undertakings, sureties and justification, apply to 
 proceedings under this title, and the exceptions to, and ex- 
 amination of, sureties, whether on undertaking, or bail, may 
 be made and conducted, by the adverse party, as prescribed 
 therein. 
 
 Note to section 70. 
 
 This section is new. See also § 02. 
 
 Note. — There are no sections 71 and 72.
 
 § 73. Attac 1 ! .M E N T. 183 
 
 ARTICLE II. 
 Attachment. 
 
 Section 73. When may be granted. 
 
 74. What must be shown to procure warrant. 
 
 75. Contents of warrant 
 
 76. Undertaking. 
 
 77. how warrant to be executed. 
 
 78. Attachment, how levied. 
 
 79. Certificate of defendant's interest to be furnished. 
 
 80. Person refusing certificate may oe examined. 
 
 81. Marshal may maintain action. 
 
 82. When attachment discharged, et cetera. Property to be 
 
 restored to defendant. 
 
 83. Service of summons and warrant of defendant. 
 
 84. Undertaking of defendant. 
 
 85. Claim by third person; bond and delivery thereupon. 
 
 86. Judgment upon bond. 
 
 87. Action upon undertaking where warrant is vacated. 
 
 88. Return by marshal attaching. 
 
 89. Application to vacate or modify warrant of attachment. 
 
 90. Effect of vacating warrant. 
 
 91. Judgment where property has been attached. 
 
 92. Sections applicable as to undertaking, et cetera. 
 
 § 73. Attachment, when may be granted. — A warrant of 
 attachment against the property of one or more defendants 
 must be granted, upon the application of the plaintiff, as 
 hereinafter prescribed, in an action upon one or more of 
 the following causes of action : 
 
 1. Upon a judgment. 
 
 2. Breach of a contract, express or implied. 
 
 3. Wrongful conversion of personal property. 
 
 4. Any other injury to personal property, in consequence 
 of negligence, fraud or misconduct. 
 
 Notes to section 73. 
 
 This section is substantially the same as section 1316 of the Con- 
 solidation Act (Laws 1882, chap. 410), with the exception of sub- 
 division 1, "Upon a judgment," which has been added. 
 
 Fictitious names; no authority to grant attachments on. — This 
 court has no authority, and never had, to grant attachments against
 
 1S4 Attachment. § 74, Subd. 1. 
 
 persons by fictitious names. McCabe v. Doe, 2 E. D. Smith. 04; 
 Gardner v. McKraft, Daily Reg.. Feb. 23, 1877; Davenport v. Doady, 
 3 Abb. Pr. 409; Solinger v. Patrick, 9 Daly, 151. 
 
 Not a matter of right. — An attachment cannot be demanded as a 
 matter of right, and whether in a particular case it should issue is 
 within the discretion of the court; an order therefore refusing the 
 writ is not reviewable. Sarticell v. Field, 68 N. Y. 341. 
 
 § 74. What must be shown to procure warrant. — To entitle 
 the plaintiff to such a warrant, he must show, by affidavit, 
 to the satisfaction of the court, as follows: 
 
 Note to section 74. 
 
 This section is taken from section 1317 of the Consolidation Act 
 (Laws 1882, chap. 410^, which was the same as section 2906 of the 
 Code of Civil Procedure. Subdivision 2 of this section has been 
 changed so that the departure referred to in subdivision 2 of section 
 1317 is now to places without the limits of the city of !New York 
 as now constituted under the Charter (Laws 1897, chap. 378, as 
 amended in 1901), which includes four counties and five boroughs. 
 
 1. That a sufficient cause of action exists against the de- 
 fendant to recover damages for one or more causes specified 
 in the last section. If the action is upon a judgment, or to 
 recover for breach of a contract, the affidavit must show 
 that the plaintiff is entitled to recover a sum stated therein, 
 over and above all counterclaims known to him. 
 
 Notes to section 74, subdivision 1. 
 
 Affidavit, requisites of. — It is the uniform practice of the courts in 
 reviewing proceedings had, if possible, to sustain them by every reason- 
 able and warrantable intendment. The creditor is not required to 
 furnish conclusive evidence of the facts relied on. It is sufficient if 
 the proof has a legal tendency to make out, in all its parts, a case 
 for the issuing of the attachment; and if the facts and circumstances 
 disclosed fairly call for the exercise of judgment, the proceedings are 
 not void. To defeat jurisdiction it must be made to appear that there 
 is a total want of evidence upon some particular point. The rule is 
 the same whether the question arises in a direct or in a collateral 
 proceeding. Schoonmaker v. Spencer, 54 N. Y. 366. 
 
 Amount due must be shown by facts. — The statutes giving jurisdic- 
 tion must be strictly followed, or jurisdiction will not be acquired.
 
 § 74, Subd. 1. Attachment. 185 
 
 An affidavit stating only that the defendant is indebted to the attach- 
 ing creditor in a sum named, " over and above all discounts," is in- 
 sufficient to sustain the process, and both that and all subsequent 
 proceedings are without jurisdiction. Solinger v. Patrick, 7 Daly, 408, 
 48 Barb. 68. See also Riley v. Skidmore, 6 N. Y. Supp. 107. 
 
 When the affidavit alleges that there is a large sum of money due 
 from the defendant, but omits to specify the amount of the claim, it 
 will be insufficient. Ackroyd v. Ackroyd, 20 How. Pr. 93; s. c, 11 
 Abb. Pr. 345. 
 
 An averment " that deponent will allege in his complaint herein " 
 is insufficient. Axford v. Seguine, 70 App. Div. 228. 
 
 The affidavit must state facts showing, presumptively at least, that 
 the amount claimed is owing to plaintiff, and it is not enough merely 
 to 'State that the amount is due to him. McLoughlin v. Naugle, 34 
 Misc. Rep. 385. 
 
 In an affidavit to procure an attachment, it is not absolutely neces- 
 sary for plaintiff to adopt the words of the statute in order to show 
 the right of recovery, and the facts required are sufficiently stated 
 by the words, " Defendants are justly indebted to him in the sum. 
 of $511.31 over all set-offs or counterclaims that said defendants might 
 have against this plaintiff to his knowledge." Richerson v. Bunker, 
 26 Misc. Rep. 383. 
 
 In an affidavit for an attachment, where the damages are unliqui- 
 dated, it is necessary to set out the facts which the plaintiff claims 
 prove the damage, in order that the court may determine whether 
 any damage has been sustained. James v. Signell, 60 App. Div. 75. 
 
 To sustain an attachment in an action on contract, the specific sum 
 due must be established by proof, not merely averred, and if plaintiff, 
 by adopting the wrong measure of damages, claims too much, the 
 attachment must be set aside. Smith v. Sivenson, 26 Misc. Rep. 151. 
 
 Belief. — The facts upon which belief is founded must be stated. 
 Camps v. Tibbets, 2 E. D. Smith, 20; Fulton v. Beaton, 1 Barb. 
 552; Smith v. Luce, 14 Wend. 237, 20 Wend. 77, 145; Steivart v. 
 Broum, 16 Barb. 367. 
 
 An affidavit in which facts are stated upon belief only is fatally de- 
 fective. Dewey v. Greene, 4 Den. 93; Mott v. Lawrence, 9 Abb. 196, 
 17 How. 559. 
 
 An affidavit made on information derived from a person not named, 
 and not under oath, without any explanation of the reason why the 
 affidavit of such person is not procured, or more reliable testimony 
 obtained, is not sufficient. Information from third parties may be 
 sufficient, where the source and nature of the information are set 
 forth with such particularity and certainty that defendant can easily 
 contradict it if it is untrue, and the plaintiff's inability to procure their 
 affidavits is shown. Greene v. Gonzales, 2 Daly, 412.
 
 186 Attachment. § 74, Subd. 2. 
 
 The affidavit is defective where the important allegations are all 
 upon information and belief, the source of information being said to 
 be contained in affidavits on file in the court, when the affidavits re- 
 ferred to are not quoted from, nor are their contents nor any por- 
 tion of them stated. Selser Bros. Co. v. Potter Produce Co., 77 Hun, 
 313. See also Sizer v. Hampton, etc., 07 App. Div. 547. 
 
 The omission to sta'e in the affidavit, made upon information and 
 belief, the names of the informants, and to excuse the failure to file 
 their affidavits, is a fatal defect, and calls for vacating the attach- 
 ment. Acker, Merrall & Gondii v. Saynisch, 25 Misc. Rep. 415, affg. 
 26 Misc. Rep. 836. 
 
 It is not necessary, in order to give jurisdiction to issue an attach- 
 ment, that the affidavit should state specifically that a summons has 
 been issued or served; a statement that an action has been commenced 
 is sufficient. ^Yallace v. Castle, 68 N. Y. 370. 
 
 Before service of summons. — An attachment can be allowed, issued, 
 and served before the service of the summons is completed. Corson 
 v. Ball, 47 Barb. 452. 
 
 To authorize the issuing of an attachment it is not necessary that 
 a summons shall have been served ; for that purpose, " an action shall 
 be deemed commenced when the summons is issued." Wallace v. 
 Castle. 68 N. Y. 370. See also § 30, ante. 
 
 Cause of action. — Where an affidavit, upon an application for an 
 attachment, alleges that " the defendants are indebted to us, the plain- 
 tiff, in the sum of $3,260.85, for goods sold and delivered, for which 
 they have promised but failed to pay," it sufficiently states a cause of 
 action. If the goods were not payable on delivery, but were sold on 
 credit, it rests upon the defendant to show such to be the case; it is 
 not necessary for the plaintiff to deny that it is so in his affidavit. 
 Eiefer v. Webster, 6 Hun, 526. 
 
 2. That the defendant is either a foreign corporation, or 
 not a resident of the state; or, if the defendant is a natural 
 person, and a resident of the state, that he has departed, or 
 is about to depart from the county where he last resided, to 
 a place outside the city of New York, with intent to defraud 
 his creditors, or to avoid the service of a summons, or keeps 
 himself concealed, with the like intent; or if the defendant 
 is a natural person, or a domestic corporation, that he or it 
 has removed, or is about to remove property from the county 
 where the defendant, being a natural person, last resided, 
 or being a corporation, has kept its principal office, to a 
 place outside of the city of New York, with intent to de-
 
 g 74, Subd. 2. Attachment. 1ST 
 
 fraud his or its creditors, or has assigned, disposed of, or 
 secreted, or is about to assign, dispose of, or secrete prop- 
 erty, with the like intent; or where for the purpose of pro- 
 curing credit or the extension of credit, the defendant has 
 made a false statement in writing, under his own hand and 
 signature, or under the hand and signature of a duly au- 
 thorized agent, made with his knowledge and acquiescence, 
 as to his financial responsibility or standing. Or that the 
 defendant being a natural person of full age, and a resident 
 of the state, has been continuously without the United 
 States for the space of six months or more, immediately 
 before the application and either that he has not made a 
 designation of a person upon whom to serve a summons in 
 his behalf as prescribed in section four hundred and thirty 
 of the code of civil procedure, or that service upon the per- 
 son so designated cannot be made, with due diligence, in 
 the county where the person making the designation resides. 
 The affidavit must be filed in the office of the clerk of the 
 court, in the district in which the action is brought when 
 the warrant is issued. 
 
 Notes to section 74, subdivision 2. 
 
 Concealment. — Where the essential statutory fact to be shown was 
 concealment with intent to avoid service of a summons, — Held, that 
 affidavits alleging absence of the defendant from his usual place of 
 business and resort soon after the debt had been demanded of him, 
 coupled with his refusal, when asked by plaintiff, to give his address 
 or residence, contained enough to fairly call upon the magistrate for 
 the exercise of his judgment upon the evidence. Easton v. Malavazi, 
 7 Daly, 147. 
 
 A removal, or concealment, of himself by defendant, with intent 
 to avoid the service of a summons, is a sufficient ground for an 
 attachment, and it is not necessary to show that the concealment was 
 for the express purpose of avoiding service in the present action. 
 Finn v. Mehrbach, 30 Civ. Proc. Rep. 242, 65 N. Y. Supp. 250. 
 
 Departure. — An affidavit which states positively in the language of 
 the statute the single fact that the defendant had departed from the 
 county with intent to defraud his creditors, or had departed from 
 the county, standing alone, unaided by any other fact or circumstance, 
 is not legal evidence of a departure from the county with intent to 
 defraud his creditors. Furman v. Walter, 13 How. Pr. 348; Stewart 
 v. Brunn, 16 Barb. 367.
 
 1S8- Attachment. § 74, Subd. 2. 
 
 Affidavits in support of an attachment, issued on the ground that 
 defendant " has departed from this State to England with intent to 
 defraud his creditors, or to avoid the service of a summons in this 
 action," — Held insufficient. Ringler Co. v. Newman, 33 .Misc. Rep. 
 653. 
 
 Allegations concerning the absence of defendant from his office and 
 his home, and of unsuc< essful attempts to reach him, — Held sufficient 
 to show fraudulent intent as to creditors, titeivart v. Lyman, 62 App. 
 Div. 182. 
 
 Designation, by a resident, of a person upon whom to serve a sum- 
 mons during his absence; effect and revocation thereof. — Section 430 
 of the Code of Civil Procedure, mentioned in section 74 of this act, 
 was made applicable, because of the frequent protracted absence of 
 residents abroad, and is as follows: 
 
 § 430. A resident of the State, of full age, may execute, under his 
 hand, and acknowledge, in the manner required by law to entitle a 
 deed to be recorded, a written designation of another resident of the 
 State, as a person upon whom to serve a summons, or any process or 
 other paper for the commencement of a civil special proceeding, in 
 any court or before any officer, during the absence from the State of 
 New York of the person making the designation ; and may file the 
 same, with the written consent of the person so designated, executed 
 and acknowledged in the same manner, in the office of the clerk of 
 the county where the person making the designation resides. The 
 designation must specify the occupation, or other proper addition, and 
 the residence of the person making it, and also of the person desig- 
 nated; and it remains in force during the period specified therein, if 
 any; or. if no period is specified for that purpose, for three years after 
 the filing thereof. But it is revoked earlier, by the death or legal 
 incompetency of either of the parties thereto; or by the filing of a 
 revocation thereof, or of the consent, executed and acknowledged in 
 like manner. The clerk must file and record such a designation, con- 
 sent or revocation ; and must note, upon the record of the original 
 designation, the filing and recording of a revocation. While the desig- 
 nation remains in force as prescribed in this section, a summons, or 
 any process or other paper for the commencement of a civil special 
 proceeding, against the person making it, in any court or before any 
 officer, may be served upon the person so designated, in like manner 
 and with like effect, as if it was served personally upon the person 
 making the designation, notwithstanding the return of the latter to 
 the State of New York. 
 
 Evidence of intent. — The affidavit stated that the defendant was 
 about to dispose of his property with intent to defraud his creditors; 
 that defendant left the country two months before and went to Canada 
 with intent to remain there, taking with him portions of his goods; that
 
 § 74, Sued. 2. Attachment. 189 
 
 he had no family and but little property; that he was offering his prop- 
 erty for sale; that he had told the plaintiff he would be glad if he ever 
 got his pay of him; that no civil process could be served on him be- 
 cause he kept out of the State, and that he refused to pay anything on 
 plaintiff's debt. Held, that these facts showed a strong case of intent 
 to dispose of property to defraud creditors. Rosenfield v. Howard, 15 
 Barb. 546. 
 
 Where the defendant, when called upon by plaintiff upon several oc- 
 casions, to pay the amount of his demand, put it off, stating that her 
 husband every night took all the money which she had obtained during 
 the day, and paid it to persons in the city of New York from whom she 
 had purchased goods, and when the payment to such persons was dis- 
 proved by affidavit, no other inference could be drawn by the court 
 than that such disposition of the defendant's money was made with 
 intent to defraud, and that it was a proper case for an attachment. 
 Anderson v. O'Reilly, 54 Barb. 620. 
 
 The affidavit, upon the ground of fraud, alleged the facts constitut- 
 ing fraud, upon information and belief, and one of the affiants averred 
 that he stated to defendant the facts, that defendant did not deny 
 them, but promised to immediately call and settle or give security. 
 Held sufficient evidence of fraud to warrant the attachment. Blake 
 v. Bernhard, 6 N. Y. Super. 74. See also the cases of Bump v. Daheny, 
 36 N. Y. St. Rep. 114, 12 N. Y. Supp. 901; Pattison v. Delaney, 20 Civ. 
 Proc. Rep. 427. 
 
 Hearsay. — Statement as to defendant's departure from the country 
 must be on information and belief. Hearsay is not enough. Sickles v. 
 Sullivan, 5 Hun, 569; Garrison v. Marshall, 44 How. 193. 
 
 Nonresident. — In order to procure an attachment against a non- 
 resident, the affidavit should state the facts and circumstances on which 
 plaintiff relies to make out his cause of action, and these facts must 
 be stated positively. Wells v. Sisson, 14 Hun, 267. 
 
 An affidavit which states that the plaintiff has a debt against the 
 defendant, arising upon contract, and that the defendant is a non- 
 resident of the county, is enough to warrant the justice in issuing an 
 attachment. Van Kirk v. Wilds, 11 Barb. 520. See to the contrary, 
 however, Wells v. Sisson, 14 Hun, 267. 
 
 An affidavit against a nonresident, for a tort, is sufficient in respect 
 to the matter of residence, if it states that the plaintiff is a resident of 
 the county, and that the defendant is not, but resides in another county. 
 10 Wend. 360, 13 Wend. 46, 14 Wend. 237, 20 Wend. 77, 1 Den. 592; 
 Pope v. Hart, 35 Barb. 630; s. c, 23 How. Pr. 215; Cleios v. Rockland, 
 etc., R. R. Co., 2 Hun, 379. 
 
 Upon an application on the ground of the nonresidence of the de- 
 fendant, the affidavit is not required to state in positive terms that he 
 is not a resident of the State. It is sufficient when that conclusion is
 
 190 Attachment. § 74, Sued. 2. 
 
 the only one which can be consistently drawn from the fact- sel forth 
 in the affidavit. Domicile is the habitation fixed in any place with the 
 intention of always staving there, while residence is much more tempo- 
 rary in its character. The Mayor, etc., of New York City v. Genet, 4 
 Hun, 487. 
 
 The fact that a debtor, who resides in another State, lias a place of 
 business within this St^te does not make him a resident here, so as to 
 prevent the issuing of an attachment against him as a nonresident. 
 Tanner v. Church, 1 Abb. 299, distinguished and disapproved ; Wallace 
 & Sons v. Castle, 68 X. Y. 370. 
 
 An affidavit for, against a. foreign corporation, which states that the 
 plaintiff resides in another State, but does not state that the cause of 
 action arose in this State or that the contract sued on was made 
 therein, is insufficient to confer jurisdiction on the court. Allison \. 
 Snider Preserve Co., 20 Misc. Rep. 367. 
 
 'An attachment cannot issue out of this court upon the ground of 
 the nonresidence of the defendant, unless he is a nonresident of the 
 State of New York. Where he is merely a nonresident of the county of 
 New York, the attachment is void, and therefore where he was not 
 personally served, no judgment can be entered against him. Dlllcr v. 
 Willis, 34 Misc. Rep. 197. 
 
 Removal and disposing of property. — The affidavit must disclose the 
 facts from which the legal and logical deduction would be that the de- 
 fendant meant to remove property from the county with the fraudulent 
 intent specified in the statute. Mott v. Lawrence, 9 Abb. Pr. 196. 
 
 The mere fact of defendant closing his store, and packing his goods 
 until midnight, and the store being closed the next morning, his family 
 having been removed for two days without his neighbors being informed 
 of it, is not a necessary or presumptive legal conclusion that he meant 
 to remove his property with intent of defrauding his creditors. Mott 
 v. Lawrence, 17 How. Pr. 550, 9 Abb. Pr. 190, 5 Robt. 001. 
 
 Where the whole charge of " removing and disposing of property, and 
 departing from the State, with intent to defraud creditors,'' rested upon 
 the fact that the defendant offered to sell deponent goods for less than 
 to any one else, and requested him to keep it a secret, it was held in- 
 sufficient to procure an attachment. Frank v. Levie, 5 Robt. 599. 
 
 The facts that a debtor is insolvent; that he has turned over to two 
 creditors portions of his goods amounting to less than one-half of their 
 respective debts; that he refuses to turn over any goods to the plain- 
 tiffs or to pay the amount due to them; that he is selling off his stock 
 in trade and not likely to continue his business, do not furnish sufficient 
 evidence to authorize a justice of the peace to issue a warrant of attach- 
 ment against him, on the ground that he has disposed or is about to 
 dispose of his property with intent to defraud his creditors. Horton v. 
 Funchcr, 14 Hun, 172.
 
 § 75. Attachment. 191 
 
 Allegations in affidavits that defendant was, to deponent's knowledge, 
 about to remove her property from the United States with intent to, 
 defraud creditors; that she had threatened to him to sell all her prop- 
 erty and " skip out " if the claims were pressed ; that she had informed 
 him that she would pay no debt whatever; with proof that she had 
 advertised her business for sale as she was going to Europe, and would 
 sell it and her wares at one-fourth their value, — Held sufficient to 
 support an attachment. Fox v. Mays, 40 App. Div. 1, Gl N. Y. Supp. 
 295. 
 
 Threats. — Defendant, on being informed, after his refusal to pay a 
 note, that he would be sued, threatened, if he was sued, " to turn over 
 all his property, and that the plaintiff would not get a cent," there is 
 good ground for granting an attachment. Livermore v. Rhodes, 27 
 How. Pr. 506; s. c, 3 Robt. 626; Gasherie v. Apple, 14 Abb. Pr. 04. 
 
 When the threat is " to make an assignment " simply, without any 
 evidence to show fraudulent intent, an attachment will not issue. 
 Dickerson v. Bcnham, 20 How. Pr. 343, affg. s. c, 19 How. Pr. 410; 
 10 Abb. Pr. 390; Wilson v. Britton, 26 Barb. 562; s. c, 6 Abb. Pr. 
 97, revg. s. c, 6 Abb. Pr. 33. 
 
 § 75. Contents of warrant. — The warrant must be granted 
 by the court at the time when the summons is issued, and 
 must be issued by the clerk of the court in the district in 
 which the action is brought, and it must be indorsed upon 
 or annexed to the summons. It must be subscribed by the 
 clerk, and must briefly recite the ground of the attachment. 
 It must require the marshal, to whom the summons is de- 
 livered, to attach on or before a day specified therein, which 
 must be at least six days before the return of the summons, 
 and safely to keep, as much of the defendant's personal 
 property, within the city of New York, as will satisfy the 
 plaintiff's demand, with the costs and expenses and to make 
 return of his proceedings thereon to the court, at the time 
 when the summons is returnable. The amount of the 
 plaintiff's demand must be specified in the warrant as stated 
 in the affidavit. Nothing in this section shall be construed 
 to prevent a valid warrant of attachment issuing in a proper 
 case against a non-resident of the city of New York. 
 
 Notes to section 75. 
 
 This section is the same as section 1318 of the Consolidation Act 
 (Laws 18S2, chap. 410), with the exception that from the words
 
 ]92 Attachment. §76. 
 
 '*' Nothing in this section " clown to the end thereof is new. This addi- 
 tion was necessitated bj the eases of Rosenthal v. Grouse, 12 Daly, 
 529; reported also in 1 How. X. S. 447, and 7 Civ. Code Rep. 145, and 
 Sullivan v. Presdee, 9 Daly, 5.52, where it was held, that this court 
 did not have jurisdiction against a nonresident defendant, by reason 
 of the short summons, which allowed a shorter period than six day; 
 in the return day of a summons in an action against a nonresident. 
 The return day of six days in attachment cases caused the court in 
 the cases above cited, because of the inconsistency of these " return 
 days," to so decide, and it was for the purpose of removing all doubt 
 on this troublesome and mixed question that the Legislature in this act 
 omitted " Short summonses," and added the amendment herein referred 
 to, as we say in our notes, to section 56 of this act, in referring to this 
 same case, so we repeat here an account of the cases omissus in the 
 law. This case of Rosenthal v. Grouse, supra, is well worth the atten- 
 tion of the student and of the practitioner to show how " fearfully and 
 wonderfully laws are sometimes enacted." See also our notes in our 
 Fourth Edition, page 189, etc., under section 1316 of the Consolidation 
 Act, which notes were also contained in our Third Edition, published 
 in 1894, but strange to say, the Legislature did not remedy the defect 
 until the passage of the present act. 
 
 Amendment. — Warrant may be amended. King v. King, 68 App. Div. 
 189, 74 X. Y. Supp. (108 St.- Rep.) 119. 
 
 Amount. — ■ The amount of the plaintiff's demand must be specified in 
 the warrant, as stated in the affidavit, and it must not be for a sum ex- 
 ceeding the justice's jurisdiction. Mattison v. Bancus, Hill & D. Supp. 
 521. 
 
 Nonresident. — See notes to § 74, subd. 2. 
 
 § 76. Undertaking. — Before granting the warrant, the 
 court must require a written undertaking to the defendant, 
 on the part of the plaintiff, with one or more sureties, ap- 
 proved by the court, to the effect that, if the defendant re- 
 covers judgment, or the warrant of attachment is vacated, 
 the plaintiff will pay all costs which may be awarded to the 
 defendant, and all damages which he may sustain by reason 
 of the attachment, not exceeding the sum specified in the 
 undertaking, which must be at least twice the amount of 
 the plaintiff's demand, as stated in the warrant, and in no 
 case less than two hundred dollars, and that if the plaintiff 
 recovers judgment, he will pay to the defendant all money 
 received by him from property taken by virtue of the war-
 
 § 77. Attachment. 193 
 
 rant of attachment, or upon any bond given therefor, over 
 and above the amount of the judgment and interest there- 
 upon. 
 
 Notes to section 76. 
 
 This section is substantially the same as section 1319 of the Con- 
 solidation Act (Laws 1882, chap. 410), except as to the amount of 
 the undertaking, which is similar to section 2908 of the Code of Civil 
 Procedure, appertaining to justices' courts. Section 1319 of the Con- 
 solidation Act is taken from sections 2908 and 3219 of the Code of Civil 
 Procedure " Requisites of certain undertakings," combined. 
 
 Amendment. — A justice of this court has power to allow an amend- 
 ment of a defective undertaking on attachment. Finn v. Mehrbach, 30 
 Civ. Proc. Rep. 242, 65 N. Y. Supp. 250. 
 
 Amendment of undertaking can only be had. with consent of the 
 sureties. Langley v. Warren, 1 N. Y. 606; s. c, 3 How. Pr. 363, 1 
 Code Rep. Ill; Wilson v. Allen, 3 How. Pr. 369. Consult however 
 Wood v. Kelly, 2 Hilt. 334; Irwin v. Muir, 13 How. Pr. 409; s. c, 4 
 Abb. Pr. 133. See Robinson v. Moran, 23 Week. Dig. 326. 
 
 Amount of liability omitted. — An attachment in this court is not 
 invalidated by the fact that the undertaking stated no maximum amount 
 of liability, but left the amount in blank, as there is no provision of 
 law forbidding sureties from binding themselves in an unlimited, 
 amount. Tischler v. Fishman, 34 Misc. Rep. 172. 
 
 Exception to, and justification of, sureties. — By section 70 of this act 
 sections 106 to 110 and sections 127 and 128, relating to undertakings, 
 sureties, and justifications, are made applicable. 
 
 Mistakes, omissions, defects, and irregularities, and general rules re- 
 specting affidavits, bonds, and undertakings. — Code of Civil Procedure, 
 sections 728, 729, 730, and 810 to 816, relating to affidavits and under- 
 takings, apply to this court by section 3347, subdivision 6 of said Code, 
 making them applicable to all courts. 
 
 § 77. How warrant to be executed. — The marshal to whom 
 the warrant of attachment is delivered must execute it at 
 least six days before the return day of the summons, by 
 levying upon so much of the property of the defendant here- 
 inafter mentioned, as will satisfy the plaintiff's demand with 
 costs and expenses and must safely keep the same to be 
 disposed of as prescribed in this title and must immediately 
 make an inventory thereof stating therein the estimated 
 value of each article or item. Such levy can be made on 
 the following property : 
 13
 
 194 Attachment. § 78. 
 
 1. Goods and chattels of the defendant found in the city 
 of New York not exempt from levy and sale by virtue of 
 an execution including money and bank notes. 
 
 2. The rights or shares which the defendant has in the 
 stock of an association or corporation having a place of busi- 
 ness in the city of New York, together with the interest 
 and profits thereon, and the marshal's certificate cf the 
 sale thereof entitles the purchaser to the same rights and 
 privileges, with respect thereto, which the defendant had, 
 when the}* were so attached. 
 
 3. Causes of action arising upon contract, including bonds, 
 promissory notes, or other instruments for the payment of 
 money only, negotiable or otherwise, whether past due, or 
 yet to become due, executed by a corporation, or by a pri- 
 vate person, either within or without the state, which belong 
 to the defendant, and are found within the city, and the 
 levy of the attachment thereupon is deemed a levy upon, 
 and a seizure and attachment of, the debt represented 
 thereby. 
 
 Notes to section 77. 
 
 This section is taken from section 1320 of the Consolidation Act 
 (Laws 1882, chap. 410). It was formerly the same as section 2909 of 
 the Code of Civil Procedure. 
 
 Exempted property. — The exemption of articles from execution 
 granted by Code of Civil Procedure, section 1390, is absolute. In the 
 case of the further articles exempted 1 by section 1391, " necessary house- 
 hold furniture, working tools and team, etc., not exceeding in value 
 $250," the exemption is limited and indefinite and must be asserted. 
 And if an officer levy upon the latter class of property under section 
 2909, Code of Civil Procedure, the debtor must claim the exemption 
 and notify the officer thereof before he can maintain against such officer 
 an action either for conversion or replevin. Wilcox v. Howe, 39 N. Y. 
 St. Rep. 303, 12 N. Y. Supp. 783, 59 Hun, 270, 20 Civ. Proc. Rep. 214. 
 
 Where the warrant may be served or executed. — Section 9 of this act 
 authorizes process to be served or executed anywhere in the greater 
 " City of New York," which includes four counties and five boroughs. 
 
 § 78. Attachment, how levied. — A levy under a warrant 
 of attachment upon personal property capable of manual 
 delivery, including a bond, a promissory note, or other in- 
 strument for the payment of money, must be made by taking
 
 § 78. Attachment. 195 
 
 the same into the marshal's actual custody. He must there- 
 upon, without delay, deliver to the person from whose pos- 
 session the property is taken, if any, a copy of the warrant, 
 and of the affidavits upon which it was granted. Upon other 
 personal property, it must be made by leaving a certified 
 copy of the warrant and a notice showing the property at- 
 tached, with the person holding the same; or if it consists 
 of a demand, other than as specified in this section with the 
 person against whom it exists or, if it consists of rights or 
 shares in the stock of an association or corporation, or inter- 
 ests or profits thereon, with the president, or other head 
 of the association or corporation, or the secretary, cashier, 
 or managing agent thereof. 
 
 Notes to section 78. 
 
 This section is taken from section 649 of the Code of Civil Procedure. 
 
 Incapable of manual delivery. — The proper course of proceeding in 
 attaching property incapable of manual delivery, stated. Mechanics 
 & Traders' Bank of Jersey City v. Dakin, 33 How. Pr. 310. 
 
 To make the levy of an attachment upon property incapable of man- 
 ual delivery effectual, it is not necessary that the notice " showing the 
 property levied on," required in such case by section 235 of the Code to 
 be served with the certified copy of the warrant of attachment, should 
 specify particularly the property or debts supposed to be in the posses- 
 sion of or owned by the individual served. A general notice by the 
 sheriff that he attaches all property, debts, etc., belonging or owing to 
 the defendant in the attachment suit, in the possession or under the 
 control of the individual served, is sufficient. O'Brien v. Mechanics & 
 Traders' Fire Ins. Co., 56 N. Y. 52; s. c, 15 Abb. Pr. N. S. 222. And 
 see People v. St. Nicholas Bank Co., 44 App. Div. 316, 60 N. Y. Supp. 
 719. 
 
 Not sufficient property. — There is no abuse of process where the prop- 
 erty attached is not sufficient to satisfy the execution. Reily v. Skid- 
 more, 6 N. Y. Supp. 107. 
 
 Second attachment. — Where property was seized and removed by 
 virtue of an attachment, the plaintiff, having been nonsuited on the 
 trial, immediately sued out another attachment, upon which the officer 
 who served the first seized the same property in his own possession, 
 on the second attachment, and afterward sold it on the execution in 
 that suit. Held, that defendants were entitled to show the appropria- 
 tion of the property on the process in the second attachment suit in 
 reduction of damages. Earl v. Spooner, 3 Den. 246. And see Bennett
 
 196 Attachment. §§ 79, 80. 
 
 v. Brown, 31 Barb. 158: affd., 20 N. Y. 99. See also Still Stove Works 
 V. Scott, 62 App. Div. 560, 71 N. Y. Supp. 181. 
 
 § 79. Certificate of defendant's interest to be furnished — 
 Upon the application of a marshal, holding a warrant of at- 
 tachment, the president or other head of an association or 
 corporation, or the secretary, cashier, or managing agent 
 thereof, or a debtor of the defendant, or a person holding 
 property, including a bond, promissory note, or other in- 
 strument for the payment of money, belonging to the de- 
 fendant, must furnish to the marshal a certificate, under 
 his hand, specifying the rights or number of shares of the 
 defendant, in the stock of the association or corporation, 
 with all dividends declared, or encumbrances thereon, or 
 the amount, nature and description of the property, held 
 for the benefit of the defendant, or of the defendant's in- 
 terest in property so held, or of the debt or demand owing 
 to the defendant, as the case requires. 
 
 Notes to section 79. 
 
 This section is taken from section 650 of the Code of Civil Procedure. 
 
 Effect of certificate; mistake. — Party giving certificate is not estopped 
 from showing, in an action brought against him on the faith of such 
 statement, that he was honestly mistaken in making it. Almy v. 
 Thurber, 99 N. Y. 407. 
 
 § 80. Person refusing certificate may be examined. — If a 
 person, to whom application is made, and* prescribed, in the 
 last section, refuses to give such a certificate; or if it is 
 made to appear by affidavit, to the satisfaction of the court, 
 that there is reason to suspect that a certificate given by him 
 is untrue, or that it fails fully to set forth the facts, re- 
 quired to be shown thereby, the court may make an order, 
 directing him to attend, at a specified time, at the court in 
 the district in which the action is brought, and submit to 
 an examination, under oath, concerning the same. 
 
 * So in the original ; should be " as."
 
 §§ 81, 82. Attachment. 197 
 
 Notes to section 80. 
 
 This section is substantially the same as section 651 of the Code of 
 Civil Procedure, with the " referee " part thereof omitted, as this court 
 has no power to order a reference. 
 
 Effect. — The proceeding provided for in this section is for the benefit 
 of the creditor and sheriff, but they are not bound to resort to it, nor 
 are they bound by the certificate if furnished. Refusal to give it does 
 not suspend action on the attachment, nor prevent a levy until an 
 examination is had. O'Brien v. Mechanics & Traders' Fire Ins. Co., 
 56 N. Y. 52. 
 
 §81. Marshal may maintain action. — The marshal must, 
 subject to the direction of the court, collect and receive all 
 debts, effects, and things in action attached by him. He 
 may maintain any action or special proceeding in his own 
 name or in the name of the defendant, which is necessary, 
 for that purpose, or to reduce to his actual possession an 
 article of personal property, capable of manual delivery, 
 but of which he has been unable to obtain possession, and 
 he may discontinue such an action or special proceeding, at 
 such time and on such terms, as the court directs. 
 
 Note to section 81. 
 
 This section is taken from section 655, subdivision 1 of the Code of 
 Civil Procedure. 
 
 § 82. When attachment discharged, et cetera, property to be 
 restored to defendant. — Where a warrant of attachment or a 
 writ of replevin is vacated, or annulled, or an attachment is 
 discharged, upon the application of the defendant, the mar- 
 shal must, except in a case where it is otherwise expressly 
 prescribed by law. upon an order made by the court to that 
 effect, deliver over to the defendant, or to the person entitled 
 thereto, upon reasonable demand, and upon payment of all 
 costs, charges and expenses, legally chargeable by the mar- 
 shal, all the attached personal property remaining in his 
 hands, or that portion thereof, as to which the attachment 
 is discharged; or the proceeds thereof, if it has been sold 
 
 by him. 
 
 Note to section 82. 
 
 This section is the same as section 709 of the Code of Civil Procedure.
 
 198 Attachment. §§83,84. 
 
 § 83. Service of summons and warrant on defendant The 
 
 marshal must, immediately after making inventory, and at 
 least six days before the return day of the summons, serve 
 the summons, together with the warrant of attachment and 
 inventory, upon the defendant, by delivering to him person- 
 ally a copy of each, if he can, with reasonable diligence, be 
 found within the city, or if he cannot be so found, by leav- 
 ing a copy of each, certified by the marshal at the last placo 
 of residence of the defendant in the city, with a person of 
 suitable age and discretion, or if such person cannot be found 
 there, by posting them on the outer door, and also deposit- 
 ing another copy of each in the post-office, inclosed in a 
 sealed post-paid wrapper, directed to the defendant at his 
 residence; or if the defendant has no place of residence in 
 the city, by delivering them to the person in whose posses- 
 sion the property attached is found. 
 
 Note to section 83. 
 
 This section is substantially section 1321 of the Consolidation Act 
 (Laws 1882, chap. 410), and is the same as section 2910 of the Code 
 of Civil Procedure, relating to justices' courts. Section 55 provides 
 that an order of arrest, warrant of attachment, or requisition to re- 
 plevy shall be served and executed by a marshal. 
 
 §84. Undertaking by defendant — The defendant, or his 
 attorney, or agent in his behalf, may, at any time before 
 judgment is rendered in the action, execute and deliver to 
 the marshal an undertaking to the plaintiff in a sum speci- 
 fied therein, at least twice the value of the property at- 
 tached, as stated in the inventory, with one or more sure- 
 ties, approved by the marshal or by a justice of the court, 
 and to the effect, that if the judgment is rendered against 
 the defendant and an execution is issued thereupon, within 
 six months after the giving of the undertaking, the prop- 
 erty attached shall be produced to satisfy the execution. 
 Thereupon the marshal must deliver the property to the 
 defendant.
 
 § 85. Attachment. 109 
 
 Notes to section 84. 
 
 This section is the same as section 1322 cf the Consolidation Act (Laws 
 1882, chap. 410), and is section 2911 of the Code of Civil Procedure, 
 relating to justices' courts. 
 
 Undertaking to discharge attachment. — As to effect of undertaking 
 to discharge attachment, see Cockroft v. Clafflin, 64 Barb. 464. 
 
 The sheriff must retain the property attached until the sureties 
 justify, when bond is given by defendant claiming redelivery to him. 
 Moses v. Watcrbury Button Co., 15 Abb. Pr. N. S. 205. 
 
 One undertaking cannot be given to discharge two attachments, issued 
 in different actions. Walton v. Daly, 17 Hun, 601. 
 
 § 85. Claim by third person; bond and delivery thereupon. — 
 If a person, not a party to the action, claims any property 
 attached, which is not reclaimed by the defendant, as pre- 
 scribed in the last section, he may, at any time after the 
 seizure and before execution is issued upon a judgment ren- 
 dered in the action, execute and file with the clerk a bond 
 to the plaintiff, with one or more sureties approved by the 
 marshal or by a justice, in a penalty at least twice the value 
 of the property claimed, and conditioned that, in an action 
 upon the bond to be commenced within three months there- 
 after, the claimant will establish that he was the general 
 owner of the property claimed at the time of the seizure; or 
 if he fails so to do, that he will pay to the plaintiff the value 
 thereof, with interest. The marshal must thereupon de- 
 liver the property claimed to the claimant. 
 
 Notes to section 85. 
 
 This section is substantially the same as section 1323 of the Con- 
 solidation Act (Laws 1882, chap. 410), and the same as section 2912 of 
 the Code of Civil Procedure. 
 
 Bond; when insufficient. — These provisions are for the benefit of the 
 real owner, as well as of that of the plaintiff, and a bond for less than 
 double the value of the property, though it be more than double the 
 amount of the debt for which the attachment was issued, is insufficient. 
 Kamena v. Warren, 6 Duer, 698; s. c, 6 Abb. 193. 
 
 Undertaking. — A third party claiming the property attached, and 
 offering an undertaking under section 1323 of the Consolidation Act, 
 gains thereby simply the right to the possession of the property pend- 
 ing the determination of his title thereto, in an action to be brought 
 upon the undertaking, which does not stay proceedings in the action
 
 200 Attachment. §§ 86, ST. 
 
 in which the attachment issued until the determination of the question 
 of title. Finn v. Mchrbach, 30 Civ. Proc. Rep. 242, 65 N. Y. Supp. 250. 
 
 § 86. Judgment upon bond. — A judgment for the plaintiff, 
 in an action upon a bond, given as prescribed in the last 
 section, must award to him the value of the property seized 
 and delivered to the claimant, with interest thereupon from 
 the time of the delivery. If the amount so recovered ex- 
 ceeds the amount which the plaintiff recovers in the action 
 in which the warrant of attachment was issued, he is liable 
 to the defendant in that action for the excess. 
 
 Note to section 86. 
 
 This section is the same as section 1324 of the Consolidation Act 
 (Laws 1882, chap. 410), and the same as section 2913 of the Code of 
 Civil Procedure, relating to justices' courts. 
 
 § 87. Action upon undertaking where warrant is vacated. — 
 If the warrant of attachment is vacated or annulled, the 
 defendant may maintain an action, upon the bond and under- 
 taking specified in the last two sections, in his own name, 
 in the same manner and with the like effect as the plaintiff 
 might have done if the warrant had remained in full force. 
 
 Notes to section 87. 
 
 This section is the same as section 1325 of the Consolidation Act 
 (Laws 1882, chap. 410), and the same as section 2914 of the Code of 
 Civil Procedure, relating to justices' courts. 
 
 Annulled. — As to the meaning of this word in this section, see § 3343, 
 subd. 12, Code Civ. Proc. 
 
 Expenses and counsel fees. — Expenses and counsel fees, incurred by 
 a party in preparing for and trying an attachment suit, are recoverable 
 under the bond given upon the issuing of the attachment. Northrup v. 
 Garrett, 17 Hun, 497. 
 
 Where a motion to vacate an attachment, although at first success- 
 ful, is denied on appeal, but not apparently on the merits, and the 
 action is thereafter tried and results in a judgment dismissing the 
 complaint, the surety upon the undertaking given to secure the attach- 
 ment is liable for the costs and expenses of the proceedings to vacate 
 the attachment as well as for the costs and expenses of defending the
 
 § 88. Attachment. 201 
 
 action. Tyng v. American Surety Co., 69 App. Div. 137. And see 
 s. c, 48 App. Div. 240, 62 N. Y. Supp. 843. 
 
 Objections to sufficiency of the bond, or the manner of its execution 
 must be made on the trial. They cannot be raised on appeal. North- 
 rup v. Garrett, 17 Hun, 497. 
 
 See also § 1, subd. 3, and notes. 
 
 § 88. Return by marshal attaching. — The marshal execut- 
 ing the warrant of attachment must, at the time when and 
 the place where it is returnable, make a return thereto, 
 under his hand, stating all his proceedings thereupon. He 
 must deliver to the clerk, with the return, each bond or 
 undertaking delivered to him, pursuant to any of the fore- 
 going provisions of this article, and a copy certified by him, 
 of the inventory of the property attached. The return 
 must state the manner in which the warrant and inventory 
 were served, and, if they were served otherwise than by 
 delivering a copy thereof to the defendant personally, the 
 reason therefor, and the name of the person to whom the 
 copy was delivered, unless his name is unknown to the mar- 
 shal; in which case the return must describe him so as to 
 identify him, as nearly as may be. 
 
 Notes to section 88. 
 
 This section is the same as section 1326 of the Consolidation Act 
 (Laws 1882, chap. 410), and the same as section 2915 of the Code of 
 Civil Procedure, relative to justices' courts. 
 
 Insufficient return. — Where the officer in his return to an attachment 
 stated that " because the defendant could not be found in the city and 
 county of New York, I left a copy of the within attachment and of said 
 inventory, duly certified by me, at the last place of residence of the 
 said defendant," — Held defective. The place of residence should have 
 been stated specifically, or at least whether it was within the county 
 of New York. Egbert v. Watson, 21 How. 429. And see Roscnfield v. 
 Howard, 15 Barb. 546. 
 
 A return of a levy, without stating that a copy of the attachment was 
 served by leaving a copy at the dwelling-house or other place of abode, 
 of the defendant is not sufficient. Willard v. Sperry, 16 Johns. 121. 
 
 Sufficient return. — A return of a levy on property without saying " of 
 the defendant," or a return of a delivery of a copy, without saying " a 
 certified copy," — Held sufficient. Johnson v. Moss, 20 Wend. 145 ; 
 Van Kirk v. Wilds, 11 Barb. 520, and other cases. See Willard v.
 
 202 Attachment. § 89. 
 
 Sperry, 16 Johns. 121; Johnson v. Moss, 20 Wend. 145; Yun Kirk v. 
 Wilds, 11 Barb. 520. 4 X. Y. 254. 30 How. 326. 
 
 § 89. Application to vacate or modify warrant of attachment. 
 — A defendant, whose property has been attached, may, 
 upon the return of the summons, or before such return on 
 written notice of at least twenty-four hours to the plaintiff 
 or his attorney, apply to the court out of which the warrant 
 of attachment issued to vacate or modify it, or to increase 
 the plaintiff's security. Such an application may be founded 
 upon the papers upon which the warrant was granted; or 
 upon proof, by affidavit, on the part of the defendant, or 
 upon both. If it is founded upon proof on the part of the 
 defendant, it may be opposed by new proof, by affidavit, 
 upon the part of the plaintiff, tending to sustain any ground 
 for the attachment, recited in the warrant, but no other. 
 The court may, upon the return of the summons, or at any 
 other time to which the action is adjourned, vacate the war- 
 rant of attachment upon, his own motion, if he deems the 
 papers upon which it was granted insufficient to authorize it. 
 
 Notes to section 89. 
 
 This section is substantially the same as section 1327 of the Con- 
 solidation Act (Laws 1882, chap. 410), and of section 2916 of the Code 
 of Civil Procedure, relating to justices' courts, with the exception 
 that it permits the application to be also made before the return day 
 named in the summons. See the next section (90) and § 2917, Code 
 Civ. Proc. 
 
 See also notes to § 68, citing authorities on motion to vacate an order 
 of arrest which apply as well to vacating a warrant of attachment, and 
 notes to § 74, subd. 1. 
 
 Additional affidavits. — Additional affidavits will be allowed when, 
 since the original application was made, it appears there has been a 
 change in the condition of the parties, such as a general assignment by 
 the defendant for the benefit of creditors. Dickerson v. Benhani, 20 
 How. Pr. 343, affg. s. c, 19 How. Pr. 410; s. c, 12 Abb. Pr. 158, 10 
 Abb. Pr. 390. 
 
 Where the defendant moves to vacate on affidavits, the plaintiff may 
 use additional affidavits, but only to contradict, answer, or explain those 
 of the defendants, and not to remedy defects in the original papers. 
 Yates v. North, 44 N. Y. 71.
 
 §89. Attachment. 203 
 
 Where a motion to set aside an attachment, issued upon an affidavit 
 only, is made upon the affidavit upon which it was granted, and also 
 upon the complaint, the plaintiff is entitled, upon the hearing, to read 
 additional affidavits in support of the attachment. Ives v. Holden, 14 
 Hun. 402. 
 
 When the motion is founded solely on the affidavits upon which the 
 attachment was granted, no additional affidavits in support of the 
 original application can be allowed. ///// v. Bond, 22 How. Pr. 272. 
 
 The warrant cannot be sustained by the submission, on the motion 
 to vacate, of additional affidavits which might have supported the 
 attachment, on other grounds than that on which it was granted, al- 
 though in support of the motion, affidavits other than those on which 
 the warrant issued are presented by the moving party. Acker, etc. v. 
 Eaynisch, 25 Misc. Rep. 415, 54 X. Y. Supp. 937; affd. in 2b Misc. Rep. 
 836. 
 
 Affidavit, insufficiency of (see also notes to § 74, subd. 1). — It must 
 not be upon information and belief, without giving the sources and 
 grounds thereof. The facts to authorize the attachment must appear 
 by affidavit. Hill v. Bond, 22 How. Pr. 272; O'Reilly v. Fred, 37 How. 
 Pr. 272; Brewer v. Tucker, 13 Abb. 76; Donnelly v. Corbett, 7 N. Y. 
 500 ; Greene v. Gonzales, 2 Daly, 4P2. 
 
 Upon a motion to vacate an attachment, the question is not one of 
 jurisdiction, but whether, upon the facts presented, the attachment ought 
 to issue; and this is so when the motion is founded upon the alleged 
 insufficiency of the affidavits upon which the order for attachment was 
 granted. Allen v. Meyer, 73 X. Y. 1. 
 
 Cause of action. — The affidavit on which an attachment is granted 
 must show that a cause of action exists in favor of plaintiri. It must 
 state the facts out of which the cause of action arose. A mere recital 
 of facts without a direct statement of their existence is insufficient. 
 Man ton v. Poole, 4 Hun, 638. 
 
 Where the affidavit omits to state the ground 1 of action, the omission 
 affects the jurisdiction, and cannot be remedied by amendment. The 
 attachment must be set aside. Zeregal v. Benoist, 33 How. Pr. 120. 
 
 To authorize an attachment it is not sufficient to state the amount of 
 plaintiffs claim, and the legal conclusion that he has a just cause of 
 action : the grounds or the subject-matter of the claim must be set 
 forth. The omission of this statement cannot be supplied on a motion 
 to discharge the attachment. Richter v. Wise, 6 N. Y. Super. 70. 
 
 A warrant of attachment cannot be set aside on motion, where the 
 facts stated in the affidavit on which the warrant was granted have a 
 legal tendency to show that the statutory ground for the attachment 
 exi*ts, and are such as fairly called for the exercise of the judgment of 
 the magistrate who granted the warrant, as to their sufficiency. Allen 
 v. Meyer, 7 Daly. 229.
 
 204 Attachment. §89. 
 
 Complaint. — An order vacating an attachment on the merits of the 
 action will be reversed, unless the complaint is so defective that plain- 
 tiff cannot recover. Goodyear v. Commercial Fire Ins. Co., 59 App. 
 Div. 611. See also Fox v. Mays, 46 App. Div. 1, 61 N. Y. Supp. 295. 
 
 Copy papers served. — The justice may dismiss the action and vacate 
 an attachment on the return day on motion of the defendant, and may 
 do so upon the copies served where the original summons and attach- 
 ment have not been returned. Risk v. Uffalman, 7 Misc. Rep. 133. 
 
 Counter-affidavits. — On a motion to vacate an attachment founded 
 upon affidavits on the part of the defendant, it is competent for the 
 plaintiff to read counter-affidavits in opposition. Hill v. Bond, 22 How. 
 Pr. 272. 
 
 Attachment, erroneous; no ground to vacate proper judgment. — Under 
 the provisions of the Code of Civil Procedure, error of the justice in 
 refusing to set aside a warrant of attachment issued against the prop- 
 erty of a defendant is not ground for reversal of a judgment against 
 the defendant, subsequently rendered in the action, upon an appeal 
 from such judgment to this court, there being no ground to reverse the 
 judgment, however erroneous it was to refuse to vacate the attach- 
 ment. Rosenthal v. Grouse, 12 Daly, 529; s. c, 1 How. N. S. 447, 7 Civ. 
 Proc. Rep. 135; ttchnauffer v. Catterbury, 32 N. Y. St. Rep. 694; s. c, 
 10 N. Y. Supp. 543; Bump v. Daheny, 36 N. Y. St. Rep. 114. 
 
 Where an attachment is issued against the defendant's property, 
 error in issuing the attachment, or in refusing to set it aside on motion, 
 is not ground for reversal of a judgment for plaintiff for the amount 
 sued for, with interest and costs, not including the marshal's fees on 
 the attachment, Hchnauffer v. Catterbury, 16 Daly, 353. 
 
 Fictitious name. — This court has no authority, and never had, to 
 grant attachments against persons by fictitious names. McCabe v. Doe, 
 2 E. D. Smith, 64; Gardner v. McKraft, Daily Reg., Feb. 23, i877; 
 Davenport v. Doady, 3 Abb. Pr. 409; Solinger v. Patrick, 7 Daly, 408. 
 These attachments were therefore absolutely void, together with all 
 proceedings under them, and as this appeared upon the face of them, 
 they afforded no protection to the marshal. Patrick v. Solinger, 9 Daly, 
 151. 
 
 Intent. — Where the allegations in the affidavit are as consistent with 
 honesty of intent on the part of defendant as with a dishonest one, the 
 attachment is properly vacated. Bernhard v. Cohen, 27 Misc. Rep. 363. 
 
 Irregularities. — An order to show cause why an attachment should 
 not be vacated should specify the irregularities complained of. Wee- 
 hawken Wharf Co. v. Knickerbocker Coal Co., 22 Misc. Rep. 559, 49 
 N. Y. Supp. 1001. But see Andrews v. Scofield, 27 App. Div. 90, 50 N. 
 Y. Supp. 132. 
 
 Merits of action. — On motion to set aside the attachment, court will 
 not try the merits of the action. Bank of Commerce v. Rutland, etc.,
 
 § 89. Attachment. 205 
 
 R. R. Co., 10 How. 1, 6; Romeo v. Garofalo, 25 App. Div. 191, 49 
 N. Y. Supp. 114; Peck v. Brooks, 31 Misc. Rep. 48, 64 N. Y. Supp. 546; 
 Thorn v. Alvord, 32 Misc. Rep. 456. 
 
 Mistake in the warrant as to the nature of the cause of action is not 
 fatal to the validity of the attachment though it must state the ground 
 of the attachment. Fox v. Mays, 46 App. Div. 1, 61 N. Y. Supp. 295. 
 
 Motion, when it may be made. — It is not necessary that a motion 
 to vacate an attachment should be made before judgment; and an 
 order of court granting a motion to open a default, but allowing the 
 judgment entered to stand as security, does not preclude the defendant 
 from afterward moving to vacate judgment. So held, where the objec- 
 tion to the attachment went to the jurisdiction. Sweezy v. Bartlett, 3 
 Abb. Pr. N. S. 444. 
 
 Nonresident. — It is good ground for vacating an attachment, issued 
 against an alleged nonresident, and absconding defendant, that his ab- 
 sence from his place of abode was open and notorious; that he made no 
 efforts to conceal the same; that his conduct was not designed to place 
 any one on a false scent, or to evade service of process, and that he 
 omitted nothing which he was legally bound to do, to enable the plain- 
 tiff to find him. The mere failure of a plaintiff to learn the where- 
 abouts of a defendant affords no evidence of culpable conduct on his 
 part. Sweezy v. Bartlett, 3 Abb. Pr. N. S. 444. 
 
 Original papers. — On a motion to vacate on the original papers, all 
 the allegations therein, as well as fair inferences to be deduced there- 
 from, are to be taken as true. Reedy Elevator Co. v. American Grocery 
 Co., 24 Misc. Rep. 678, 53 N. Y. Supp. 989. 
 
 Upon a motion to vacate an attachment on the affidavits on which it 
 was granted, plaintiff, who obtained it, is entitled to the benefit of all 
 legitimate inferences from the facts shown. Stewart v. Lyman, 62 App. 
 Div. 182. 
 
 Pleadings, if not before the court when the attachment was granted, 
 are not to be regarded by the court on the motion to vacate in deter- 
 mining the sufficiency of the affidavit. Fox v. Mays, 46 App. Div. 1, 
 61 N. Y. 295. See also Goodyear v. Commercial Ins. Co., 59 App. Div. 
 611. 
 
 Second application. — Where an attachment has been vacated by the 
 court, after opposition ana argument on the merits of the application, 
 another application for the attachment on substantially tne same facts, 
 whether before the same or another court, will not be entertained. 
 The defendant is not to be continually vexed by the same applica- 
 tion; nor are the same or different tribunals to hear and decide upon 
 the same matters more than once. Schlemmer v. Myerstein, 19 How. 
 Pr. 412. 
 
 Defendant, who has been defeated in his application to vacate an 
 attachment on the papers on which it was granted, may again move
 
 200 Attachment. ,, 90, 91. 
 
 upon affidavits without leave of the court. Hawkins v. Pakas, 41 App. 
 Div. 395. 
 
 Subsequent attaching creditors. — In the absence of fraud or collusion, 
 any irregularity in the issuing of an attachment, which is waived by 
 the debtor, cannot be taken advantage of by a subsequent attaching 
 creditor. Jacobs v. Hogan, 15 Hun, 197. 
 
 Summons. — An attachment will not be vacated because no summons 
 in the action accompanied the papers on which it was granted, and 
 they do not state that an action has been begun. Maury v. American 
 Motor Co., 25 Misc. Rep. 657. 
 
 § 90. Effect of vacating warrant. — Vacating the warrant 
 of attachment does not affect the jurisdiction of the court 
 to hear and determine the action, where the defendant has 
 appeared generally in the action; or whore the summons 
 was served personally upon him, or where judgment may be 
 taken against him, as being indebted jointly with another 
 defendant, who has been thus summoned or has thus ap- 
 peared. In every other case the justice who vacates a war- 
 rant of attachment against the property of a defendant 
 must dismiss the action as to him. 
 
 Notes to section 90. 
 
 This section is the same as section 1328 of the Consolidation Act 
 (Laws 1882, chap. 410), and the same as section 2917- of the Code 
 of Civil Procedure, relative to justices' courts. 
 
 Provisional remedy. — An attachment is usually a provisional remedy, 
 and an error of the justice in regard to such a remedy will not cause 
 the reversal of the judgment, if the action is properly decided on the 
 merits. Rosenthal v. Grouse, 12 Daly, 529; s. c, 1 How. N. S. 447, 
 7 Civ. Proc. Rep. 135; Bump v. Dehany, 36 N. Y. St. Rep. 114. 
 
 Jurisdiction depends upon the service of the summons and not upon 
 whether a provisional remedy is vacated or not. McNeary v. Chase, 
 30 Hun, 491. 
 
 § 91. Judgment where property has been attached. — Where 
 the defendant has not appeared, and the summons has not 
 been personally served upon him, and property of the de- 
 fendant has been duly attached by virtue of a warrant which 
 has not been vacated, the court must proceed to hear and 
 determine the action; but in an action subsequently brought, 
 the judgment is only presumptive evidence of the indebted-
 
 § 92. Attachment. 207 
 
 ness, and the defendant is not barred from any counter- 
 claim against the plaintiff. The execution, issued upon a 
 judgment so rendered, must require the marshal to satisfy 
 it out of the property so attached, without containing a 
 direction to satisfy it out of any other property. 
 
 Notes to section 91. 
 
 This section is the same as section 1329 of the Consolidation Act 
 (Laws 1882, chap. 410), and the same as section 2918 of the Code 
 of Civil Procedure, relative to justices' courts. See also § 271. 
 
 Personal service of process. — Under the act establishing regulations 
 for the port of New York (Laws 1857, chap. 071), this court cannot 
 acquire jurisdiction to render judgment against the master of a vessel 
 for a penalty imposed by the act merely by attachment of the vessel, 
 and without personal service of process on the master. The Board of 
 Comrs. of Pilots v. Dick, 5 Daly, 391. 
 
 § 92. Sections applicable as to undertaking', et cetera Sec- 
 tions one hundred and six to one hundred and ten of this 
 revision, inclusive, and sections one hundred and twenty- 
 seven and one hundred and twenty-eight, in so far as they 
 relate to undertaking, sureties and justification, apply to 
 proceedings under this title, and the exceptions to, and 
 examination of, sureties, whether on undertaking, or bail, 
 may be made and conducted by the adverse party, as pre- 
 scribed therein. 
 
 Notes to section 92. 
 
 This section is new. See also § 70. 
 
 Amendment of undertaking. — See notes to § 3 ("Removal"). 
 
 Mistakes, omissions, defects, and irregularities, and general rules re- 
 specting affidavits, bonds, and undertakings. — Code Civ. Proc, §§ 728, 
 729. 730, and 810 to 816, relating to affidavits and undertakings, apply 
 to this court by section 3347, subdivision 6, of said Code, making them 
 applicable to all courts. 
 
 Note. — There are no sections 93 or 94.
 
 208 Replevin. 
 
 ARTICLE ITL 
 
 Replevin. 
 Section 95. Replevin. 
 
 96. Affidavit and undertaking by plaintiff. 
 
 97. Affidavit therefor, before commencement of action. 
 
 98. Where several chattels are to be replevied. 
 
 99. Plaintiffs undertaking for replevin. 
 
 100. When agent, et cetera, may make affidavit for replevin 
 
 or return. 
 
 101. Requisition of justice. 
 
 102. How executed. 
 
 103. How executed if properly concealed, et cetera. 
 
 104. Marshal to keep in possession; when and how to deliver. 
 
 105. Return to requisition. 
 
 106. Defendant when to except to sureties, proceedings there- 
 
 upon. 
 
 107. Defendant may reclaim chattel; proceedings thereupon. 
 
 108. Qualifications of sureties. 
 
 109. Justification. 
 
 110. Allowance of undertaking. 
 
 111. When and to whom marshal to deliver chattel. 
 
 112. Penalty for wrong delivery by marshal. 
 
 113. Claim of title by third person: proceedings thereupon. 
 
 114. Action against a marshal on claim. 
 
 115. Indemnity to marshal against such action. 
 
 116. Answer of title in third person 
 
 117. Defendant may demand judgment for return of chattel. 
 
 118. For delivery of property. How money recovered by same 
 
 judgment may be collected. 
 
 119. Damages when chattel injured, et cetera, by defendant. 
 
 120. Judgment or verdict; what to state. 
 
 121. Judgment or verdict, et cetera, for part of several chat- 
 
 tels. 
 
 122. Damages, how ascertained on default. 
 
 123. Final judgment, et cetera. 
 
 124. Execution, contents thereof. 
 
 125. Marshal's power to take chattel. 
 
 126. Action on undertaking, when maintainable. 
 
 127. Marshal's return, evidence therein. 
 
 128. Injury, et cetera, no defence. 
 
 129. Proceeding where summons not personally served. 
 
 130. When action not affected by failure to replevy. 
 
 131. Judgment* of action with others. 
 
 * Should be "Joinder" (see § 131).
 
 § 95, Subd. 1. Replevin. 209 
 
 § 95. Action to recover a chattel. — An action to recover a 
 ■chattel, with or without damages, for the wrongful taking, 
 withholding, or detention thereof, may be brought in the 
 municipal court of the city of New York, except : 
 
 1. Where the chattel was taken by virtue of a warrant, 
 against the plaintiff, for the collection of a tax, assessment 
 or fine, issued in pursuance of a statute of the state, or of 
 the United States : unless the taking was, or the detention 
 is, unlawful, as specified in section ninety-seven of this act. 
 
 Notes to section 95. 
 
 This section is taken from section 1331 of the Consolidation Act 
 (Laws 1882, chap. 410), and sections 1219 and 1690 to 1692 of the Code 
 of Civil Procedure. These sections of the Code constitute the six sub- 
 divisions of this section instead of separate enactments, as contained 
 in said Code. 
 
 In the note to section 1331, on page 218 of the Fourth Edition of 
 this work, we said: " In his preliminary note to chapter XIV, title II, 
 'Actions Relating to Chattels,' under article I, 'Action to Recover a 
 Chattel,' Mr. Throop, one of the commissioners who revised the stat- 
 utes, states that ' Doubtless the profession will welcome the restoration 
 to the statute-book of the familiar words, " replevy " and " replevin," 
 after their banishment therefrom for more than a third of a century; ' 
 and yet, for the sake of accuracy, the entire chapter is devoted not to 
 ' replevin,' but to ' actions to recover and to foreclose a lien upon a 
 chattel.' And nowhere in the Code is the term ' replevin ' used until 
 chapter XIX, article V, is reached, which applies to ' justices' courts.' " 
 
 Article III of title III of this act is headed " Replevin," while section 
 95 is headed " Action to recover a chattel." Section 55 speaks of a 
 " Requisition to replevy." 
 
 The commission who framed the present act under Laws 1901, chap. 
 218, and reported the same to the Legislature under their note to 
 section 95, use the word " Replevin." It is not for us to reconcile 
 this apparent mixture. This procedure was known in England as the 
 " Writ of Replevin," and so brought over from the mocher country 
 to this country. For a history of the remedy by replevin in England 
 and in this country, the student will be both instructed and enlight- 
 ened by reading the case of Manning v. Keenan, 73 N. Y. 45. 
 
 As to " When the action lies " and " Questions of jurisdiction," see 
 § 1, subd. 9. 
 
 As to jury fees in an "Action to recover a chattel," where defendant 
 demands a jury of twelve men, see § 234. 
 
 Bailee and bailor; tender. — Where a bailee refuses to deliver the 
 goods to the bailor, on the ground that the latter is not entitled to 
 
 14
 
 210 Replevin. § 95, Subd. 2. 
 
 take them, averring an intention to contest his right in the courts, it 
 is not necessary for the bailor to tender the fees due for the storage 
 of the goods, before commencing an action for the recovery thereof. 
 Long Island Brewery Co. v. Fitzpatrick, 18 Hun, 389. 
 
 Where the plaintiff claims to recover on the ground that the prop- 
 erty was only leased, whereas the defendant claims as purchaser, the 
 plaintiff must not only tender before suit repayment of the money 
 received, but must keep his tender good by a deposit of the money, or 
 an offer at the trial to pay into court. Dodge v. Fearey, 19 Hun, 277. 
 
 Complaint. — The complaint in a claim and delivery action need not 
 be in any specific form; the only requirement in reference thereto is 
 the general one, that it shall contain a plain and concise statement 
 of the cause of action. Western R. R. Co. v. Bayne, 75 N. Y. 1. 
 
 As to what is sufficient complaint, see Banfield v. Haeger, 45 N. Y. 
 Super. (J. & S.) 428. 
 
 As to what is necessary to be shown to make out a case in a claim 
 and delivery action, see Hammond v. Hchultze, 45 N. Y. Super. (J. & 
 S.) 611. 
 
 In an action to recover a chattel, a failure to allege that the taking 
 was wrongful is not fatally defective, if the facts averred clearly show 
 this to be the case. Button v. Lusk, 19 Civ. Proc. Rep. 111. 
 
 The receipt of goods by means of a sale induced by fraud is tortious 
 taking, and in such case the complaint in replevin need not set out 
 the facts showing that their detention was wrongful. Cowing v. 
 Warner, 30 Misc. Rep. 593, affg. 29 Misc. Rep. 593, 62 N. Y. Supp. 
 797. 
 
 Detention after the trial is a new offense constituting a new cause of 
 action. Corn Exchange Bank v. Blye, 56 Hun, 403, 32 N. Y. St. 
 Rep. 78. 
 
 Reversal of judgment. — The title of the purchaser on execution is* 
 annulled and the owner entitled to recover his property back when the 
 judgment in the action in which the attachment issued has been re- 
 versed. Reinmiller v. Skidmore, 7 Lans. 161. 
 
 Sheriff. — This court has jurisdiction of actions against the sheriff 
 to recover chattels. Price v. Grant, 15 Daly, 436. 
 
 Taking the property from other than defendant. — A requisition in an 
 action for the claim and delivery of personal property only authorizes 
 the taking of the chattels specified from the defendant named in the 
 action or his agent; it is no protection when he takes them from an- 
 other, in an action of trespass brought by the latter. Otis v. Williams, 
 70 N. Y. 208. See also Bullis v. Montgomery, 50 N. Y. 352. 
 
 2. Where it was seized by virtue of an execution, or a 
 warrant of attachment, against the property of the plain-
 
 § 96. Replevin. 211 
 
 tiff, unless it was legally exempt from such seizure, or is 
 unlawfully detained, as specified in section ninety-seven of 
 this act. 
 
 Notes to section 95, subdivision 2. 
 
 Legal custody. — In a replevin proceeding the property is in legal cus- 
 tody as to strangers thereto, so that it cannot be reached by execution. 
 First Nat. Bank v. Dunn, 97 N. Y. 149, revg. 29 Hun, 529. 
 
 While property is in the hands of the sheriff, under a warrant of 
 replevin, it cannot be levied upon by virtue of an execution against 
 the defendant in the replevin action. Tramain v. Mortimer, 28 N. Y. 
 St. Rep. 548. 
 
 So, while property is in possession of the property clerk of the 
 police department by order of the magistrate pending a prosecution, 
 it is in the custody of the law, and the owner's right of possession 
 cannot be enforced while the circumstances justify a retention for 
 purposes of police justice. Simpson v. St. John, 93 N. Y. 363. 
 
 3. Where it was seized by virtue of an execution, or a 
 warrant of attachment, against the property of a person 
 other than the plaintiff, and at the time of the commence- 
 ment of the action the plaintiff had not the right to reduce 
 it into his possession. 
 
 4. Where a chattel is replevied in an action to recover 
 the same, and a final judgment awarding the possession 
 thereof to the defendant is rendered, a subsequent action 
 to recover the same chattel cannot be maintained by the 
 plaintiff, for the same cause of action. But the judgment 
 does not affect his right to maintain an action to recover 
 damages, for taking or detaining the same or any other 
 chattel, unless it was rendered against him upon the merits. 
 
 5. If plaintiff's title be by transfer, made since wrongful 
 taking, or during wrongful detention, no action can be 
 maintained unless the person from or through whom the 
 plaintiff derived title might have maintained the same, had 
 the transfer not been made. 
 
 §96. Affidavit and undertaking by plaintiff. — The plain- 
 tiff may, at the time the summons is issued, but not after- 
 wards, require the chattel to be replevied as prescribed in 
 this act. For that purpose he must deliver to the court, an
 
 212 Replevin. § 97. 
 
 affidavit and a written undertaking as herein prescribed, 
 which must be tiled with the clerk of the court in the dis- 
 trict in which the action is brought. 
 
 Notes to section 96. 
 
 This section is tak< n from section 1332 of the Consolidation Act 
 (Laws 1882. chap. 410), which is the same as section 2920 of the 
 Code of Civil Procedure, relative to justices' courts. It will be no- 
 ticed that the affidavit and undertaking must be filed with the clerk. 
 
 Affidavit. — For authorities as to the affidavit, see § 97. 
 
 Allowance, or approval of undertaking. — See § 110. 
 
 Amendments to undertakings. — See notes to § 3 ("Removals"). 
 
 Exception to, and justification of, sureties. — See §§ 70, 100, 108, 109. 
 
 Mistakes, omissions, defects, and irregularities; and general regula- 
 tions respecting affidavits, bonds, and undertakings. — Code Civ. Proc, 
 §§ 728, 729, 730, and 810 to 816, relating to affidavits and undertak- 
 ings, apply to this court, by subdivision 6. section 3347, of said Code, 
 making them applicable to all courts. 
 
 Undertaking. — For authorities as to undertakings, see §§ 99, 107, and 
 notes. 
 
 § 97. Affidavit therefor, before commencement of action. — 
 The affidavit prescribed in the last section, must particularly 
 describe the chattel to be replevied and must contain the 
 following allegations : 
 
 1. That the plaintiff is the" owner of the chattel, or is 
 entitled to the possession thereof, by virtue of a special 
 property therein; the facts with respect to which must be 
 set forth. 
 
 2. That it is wrongfully detained by the defendant. 
 
 3. The alleged cause of the detention thereof, according 
 to the best knowledge, information, and belief of the per- 
 son making the affidavit. 
 
 4. That it has not been taken by virtue of a warrant, 
 against the plaintiff, for the collection of a tax, assessment 
 or fine, issued in pursuance of a statute of the state, or of 
 the United States; or, if it has been taken under color of 
 such a warrant, either that the taking was unlawful, by 
 reason of defects, in the process, or other causes specified, 
 or that the detention is unlawful by reason of facts speci- 
 fied which have subsequently occurred.
 
 § 97 Subds. 1-4. Replevin. 213 
 
 Notes to section 97 and subdivisions 1, 2, 3 and 4. 
 
 This section is new, and is taken from section 1G95 of the Code of 
 Civil Procedure. See notes to § 95, subd. 1, and also § 96. 
 
 Additional or supplemental affidavit may be allowed when the original 
 is defective, or plaintiff may have leave to amend it. Depew v. Leal, 
 
 2 Abb. 131; Spaulding v. Spaulding, 3 How. 297; Dows v. Green, 
 
 3 How. 377. 
 
 Demand. — As to necessity of demand, see Clark v. Meigs, 22 How. 
 340. 13 Abb. 467, revg. 21 How. 187; Simser v. Cowan, 56 Barb. 395. 
 See also Kaufman v. Klang, 16 Misc. Rep. 379. 
 
 Where the taking was not wrongful, and the action is based on 
 the wrongful detention of the property, or in the detinet, demand 
 must be made before suit. 3 Abb. Pr. 383, 13 How. Pr. 219, 2 Abb. 
 Pf. 167, 37 How. Pr. 109, 1 Sweeney, 215. 
 
 Where the plaintiff's case depends upon a wrongful detention with- 
 out a wrongful taking, an averment in the complaint of a demand and 
 refusal is necessary. Bcofichl v. Whitelegge, 10 Abb. Pr. N. S. 104; 
 affd., Court of Appeals (see 12 Abb. Pr. N. S. 320, and 49 N. Y. 
 259) ; Levin v. Russell, 42 N. Y. 251, explained and distinguished; 
 Talcott v. Belding, 46 How. 419. See also The Hone Seiving Machine 
 Co. v. Haiti,/, 7 Daly. 108. 
 
 Demand must be alleged and proved in order to maintain replevin 
 for wrongful detention where the property came rightfully into de- 
 fendant's possession. Treat v. Hathorn, 3 Hun, 646. 
 
 Proof of demand before service of the papers is sufficient. Irr v. 
 Hchroeder, 6 Civ. Proc. Rep. 253. 
 
 Demand and refusal is the usual proof of conversion where defend- 
 ant did not come into possession wrongfully. Rawley v. Broion, 18 
 Hun, 456. A denial of title amounts to conversion when given in 
 response to a demand. Nelson v. Neil, 12 Week. Dig. 154. 
 
 Unless demand is proved, a failure to return cans in which milk 
 lias been received as per agreement does not show a conversion. 
 Riverson v. Kauffichl, 13 Hun, 387. 
 
 Where the defendant was notified that the property belonged to the 
 plaintiff, before he took it, the action lies without a demand and re- 
 fusal. Hallett v. Carter, 19 Hun, 629. 
 
 A wife living apart from her husband may, after demand and re- 
 fusal, maintain the action to recover her personal property which 
 remained in the husband's house when she left it. Rowland v. Row- 
 land, 20 Hun. 472. 
 
 A person who purchases, in good faith, goods at a sheriff's sale, which 
 are in the possession of the judgment debtor, is not liable to an action 
 for the recovery thereof, brought by the real owner, until demand and 
 refusal to deliver them. Raicley v. Brown, 18 Hun, 456.
 
 214 Replevin. § 97, Subds. 1-4. 
 
 Id.; when not necessary. — Demand for the return of the property is 
 not necessary before bringing replevin where the original taking was 
 wrongful. Schwabeland v. Holahan, 10 Misc. Rep. 176; s. c, 62 N. Y. 
 St. Rep. 518, 30 N. Y. Supp. 910. 
 
 Defendant being a warehouseman to whom a person other than 
 the owner, who nad unlawfully obtained possession of a piano, had 
 delivered it for storage, — Held, that the owner could maintain an 
 action for it without a previous demand. Milligan v. Brooklyn Ware- 
 house & Storage Co., 34 Misc. Rep. 55. 
 
 And an attachment is a protection to defendant or sheriff when 
 there is no proof of a demand for a return of the property, after the 
 attachment was vacated. Lux v. Davidson, 31 N. Y. St. Rep. 346. 
 
 A person who purchases, in good faith, goods at a sheriff's sale, 
 which are in possession of the judgment debtor, is not liable to an 
 action for the recovery thereof, brought by the real owner, until de- 
 mand and refusal to deliver them. Rawley v. Brown, 18 Hun, 456. 
 
 Description of property in the affidavit should be plain enough so that 
 the sheriff to whom it is delivered will be able to determine from it, 
 with some degree of accuracy and intelligence, what he is required to 
 replevy. Van Dyke v. The N. Y. State Banking Co., 18 Misc. Rep. 
 661. 
 
 It is insufficient if a part of the goods are merely referred to by 
 abbreviations the meaning of which is not shown by anything contained 
 in the schedule nor in the affidavit, or by letters and figures which, 
 read by themselves, are not descriptive at all, nor referred to in any 
 part of the schedule or affidavit so that their meaning is made plain. 
 National E. & 8. Co. v. Kaplan, 53 App. Div. 96, 65 N. Y. Supp. 732. 
 
 Description in the affidavit, " 10,000 wool pelts, the wool taken 
 therefrom, and the skins thereof (otherwise known as slats), in pickle 
 or lime,'' — Held sufficient on motion to set aside service of the sum- 
 mons and the taking of the goods. Marshal v. Friend, 33 Misc. Rep. 
 443, 68 N. Y. Supp. 502. 
 
 Irregularity in the affidavit is waived by general appearance or by 
 giving an undertaking and obtaining a return of the property. Wis. 
 M. d T. Ins. Co. v. Hobbs, 22 How. 494; Roberts v. Willard, 1 Civ. 
 Proc. Rep. 100; Hyde v. Patterson, 1 Abb. 248. 
 
 Mistakes, omissions, defects, and irregularities in affidavit, and amend- 
 ment thereof. See notes to § 96. 
 
 Objection must be promptly taken, and before the time to answer has 
 expired, and the irregularity must be specified in the notice of mo- 
 tion. Paddock v. Guyder, 29 N. Y. St. Rep. 773; s. c, 8 N. Y. Supp. 
 905; Van Dyke v. The N. Y. State Banking Co., 18 Misc. Rep. 661. 
 
 Ownership. — An affidavit by the plaintiff that he is the " owner " of 
 the property is sufficient without setting out the facts proving, or the 
 manner of, such ownership. Burns v. Bobbins, 1 Code Rep. 52; Van- 
 denburgh v. Van Valkenburgh, 8 Barb. 217.
 
 § 97, Subds. 5, 6. Replevin. 215 
 
 Right of possession. — The facts must be so shown as to make out a 
 special property and right of possession. If it appears that the evi- 
 dence of the facts rests in a writing, that must be set forth. Depew 
 v. Leal, 2 Abb. Pr. 136. 
 
 The complaint must show a right of property and of possession in 
 plaintiff. An allegation of wrongful detention is not sufficient. The 
 latter is a conclusion of law, the former the facts upon which it is 
 based. The facts must be pleaded, and without them the conclusion 
 of law is an immaterial statement. An omission to allege these facts 
 in the complaint is not cured by an averment in the answer denying 
 ownership in the plaintiff. Scofield v. Whitelegge, 10 Abb. Pr. N. S. 
 104; affd., 12 Abb. Pr. N. S. 320, and 49 N. Y. 259. 
 
 Setting aside the affidavit. — This may be done if it is untrue. 
 Niagara E. Co. v. McNamara, 1 Sheld. 360; affd., 2 Hun, 416, 4 
 T. & C. 604; O'Reiley v. Good, 42 Barb. 521, 18 Abb. 106; Stockwell v. 
 Teitch, 38 Barb. 650, 15 Abb. 412. 
 
 5. That it has not been seized by virtue of an execution 
 or warrant of attachment, against the property of the plain- 
 tiff, or of any person from or through whom the plaintiff 
 has derived title to the chattel, since the seizure thereof; 
 or, if it has been so seized, that it was exempt from the seiz- 
 ure, by reason of facts specified, or that its detention is 
 unlawful, by reason of facts specified which have subse- 
 quently occurred. 
 
 Notes to section 97, subdivision 5. 
 
 Exemption. — The affidavit must state the facts bringing the property 
 within the st: tutory exemption. It is sufficiently " shown " by " an 
 allegation" that the property is so exempt; but mere belief that the 
 property is so exempt is insufficient, unless it be added that such belief 
 is founded on a knowledge of the law or the advice of counsel cognizant 
 of all the facts of the case. Spalding v. Spalding, 3 How. Pr. 297, 
 1 Code Rep. 64; Roberts v. Willard, 1 Code Rep. 100. 
 
 6. Its actual value. 
 
 Notes to section 97, subdivision 6. 
 
 Value. — The value must be stated in the affidavit, and in its absence, 
 or where it states the value of the chattels over the jurisdictional 
 amount, the justice does not acquire jurisdiction. In the latter case 
 the affidavit cannot be amended so as to acquire jurisdiction. Jaynes 
 v. Jaynes, S Civ. Proc. Rep. 99 ; Irr v. Schroeder, 6 Civ. Proc. Rep. 253.
 
 216 Replevin. §§ 98, 99. 
 
 § 98. Where several chattels are to be replevied. — Where 
 the affidavit describes two or more chattels of the same 
 kind, it must state the number thereof, and where it de- 
 scribes a chattel in bulk, it must state the weight, measure- 
 ment, or other quantity. Where it describes two or more 
 chattels, to be replevied, it may, at the election of the plain- 
 tiff, state the aggregate value of all, or separately the value 
 of any chattel or of any class of chattels, and the aggregate 
 value of the remainder, if any. Where it states separately 
 the value of one or more chattels or classes of chattels, the 
 defendant may require, as prescribed in the following pro- 
 visions of this article, the return of any or all of the chat- 
 tels or classes of chattels, the value of which is thus stated, 
 or of the portion thereof which has been replevied. If he 
 procures such a return, the remainder must be delivered to 
 the plaintiff, except as is otherwise prescribed in this article. 
 
 Note to section 98. 
 
 This section is new and the same as section 1697 of the Code of 
 Civil Procedure, which is explanatory of section 1695 of said Code. 
 These two sections of the Code were referred to in section 1332 of 
 the Consolidation Act (Laws 1882, chap. 410). 
 
 § 99. Plaintiff's undertaking 1 for replevin. — The undertak- 
 ing must be executed by at least two sureties or by a fidelity 
 or surety company, expressly authorized by law to execute 
 an undertaking, which must be approved by the court. It 
 must be to the effect that the sureties are bound in a speci- 
 fied sum not less than twice the value of the chattel, as stated 
 in the affidavit, for the prosecution of the action, for the 
 return of the chattel to the defendant, if possession thereof 
 is adjudged to him, or if the action abates, or is discontin- 
 ued, before the chattel is returned to the defendant; and 
 for the payment to the defendant of any sum, which the 
 judgment awards to him against the plaintiff. 
 
 Notes to section 99. 
 
 This section is new and is substantially the same as section 1699 of 
 the Code of Civil Procedure, with the addition of permitting a fidelity 
 or surety company to execute the undertaking.
 
 § 100. Replevin. 217 
 
 Additional undertaking. — The court has no power to require an ad- 
 ditional undertaking where the value stated in plaintiff's affidavit is 
 claimed to be less than the true value. N. S. L. & T. Co. v. Bussey, 53 
 Hun, 516; De Regine v. Lewis, 3 Robt. 708. 
 
 And except the responsibility of the sheriff, defendant is entirely 
 without remedy if the sheriff has taken sham security. Manley v. 
 Patterson, 3 Uode Rep. 89. 
 
 Amendment of undertaking. — See notes to § 3 ("Removal"). 
 
 Defective undertaking. — A defective undertaking may be cured upon 
 exceptions. De Regine v. Leicis, 3 Robt. 708. Or, it seems, the court 
 will allow a new one nunc pro tunc. Decker v. Judson, 10 N. Y. 439, 
 443; Newland v. Willetts, 1 Barb. 20. 
 
 And the undertaking will not be vitiated by an error in the recital 
 of the date of the affidavit. Hyde v. Patterson, 1 Abb. 248. 
 
 Exception to and justification of sureties. — By section 70 of this act 
 sections 106 to 110 and sections 127 and 128, relating to undertakings, 
 sureties, and justification, are made applicable. 
 
 Mistakes, omissions, and irregularities in the undertaking which may 
 be corrected. See notes to § 1, subd. 3, and § 96. 
 
 § 100. When agent, et cetera, may make affidavit for re- 
 plevin or return. — The affidavit to be delivered to the court, 
 in behalf of the plaintiff, with a requisition to replevy a 
 chattel, may be made by the plaintiff's agent or attorney, 
 if the material facts are within his personal knowledge; or 
 if the plaintiff is not within the city of New York where 
 the attorney resides or has his office, or is not capable of 
 making the affidavit. The affidavit to be delivered to the 
 court, either in behalf of the defendant, with a notice that 
 he requires the return of the chattel, or in behalf of a per- 
 son not a party, who makes a claim as prescribed in section 
 one hundred and thirteen of this act, may be made by an 
 agent or attorney, if the material facts are within his per- 
 sonal knowledge, or if the defendant or claimant as the 
 case may be, is not within the city of New York, and capable 
 of making the affidavit. When the affidavit is made by an 
 attorney or agent, he must state therein what allegations, 
 if any, are made upon his information and belief; and he 
 must set forth therein the grounds of his belief, as to all 
 matters not stated upon his knowledge, and the reason why 
 the affidavit is not made by the party or the claimant.
 
 218 Keplevin. §§ 101, 102. 
 
 Note to section ioo. 
 
 This section i9 new and is substantially the same as section 1712 
 of the Code of Civil Procedure, except that it has been made to apply 
 to this court, and the word " city " is used in the place of the word 
 "county." See notes to §§ 95, 96, 97. 
 
 § 101. Requisition of justice. — Upon receiving the affi- 
 davit and undertaking, the justice must indorse upon or at- 
 tach to the affidavit a written requisition, subscribed by him, 
 requiring the marshal to whom the summons is delivered 
 to replevy the property described in the affidavit, on or be- 
 fore a day specified in the requisition, which must be at 
 least six days before the return day of the summons. The 
 affidavit, undertaking and requisition must be delivered to 
 the marshal with the summons. 
 
 Note to section xoi. 
 
 This section is taken from section 1333 of the Consolidation Act 
 (Laws 1882, chap. 410), which was taken from section 2921 of the 
 Code of Civil Procedure, appertaining to a justice's court, with the 
 exception that the words " except in the case of a nonresident de- 
 fendant " are stricken out. 
 
 § 102. How executed.— If any chattel described in the 
 affidavit is found in the possession of the defendant, or of 
 his agent, the marshal to whom the summons, affidavit and 
 requisition, together with a copy of the undertaking are 
 delivered, after the undertaking and requisition have been 
 approved by the court, as prescribed in the foregoing sec- 
 tions of this chapter, must forthwith replevy it by taking it 
 into his possession. He must thereupon without delay 
 serve upon the defendant a copy of the summons, affidavit, 
 requisition and undertaking by delivering the same to him 
 personally, if he can be found within the city of New York, 
 or if he cannot be so found, to his agent, if any, from whose 
 possession the chattel is taken; or if neither can be found 
 within the city of New York, by leaving a copy at the usual 
 place of abode of either, with a person of suitable age and 
 discretion.
 
 §§ 103, 104. Replevin. 219 
 
 Notes to section ioa. 
 
 This section is taken from section 1334 of the Consolidation Act 
 (Laws 1882, chap. 410), which is substantially the same as section 
 2922 of the Code of Civil Procedure, appertaining to justices' courts. 
 
 Compensation of marshal are his lawful fees and necessary expenses 
 for taking the property and keeping it, as taxed "by. the court out of 
 which the proceeding issued." See § 104 of this act. Formerly, under 
 section 1711, of the Consolidation Act, the compensation was left 
 to the discretion of the justice. Stewart v. Fidelity Loan Assn., 19 
 Misc. Rep. 49. 
 
 Owner. — A requisition for the claim and delivery of personal property 
 only authorizes the taking of the chattels from the defendant named 
 in the action, or his agent. It is no protection when he takes them 
 from another. The fact that the plaintiff is a marrfed woman and 
 that defendant is her husband and agent does not affect the legal 
 status of such owner. Otis V. Williams, 70 N. Y. 208. See also Hess 
 v. Sprague, 13 Week. Dig. 164; Deutsch v. Reilly, 8 Daly, 132; King 
 v. Oser, 4 Duer, 433. 
 
 § 103. How executed if property concealed, et cetera If 
 
 any chattel, described in the affidavit, is secured or con- 
 cealed in a building or inclosure, the marshal must publicly 
 demand its delivery. If it is not delivered, pursuant to the 
 demand, he must cause the building or inclosure to be broken 
 open, and must take the chattel Into his possession. 
 
 Notes to section 103. 
 
 This section is the same as section 1701 of the Code of Civil Pro- 
 cedure, with the exception of the word " sheriff," for which the word 
 " marshal " has been substituted. 
 
 Power of marshal. — A constable has the same power under this section 
 as the sheriff, and after knocking at a house and calling the name of 
 defendant, he may force an entrance, and finding no one inside need not 
 read aloud the list of articles. Howe v. Oyer, 50 Hun, 559. See also 
 § 304. 
 
 § 104. Marshal to keep in possession; when and how to 
 deliver. — A marshal who has replevied a chattel, must re- 
 tain it in his possession, keeping it in a secure place, until 
 the person who is entitled to the possession thereof, is ascer- 
 tained, as prescribed in this title. He must then deliver it 
 to that person upon request and payment of his lawful fees,
 
 220 Replevin. § 105. 
 
 and necessarv expenses for taking and keeping it, as taxed 
 by the court, out of which the proceedings issued. 
 
 Notes to section 104. 
 
 The first part of this section is taken from section 1702 of the Code 
 of Civil Procedure, vith the exception of the word " sheriff," for 
 which the word "marshal" lias been substituted, and the provision 
 as to the marshal's fees and expenses to be taxed by the court, which 
 has been added, is taken from section 1711 of the Consolidation Act 
 (Laws 1882, chap. 410). The words in the latter provision, "as 
 taxed by the court out of which the proceedings issued," probably 
 means as taxed by the justice holding court in the district in which 
 the action is brought, as there is only one court, and therefore the 
 words after the word " court " are unnecessary and may be regarded 
 as surplusage. See also Stewart v. Fidelity Loan Assn.. 19 Misc. Rep. 
 49. See also § 304. 
 
 Care of the property. — It is not sufficient that the sheriff use ordinary 
 diligence in the care of the property; he must preserve it safe. Moore 
 v. Westervelt, 21 X. Y. 103; s. c, 27 N. Y. 239: Edwards on Bail- 
 ments, 59. 
 
 The officer is primarily bound by his process to keep the property, or 
 to deliver it to the plaintiff; the service of affidavit and notice of 
 claim suspends that obligation, and releases him from it unless in- 
 demnity is given; when given, the obligation again attaches, and the 
 claim of the person entitled to the property is valid, the officer being 
 required to rely on the indemnity. Manning v. Keenan, 73 X. Y. 45. 
 
 The plaintiff does not release the sheriff from his liability by re- 
 ceiving property in its damaged condition, although damaged through 
 his negligence. Moore v. Westervelt, supra. And see First National 
 Bank v. Dunn, 29 Hun, 529; s. c, 97 X. Y. 149. 
 
 §105. Return to requisition. — The marshal must, on or 
 before the return day of the summons, make a return to 
 the requisition, under his hand, stating all his proceedings 
 thereupon; and file it, with the affidavit, undertaking, and 
 requisition, with the clerk in the district in which the action 
 is brought. The return must state the manner in which 
 the summons, affidavit, requisition and undertaking were 
 served; and, if they were served otherwise than by deliver- 
 ing the requisite copies to the defendant personally, the 
 reason therefor and the name of the person to whom the 
 copies were delivered, unless his name is unknown to the
 
 §106. Replevin. 221 
 
 marshal, in which case the return must describe him so as 
 to identify him, as nearly as may be. 
 
 Note to section 105. 
 
 This section is taken from section 1335 of the Consolidation Act 
 (Laws 1882, chap. 410), which was substantially the same as section 
 2923 of the Code of Civil Procedure, relating to justices' courts. The 
 word " undertaking " has been included in this section. 
 
 § 106. Defendant- when to except to sureties; proceedings 
 thereupon. — At any time after the chattel has been re- 
 plevied, and at least two days before the return day of the 
 summons, the defendant, unless he requires a return of the 
 chattel, may serve upon the plaintiff, or upon the marshal, 
 a written notice that he excepts to the plaintiff's sureties, 
 otherwise he is deemed to have waived all objections to 
 them. If such a notice is served, the sureties must justify 
 upon the return of the summons, or the plaintiff must then 
 give new undertaking to the same effect as the original 
 undertaking, with other sureties, who must then appear and 
 justify before the court. 
 
 Notes to section 106. 
 
 This section is taken from section 1336 of the Consolidation Act 
 (Laws 1882, chap. 410), which was the same as section 2924 of the 
 Code of Civil Procedure, relating to justices' courts. The nonresident 
 portion is stricken out. 
 
 See §§ 70 and 92, making this section to §§ 110 and 127 and 128 
 applicable. 
 
 Failure to justify. — Where defendant in replevin duly excepts to the 
 sufficiency of plaintiff's sureties, they must justify upon the return of 
 the summons, and their mere presence in court is not sufficient, and if 
 plaintiff neglects to procure the justification, defendant, unless he con- 
 sents to an adjournment of the justification, is entitled to the immediate 
 return of the property taken by the marshal, in default of which the 
 marshal becomes personally liable therefor. Koerkle v. Pangburn, 30 
 Misc. Rep. 770. 
 
 Effect of exception. — By excepting to plaintiff's sureties the defendant 
 waives his right to a return, although they fail to justify. Cullen v. 
 Miller, 5 Abb. N. C. 282. See also Hofheimer v. Campbell, 59 N. Y. 
 2G9.
 
 222 Replevin. § 107. 
 
 This latter decision is apparently overruled by section 1706 of the 
 Code of Civil Procedure. See however § 107 of this act. 
 
 When chattels to be returned. — Where defendant excepts to the suffi- 
 ciency of plaintiff's sureties in replevin, the plaintiff must either pro- 
 cure a satisfactory justification of such sureties or furnish another 
 undertaking to the same effect as the original, the sureties in which 
 must appear and justify before the justice. If neither of these things 
 are done, it is the duty of the constable who seized the chattel to 
 return it to the defendant. Goff v. Bliss, 12 Civ. Proc. Rep. 99. 
 
 §107. Defendant may reclaim chattel; proceedings there- 
 upon. — At any time before the return of the summons, the 
 defendant may, if he does not except to the plaintiff's sure- 
 ties, serve upon the clerk a notice that he requires the re- 
 turn of the chattel replevied. "With the notice he must 
 deliver to the clerk the following papers: 
 
 1. An affidavit, containing an allegation, either that the 
 defendant is the owner of the chattel, or that he is lawfully 
 entitled to the possession thereof, by virtue of a special 
 property therein, the facts with respect to which must be 
 set forth. 
 
 2. An undertaking, executed by at least two sureties, or 
 a fidelity or surety company, specifically authorized by law 
 to act instead of sureties, to the effect that they are bound, 
 in a specified sum, not less than tAvice the value of the chat- 
 tel, as stated in the affidavit of the plaintiff, for delivery 
 thereof to the plaintiff, if delivery thereof is adjudged, and 
 for the payment to him of any sum, which the judgment 
 awards against the defendant. The sureties in the under- 
 taking, must justify before the court, upon the return of 
 the summons. 
 
 If the plaintiff has stated separately in his affidavit the 
 value of one or more chattels, or classes of chattels, as pre- 
 scribed in section ninety-eight of this act, the defendant 
 may require a delivery of part of the property replevied, 
 as prescribed in that section. 
 
 Notes to section 107. 
 
 This section is taken from section 1337 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as section 2925 of the Code
 
 § 108. Replevin. 223 
 
 of Civil Procedure, applicable to justices' courts, and also from sec- 
 tion 1704 of said Code. 
 
 Amendment of undertaking. — See notes to § 3, " Removal." 
 
 Description of property. — The effect of the recitals in the undertak- 
 ing is not disturbed by this section giving defendant a right to a return 
 of the property replevied, on giving a bond, although it be not the 
 property described in the requisition. Martin v. Gilbert, 119 N. Y. 
 298. See Auerbach v. Marks, 12 Week. Dig. 155. 
 
 Exception to and justification of sureties. — By section 70 of this act 
 sections 100 to 110 and sections 127 to 128, relating to undertakings, 
 sureties, and justification, are made applicable. 
 
 Id. — By excepting to plaintiff's sureties the defendant waives his right 
 to a return, although they fail to justify. Cullen v. Miller, 5 Abb. N. 
 C. 282; Hofheimer v. Campbell, 59 N. Y. 269, affg. 7 Lans. 157. This 
 latter decision is apparently overruled by section 1700 of the Code of 
 Civil Procedure. See § 100 of this act. 
 
 Mistakes, omissions, defects, and irregularities in affidavit, and under- 
 taking. — See notes to § 1, subd. 3, and § 96. 
 
 Undertakings. — Sections applicable as to. See §§ 70, 92, 106 to 110, 
 127, 128. 
 
 Where several chattels are to be replevied. — See § 98. 
 
 § 108. Qualifications of sureties — The qualifications of 
 sureties, as required by this act, are as follows : 
 
 1. Each of them must be a resident of, and a householder 
 or freeholder within the city of New York. 
 
 2. Each of them must be worth twice the sum specified 
 for which they become obligated in the undertaking or order 
 of arrest, exclusive of property exempt from execution. 
 
 3. A fidelity or surety company specifically authorized 
 by law to act as surety. 
 
 Notes to section 108. 
 
 This section is taken from section 1338 of the Consolidation Act 
 (Laws 1882, chap. 410), which was the same as section 2926 of the 
 Code of Civil Procedure, applicable to justices' court. It is sub- 
 stantially the same as section 579 of said Code, with the provision as 
 to fidelity and surety companies added. See also §§70 and 92, entitled 
 " Sections applicable as to undertakings, et cetera," being §§ 106 to 110, 
 and 127 and 128 of this act. 
 
 Disqualified sureties. — By rule 5 of the Supreme Court, attorneys 
 are prohibited; attorneys' clerks are also disqualified. Miles v. Clarke, 
 4 Bosw. 632; Kellog v. Herr, 1 Law Bull. 93; Wheeler v. Wilcox, 7 
 Abb. 73.
 
 224 Replevin. § 109. 
 
 The provisions of this rule as to attorneys do not apply to one who 
 has relinquished the practice of law. Stringham v. Stewart, 8 Civ. 
 Proc. Rep. 120; Evans v. Harris, 47 N. Y. Super. 366. 
 
 Sheriffs and their officers are disqualified. Bailey v. Warden, 20 
 Johns. 129. 
 
 It is necessary to except to them. Miles v. Clark, 4 Bosw. 632. 
 
 A freeholder is one who has title to real estate. People v. Scott, 8 
 Hun, 566; People v. Hynds, 30 N. Y. 470. 
 
 A householder for the purposes of bail may be one who occupies a 
 portion of a building as an office. Somerset d W. Sav. Bank v. Huyck, 
 33 How. 323. 
 
 Public policy. — Agreement to go bail for a pecuniary consideration is 
 not against public policy. Fitch v. Yanderveer, 6 Week. Dig. 243. 
 
 Nor where the bail is previously indemniiied. People v. Ingersoll, 
 14 Abb. N. S. 23. 
 
 § 109. Justification. — For the purpose of justification, 
 each of the sureties or bail must attend before the court, at 
 the time and place mentioned in the notice, provided in 
 section one hundred and six of this act, and be examined 
 on oath, touching his sufficiency, in such manner as the 
 court, in its discretion, thinks proper. The court may, in 
 its discretion, adjourn the examination, from day to day, 
 until it is completed, but such an adjournment must always 
 be to the next judicial day, unless by consent of parties. If 
 required by the attorney for the adverse party, the exam- 
 ination must be reduced to writing, and subscribed by the 
 bail or surety. 
 
 Notes to section 109. 
 
 This section is taken from section 1338 of the Consolidation Act 
 (Laws 1882, chap. 410), which was the same as section 2926 of the 
 Code of Civil Procedure, relative to justices' courts. It is substan- 
 tially the same as section 580 of said Code. See also §§ 70 and 92, 
 entitled " Sections applicable as to undertakings, et cetera," which are 
 §§ 106 to 110 and 127, 128 of this act. 
 
 Section 106 refers to " Defendant, when to except to sureties, and 
 proceedings thereupon." 
 
 Failure to justify, the sureties cease to be bail and cannot surrender 
 their principal to relieve themselves from responsibility. Haberstro v. 
 Bedford, 118 N. Y. 187, affg. 5 N. Y. St. Rep. 399. 
 
 Further time. — If the bail do not justify at the time fixed, further 
 time may be allowed when cause shown, but new notice must be given. 
 Burns v. Robbins, 1 Code Rep. 62; Lewis v. Stevens, 93 N. Y. 57.
 
 §§ 110, 111. Eeplevin. 225 
 
 Surety company. — Justification of a surety company, when sufficient. 
 Rosenwald v. Phoenix Ins. Co., 9 Civ. Proc. Rep. 444. 
 
 § 110. Allowance of undertaking. — If the court finds the 
 surety or bail sufficient, it must annex the examination to 
 the undertaking, indorse its allowance thereon, and cause 
 them to be filed with the clerk. 
 
 Notes to section no. 
 
 This .section is taken from section 1338 of the Consolidation Act 
 (Laws 1882, chap. 410), which was the same as section 2926 of the 
 Code of Civil Procedure, relative to justices' courts. It is substan- 
 tially the same as section 581 of said Code. See also §§70 and 92, 
 entitled " Sections applicable as to undertakings, et cetera," which are 
 §§ 106 to 110, 127, and 128 of this act. 
 
 Amendment of undertaking. — See note9 to § 3, " Removals." 
 
 Approval. — In replevin proceedings plaintiff's undertaking must be 
 approved by the justice and not by the marshal. Grotz v. Hussey, 61 
 How. 448. 
 
 Rejection of one of the bail is a rejection of all unless further time be 
 given by the court. O'Neill v. Durkee, 12 How. 94. 
 
 § 111. When and to whom marshal to deliver chattel. — If 
 
 the defendant neither excepts to the plaintiff's sureties, nor 
 requires the return of the chattel, within the time pre- 
 scribed for that purpose, or if he fails to procure the allow- 
 ance of his undertaking, or if the plaintiff, after the de- 
 fendant has excepted to his sureties, duly procures the 
 allowance of his undertaking, the marshal must, except in 
 the case specified in section one hundred and thirteen of 
 this act, immediately deliver the chattel to the plaintiff. If 
 the plaintiff, after the defendant has excepted to his sure- 
 ties, fails to procure the allowance of his undertaking, or 
 if the defendant after he has required the return of the 
 chattel, procures the allowance of his undertaking, the mar- 
 shal must immediately deliver the chattel to the defendant. 
 
 Note to section in. 
 
 This section is substantially the same as section 1339 of the Con- 
 solidation Act (Laws 1882, chap. 410). Section 113 relates to claim 
 of title by third person, and proceedings thereupon. 
 15
 
 226 Replevin. §§ 112, 113. 
 
 § 112. Penalty for wrong delivery by marshal. — The mar- 
 shal who delivers to either party, without the consent of 
 the other, a chattel replevied by him, except as prescribed 
 in the last section, or by virtue of an execution issued upon 
 a judgment in the action, forfeits to the party aggrieved 
 the sum of one hundred dollars, and is also liable to him 
 for all damages which he sustains thereby. 
 
 Notes to section 112. 
 
 This section is the same as section 1340 of the Consolidation Act 
 (Laws 1882, chap. 410), which was taken from section 2928 of the 
 Code of Civil Procedure, relative to justices' courts. See §§ 113 and 
 114, and notes. 
 
 What should be alleged. — In an action for a penalty under this section 
 (§ 2928, Code Civ. Proc), it is not enough to allege merely that de- 
 fendant's act in delivering certain property was " wrongful and un- 
 lawful ; " facts should be stated showing that it was so. Schroeder v. 
 Becker, 22 Week. Dig. 261. 
 
 § 113. Claim of title by third person; proceeding thereupon. 
 — At any time before the chattel which has been replevied 
 is actually delivered to either party, if a person not a party 
 to the action, claims as against the defendant a right to the 
 possession thereof, existing at the time when it was replevied, 
 an affidavit may be made and delivered to the marshal who 
 executed the requisition, in his behalf, stating that he makes 
 such claim, specifying the chattel or chattels, to which it 
 relates, if two or more chattels have been replevied, and 
 the claim relates only to part of them, and setting forth the 
 facts upon which his right of possession depends. In that 
 case, the marshal may, in his discretion, before he delivers 
 the chattel to the plaintiff, serve upon the plaintiff's attor- 
 ney, a copy of the affidavit with a notice that he requires 
 indemnity against the claim. If the indemnity is not fur- 
 nished within a reasonable time, after the plaintiff becomes 
 entitled to the delivery of the chattel, the marshal may, in 
 his discretion, deliver it to the claimant without incurring 
 any liability to the plaintiff, by reason of so doing.
 
 § 114. Replevin. 227 
 
 Notes to section 113. 
 
 This section is taken from section 1341 of the Consolidation Act 
 (Laws 1882, chap. 410), and from section 1709 of the Code of Civil 
 Procedure, and is substantially the same, substituting the word " mar- 
 shal " for " sheriff." See also § 2929, Code Civ. Proc., relative to 
 justices' courts, which is substantially the same. 
 
 Defendant's claim. — Formerly the defendant could not avail himself 
 of the fact that a third party is entitled to the chattel, and it was held 
 that section 723 of the Code of Civil Procedure did not apply to this 
 court. See Carsicell v. Alden, 12 Civ. Proc. Rep. 137; s. c, 6 N. Y. 
 St. Rep. 297. This has been changed by section 116 of this act, which 
 is the same as section 1723 of said Code. 
 
 Marshal. — As to proceedings of the marshal on claim by third person 
 see Manning v. Keenan, 73 N. Y. 45, affg. 9 Hun, G80; Lynch v. St. 
 John, 8 Daly, 142; Second Nat. Bank v. Dunn, 63 How. 434, 2 Civ. 
 Proc. Rep. 259. Where, after property has been taken in replevin, 
 defendant does not require its return upon giving an undertaking under 
 section 1704, and no claim is made by a third person under section 1709, 
 plaintiff is entitled to its possession, and an order of interpleader au- 
 thorizing substitution for defendant of the claimant cannot be made. 
 Pelham Hod El. Co. v. Baggaley, 12 N. Y. Supp. 218; s. c, 34 N. Y. 
 St. Rep. 691. 
 
 § 114. Action against a marshal on claim — A person, not 
 a party to the action, who has served an affidavit as pre- 
 scribed in the last section, may maintain an action, against 
 the marshal who has delivered the chattel to the plaintiff, 
 to recover his damages, by reason of the taking, detention, 
 or delivery of the chattel. But the summons in such an 
 action must be issued within three months after the deliv- 
 ery of the chattel to the plaintiff, and must be served within 
 three months after it is issued. An action cannot be main- 
 tained against a marshal by a person so entitled to make 
 a claim, except as prescribed in this section. 
 
 Note to section 114. 
 
 This section is taken from section 1341 of the Consolidation Act 
 (Laws 1882, chap. 410). and from section 1710 of the Code of Civil 
 Procedure, and is substantially the same, substituting the word " mar- 
 shal " for " sheriff." See also § 2929 of said Code, relative to jus- 
 tices' court. See Manning v. Keenan, 9 Hun. 686; affd., 73 N. Y. 45. 
 And see Haskins v. Kelly, 1 Robt. 160, 1 Abb. N. S. 63; Edgerton v. 
 Ross. 6 Abb. 189.
 
 228 Replevin. §§ 115, 116, 117. 
 
 § 115. Indemnity to marshal against such action. — The in- 
 demnity to be furnished to the marshal by the plaintiff, as 
 prescribed in the last section but one, must consist of a writ- 
 ten undertaking to him, in an amount at least double the 
 actual value of the property claimed, executed by at least 
 two sureties, or in a proper case by a fidelity or surety com- 
 pany, that they or it will indemnify him against any lia- 
 bility, for damages, costs or expenses, to be incurred in an 
 action, brought against him, by reason of the taking or de- 
 tention of the chattel, or its delivery to the plaintiff. Each 
 of the sureties besides possessing the other qualifications 
 required by law, must be a freeholder or householder in the 
 city of New York. The marshal before delivering the chat- 
 tel, may require the persons offered as sureties, to submit 
 to an examination, before the court, out of which the pro- 
 ceedings issued. The sureties are entitled to be sub- 
 stituted as defendants, in an action, brought as prescribed 
 in the last section, as if the chattel had been levied upon, 
 by virtue of an execution. 
 
 Note to section 115. 
 
 This section is taken from section 1341 of the Consolidation Act 
 (Laws 1882, chap. 410), and from 'section 1711 of the Code of Civil 
 Procedure. See also § 2929 of said Code, relative to justices' courts. 
 
 § 116. Answer of title in third person. — The defendant 
 may, by answer, defend, on the ground that a third person 
 was entitled to the chattel, without connecting himself with 
 the latter's title. 
 
 Note to section 116. 
 
 This section is the same as section 1723 of the Code of Civil Pro- 
 cedure, which is now made applicable to this court, although formerly 
 it was not so. See notes to § 113, "Defendants' claims." 
 
 § 117. Defendant may demand judgment for return of chat- 
 tel. — Where a chattel has been replevied, and the defendant 
 has not required the return thereof, pending the action, as 
 prescribed in the foregoing sections, he may, in his answer, 
 demand judgment for the return thereof, either with or 
 ■without damages for the taking, withholding, or detention.
 
 §§ 118, 119. Replevin. 229 
 
 Not^ to section 117. 
 
 This section is the same as section 1342 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as section 2930 of the Code 
 of Civil Procedure, applicable to justices' courts. 
 
 § 118. For delivery of property; how money recovered by 
 same judgment may be collected — An execution for the de- 
 livery of a chattel, must particularly describe the property 
 and designate the party to whom the judgment awards pos- 
 session thereof. It must require the marshal to deliver the 
 possession of the property within the city of ISTew York, to 
 the party entitled thereto. If a sum of money is awarded 
 by the same judgment, it may be collected by virtue of the 
 same execution; or a separate execution may be issued for 
 the collection thereof, omitting the direction to deliver pos- 
 session of the property. If one execution is issued for both 
 purposes, it must contain with respect to the money to be 
 collected, the same directions as an execution against prop- 
 erty, or against the person as the case requires. 
 
 Note to section 118. 
 
 This section is taken from section 1373 of the Code of Civil Pro- 
 cedure, and from section 1343 of the Consolidation Act (Laws 1882, 
 chap. 410), which included this section of the Code. The word "mar- 
 shal " is substituted for " sheriff," the reference to real property is 
 excluded, and the words " The City of New York " is substituted for 
 " County." See also § 124, " Execution ; contents thereof," and Van 
 Rensselaer v. Wright, 56 Hun, 39; Hoffman v. Connor, 76 N. Y. 121; 
 affd., 13 Hun, 541. 
 
 § 119. Damages when chattel injured, et cetera, by defend- 
 ant. — "Where the plaintiff recovers a chattel which was in- 
 jured, or otherwise depreciated in value, while it was in the 
 possession or under the control of the defendant, under 
 such circumstances, that the plaintiff might recover dam- 
 ages for the injury or depreciation, in an action brought 
 against the defendant therefor, he may recover the same 
 damages, in an action brought as prescribed in this article. 
 In that case he must set forth the facts in his complaint, 
 and demand judgment for damages accordingly.
 
 230 Replevin. § 120. 
 
 Notes to section 119. 
 
 This section is the same as section 1722 of the Code of Civil Pro- 
 cedure. 
 
 Complaint. — Where the plaintiff recovers a chattel which was injured, 
 or otherwise depreciated in value, while it was in the possession or 
 under the control of the defendant, under such circumstances that the 
 plaintiff might recover damages for the injury or depreciation, in an 
 action brought against the defendant therefor, he may recover the same 
 damages in an action brought as prescribed in this article. In that 
 case, he must set forth the facts in his complaint, and demand judg- 
 ment for damages accordingly. See Braekelee & Co. v. Schwabeland, 
 86 Hun, 143; Corn Ex. Bank v. Blye, 56 Hun, 463. 
 
 Measure of damages for the detention of machines placed in a factory 
 upon trial or approval is the interest on their value. Redmond v. 
 Am. Mfg. Co., 121 N. Y. 415; affd., 56 N. Y. Super. 372. See also 
 8 Abb. N. C. 368; Barry v. Fisher, 39 How. 521; Smith v. Orser, 43 
 Barb. 187. 
 
 Separate action. — Plaintiff, if he recovers the chattel, can maintain a 
 separate action to recover damages for the taking or detention of the 
 property. Sinskie v. Brust, 66 App. Div. 35. 
 
 § 120. Judgment or verdict; what to state. — The judgment, 
 verdict or decision, must fix the damages, if any, of the 
 prevailing party. 
 
 1. Where it awards to the plaintiff a chattel, which has 
 not been replevied, or where it awards to the prevailing 
 party a chattel, which has been replevied, and afterwards 
 delivered by the marshal to the unsuccessful party, or to a 
 person not a party, it must also fix the value of the chattel, 
 at the time of the trial. 
 
 2. In a case where the unsuccessful party had a special 
 property therein, not equal to the full valuation of the chat- 
 tel to fix the value of the special property. 
 
 Notes to section 120. 
 
 This section is taken from sections 1726 and 1727 of the Code of 
 Civil Procedure, substituting the word " marshal " for " sheriff," and 
 " judgment " for " report." 
 
 Judgment for plaintiffs, in an action to recover a chattel, should 
 award to them the possession of the chattel, or the sum fixed as the 
 value thereof, if possession cannot be obtained. Lewin v. Towbin, 31 
 Misc. Rep. 780.
 
 §§ 121, 122. Kepeevix. 231 
 
 The court cannot supply the omission where the verdict does not find 
 the value. Pakas v. Racy, 13 Daly, 227. 
 
 The value of the property must be assessed and damages for its de- 
 tention. Phillips v. Melville, 10 Hun, 211; Button v. Chapin, 7 Civ. 
 Proc. Rep. 278. 
 
 The verdict, report, or decision must set forth the reason why the 
 value of the chattel is not fixed. See Claflin v. Davidson, 53 N. Y. 
 Super. 122; Kecney v. Swan, 2 N. Y. St. Rep. 214. 
 
 An action for the recovery of personal property in which no affida- 
 vit or requisition has been made, and the facts required by sections 
 1690, 1695, are not alleged, is not necessarily an action of replevin so 
 as to require a verdict in the alternative, but a verdict for the value 
 of the property may be rendered. Wilsey v. Rooney, 41 N. Y. St. Rep. 
 444, 16 N. Y. Supp. 471. 
 
 For final judgment under subdivision 2 of this section, see § 123. 
 
 § 121. Judgment or verdict, et cetera, for part of several 
 chattels. — Where the action is brought to recover two or 
 more chattels, the judgment, verdict or decision, may award 
 to one party, one or more distinct chattels, which can be 
 identified, and set apart from the others, and the residue 
 to the other party, and, if necessary, the complaint must be 
 amended so as to conform thereto. The final judgment 
 rendered thereupon, must award to each party the same 
 relief, with respect to the finding in his favor, as if sepa- 
 rate judgments were rendered, except that, where each 
 party is entitled to an absolute award of a sum of money, 
 against the other, the smaller sum must be deducted from 
 the greater, and the balance only must be awarded. 
 
 Notes to section 121. 
 
 This section is new and taken from section 1728 of the Code of 
 Civil Procedure, substituting the word " judgment " for " report." 
 See Woodburn v. Chamberlain, 17 Barb. 446. 
 
 Costs. — This section has no bearing upon the question of costs. 
 Newell U. M. Co. v. Muxlow, 115 N. Y. 170, 175; Mertcns v. Fitzwater, 
 53 Hun, 597; Ackerman v. O'Gorman, 17 Civ. Proc. Rep. 275. 
 
 § 122. Damages; how ascertained on default. — Where the 
 plaintiff is entitled to judgment by default, for want of an 
 appearance or pleading, the court to which he applies for 
 judgment may ascertain and determine the damages to
 
 232 Replevin. § 123. 
 
 which he is entitled and the value of the chattel, if neces- 
 sary. 
 
 Note to section 122. 
 
 This section is the same as section 1729 of the Code of Civil Pro- 
 cedure, with the exception of the omission as to directing a reference 
 or a writ of inquiry, as this court has no such power. 
 
 § 123. Final judgment, et cetera — Final judgment for the 
 plaintiff must award to him possession of the chattel recov- 
 ered by him, with his damages if any. If a chattel recov- 
 ered was not replevied, or if after it was replevied it Avas 
 delivered to the defendant, or to a person not a party, as 
 prescribed in this act, the final judgment must also award 
 to the plaintiff the sum fixed as the value thereof, to be paid 
 by the defendant, if possession thereof is not delivered to 
 the plaintiff. If the defendant has demanded judgment for 
 the return of a chattel, which was replevied, and afterwards 
 delivered to the plaintiff or to a person not a party, as pre- 
 scribed in this act, final judgment in his favor therefor must 
 award to him possession- thereof, with his damages, if any, 
 and it must also award to him the sum fixed as the value 
 thereof; to be paid by the plaintiff, if possession is not de- 
 livered to the defendant. But if the case is one of those 
 specified in subdivision two of section one hundred and 
 twenty of this act, final judgment in favor of the defendant 
 must award to him the sum fixed as therein specified, and if 
 it is not collected, the delivery of the chattel, or, if the chat- 
 tel has not been replevied, or has been returned to him after 
 replevin, that he is entitled to the possession thereof, until 
 the sum so awarded is collected, or otherwise paid. 
 
 Notes to section 123. 
 
 This section is taken from section 1730 of the Code of Civil Pro- 
 cedure, leaving out the part commencing " The judgment may be dock- 
 eted," because the same is applicable only to courts of record. 
 
 Alternative judgment. — An omission to render judgment in the alter- 
 native in an action of replevin is an irregularity which may be cured 
 by modification on appeal. Wolf v. Farley, 40 N. Y. St. Rep. 808. 
 See Lewisohn v. Apple, 12 Civ. Proc. Rep. 274; Boehm v. Blanchard, 
 31 N. Y. St. Rep. 55, 9 N. Y. Supp. 396.
 
 §§ 124, 125. Eeplevin. 233 
 
 Dismissal of complaint. — Where plaintiff fails to make out a case in 
 replevin, and defendant has not claimed title in himself, he is not 
 entitled to a judgment of possession of the property and damages, but 
 only to a dismissal of the complaint. Nicols v. Potts, 35 Misc. Rep. 
 273, 71 N. Y. Supp. 7G5. 
 
 Erroneous judgment. — Where judgment was rendered as follows: 
 " Upon deposit by defendant Cohen in court of $17, together with 
 $5.50, for the benefit of the plaintiffs, there will be judgment for the 
 defendant for the return of the piano, with costs." Held erroneous 
 as not in conformity with Code Civ. Proa, § 1730. Fischer v. Cohen, 
 22 Misc. Rep. 117. 
 
 §124. Execution; contents thereof — An execution for the 
 delivery of the possession of a chattel and to satisfy out of 
 the property of the judgment debtor a sum of money con- 
 tingently awarded against him, must contain, in addition 
 to the other matters prescribed by law, the following direc- 
 tion: 
 
 1. Where the judgment awards a sum of money, if pos- 
 session of the chattel is not delivered to the prevailing party, 
 the execution must require the marshal if the chattel can- 
 not be found within the city of New York, to satisfy the 
 sum so awarded with interest and his fees, out of the prop- 
 erty of the party against whom the judgment is rendered. 
 
 *A direction to satisfy a sum of money out of property, 
 as prescribed in this section, must be in the form required 
 by law for a like direction, where an execution against prop- 
 erty is issued upon a judgment for a sum of money. 
 
 Note to section 124. 
 
 This section is taken from section 1731 of the Code of Civil Pro- 
 cedure, substituting the word " marshal " for " sheriff," and the " city 
 of New York" for "his county." See also § 118, "For delivery of 
 property; how money recovered by same judgment may be collected." 
 
 § 125. Marshal's power to take chattel. — For the purpose 
 of taking possession of a chattel, by virtue of such an execu- 
 tion, the powers of the marshal are the same as where he 
 is required to replevy a chattel. 
 
 * So in original ; should be " 2."
 
 234 Replevin. §§ 120, 127, 128. 
 
 Note to section 125. 
 
 This section is the same as section 1732 of the Code of Civil Pro- 
 cedure, except that the word " marshal " is substituted for " sheriff." 
 See Hoffman v. O'Connor, 76 N. Y. 121, affg. 13 Hun, 541. 
 
 §126. Action on undertaking; when maintainable. — A 
 plaintiff who has recovered a final judgment cannot main- 
 tain an action against the sureties in an undertaking given 
 in behalf of the defendant to procure a return of the chat- 
 tel or against the bail of a defendant who has been arrested, 
 until after the return, wholly or partly unsatisfied or un- 
 executed, of an execution in his favor, for the delivery of 
 the possession of the chattel, or to satisfy a sum of money 
 out of the property of the defendant, or for both purposes, 
 as the case requires. A defendant who has recovered a final 
 judgment cannot maintain an action against the sureties in 
 the plaintiff's undertaking, given to procure a replevin until 
 after a like return of similar execution against the plaintiff. 
 
 Note to section 126. 
 
 This section is the same as section 1733 of the Code of Civil Procedure. 
 See § 1, subd. 3, and notes, and Diossy v. Morgan, 74 N. Y. 11; Harri- 
 son v. Wilkin, 78 N. Y. 390; Loaners' Bank v. Jacoby, 10 Hun, 143; 
 Jagger v. Lallance, 8 Daly, 251. 
 
 § 127. Marshal's return; evidence therein. — In such an ac- 
 tion against the sureties, the marshal's return to the execu- 
 tion is presumptive evidence of a failure to deliver or to 
 return a chattel, or to pay a sum of money, according to 
 the terms of the undertaking. 
 
 Note to section 127. 
 
 This section is the same as section 1734 of the Code of Civil Pro- 
 cedure, except that the word " marshal " has been substituted for 
 " sheriff." 
 
 § 128. Injury, et cetera, no defence. — It is not a defence 
 to such an action, that the chattel was injured or destroyed, 
 after it was replevied, unless the injury or destruction was 
 affected by the act, or with the consent of the plaintiff, in
 
 §§120, 130. Replevin. 233 
 
 the action, or occurred after the chattel was taken by virtue 
 of the execution. 
 
 Note to section 128. 
 
 This section is the same as section 1733 of the Code of Civil Pro- 
 cedure, and follows the case of Jenkins v. Suydam, 3 Sandf. 614. 
 
 § 129. Proceeding where summons not personally served. — 
 Where the defendant does not appear, and the summons has 
 not been personally served upon him, and a chattel, or a part 
 of a chattel, to recover which the action is brought, has 
 been replevied, and the^ proceedings thereupon have been 
 duly taken, as prescribed in this act, the court must proceed 
 to hear and determine the action with respect to that chat- 
 tel, or part of a chattel, or, if the action is brought to re- 
 cover two or more chattels, with respect to those which have 
 been replevied, in like manner and with the like effect as 
 if the summons had been personally served. 
 
 Note to section 129. 
 
 This section is the same as section 1344 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as section 2932 of the Code 
 of Civil Procedure, relating to justices' courts. 
 
 § 130. When action not affected by failure to replevy. — 
 Where the summons has been personally served upon the 
 defendant, or where he appears, the court must proceed to 
 hear and determine the action, although the plaintiff has 
 not required the chattel to be replevied, or the marshal has 
 not been able to replevy it. 
 
 Notes to section 130. 
 
 This section is the same as section 1345 of the Consolidation Act 
 (Laws 1882, chap. 410), and is the same as section 2933 of the Code 
 of Civil Procedure, relating to justices' courts, substituting the word 
 " marshal " for " constable." 
 
 No requisition. — An action to recover a chattel may be maintained, 
 although there has been no requisition. Ghiyon v. Rooney, 25 N. Y. 
 St. Rep. 326; Irr v. Schroeder, 6 Civ. Proc. Rep. 253; Devlin v. Stohl, 
 2 Civ. Proc. Rep. 222.
 
 236 Action to Foreclose Lien. §§ 131, 137. 
 
 § 131. Joinder of action with others. — Nothing in this 
 title is to be so construed as to prevent the plaintiff from 
 uniting in the same complaint two or more causes of action, 
 in any case specified in section one hundred and forty-six 
 of this act. 
 
 Notes to section 131. 
 This section is substantially the same as section 1689 of the Code 
 of Civil Procedure. 
 
 Section 146 refers to " What causes of action may be joined in the 
 same complaint," and subdivision 3, " Chattels with or without dam- 
 ages for the taking or detention thereof." 
 
 Note. — There are no sections from 131 to 137. 
 
 ARTTCUE IV. 
 
 Action to Foreclose a Lien on a Chattel. 
 
 Section 137. Action; when and in what courts maintainable. 
 
 138. Warrant in action.* 
 
 139. Action on conditional sale agreement, et cetera; how 
 
 brought. 
 
 140. Judgment; order of arrest; body execution. 
 
 141. Judgment, et cetera. 
 
 142. Application of this article. 
 
 § 137. Action; when and in what courts maintainable. — 
 An action may be maintained in the municipal court of the 
 city of New York, to foreclose a lien upon a chattel, for a 
 sum of money, where the amount claimed, exclusive of 
 costs, does not exceed five hundred dollars, in any case 
 where such a lien exists at the time of the commencement 
 of the action. 
 
 Notes to section 137. 
 
 This section is taken from section 1737 of the Code of Civil Pro- 
 cedure. The subject-matter follows the same as in actions in the 
 Supreme Court. 
 
 This section is substantially the same as already contained in section 
 1, " Jurisdiction," subdivision 10. See notes under that section. 
 
 The proper mode of enforcing a common-law lien against chattels was 
 discussed by Judges Brady and Daly in Trust v. Pierson, 1 Hilt. 292, 
 
 *So in original; should be "for." See § 138.
 
 §§ 138, 139. Action to Foreclose Lien. 237 
 
 from which can be seen the difficulty had in enforcing or satisfying a 
 lien upon chattels. 
 
 Sections 137 to 142 have regulated and made plain the remedy. 
 
 § 138. Warrant in action for — In an action to foreclose 
 a lien upon a chattel, if the plaintiff is not in possession of 
 the chattel, a warrant, commanding the marshal to seize 
 the chattel, and safely keep it to abide the judgment, may 
 be issued in like manner, as a warrant of attachment may 
 be issued, in an action founded upon a contract, and the 
 provisions of law applicable to a warrant of attachment, 
 issued out of the court apply to a warrant issued as pre- 
 scribed in this act, and to the proceedings to procure it, and 
 after it has been issued, except as otherwise specified in the 
 judgment. 
 
 Note to section 138. 
 The first .half of this section is taken from section 1330 of the Con- 
 solidation Act (Laws 1882, chap. 410), which is taken from section 
 1740 of the Code of Civil Procedure; the rest of section 1330 is sub- 
 stantially enacted into section 141 of this act. 
 
 § 139. Action on conditional sale agreement, et cetera; how 
 brought. — • Ko action shall be maintained in this court, which 
 arises on a written contract of conditional sale of personal 
 property; a hiring of personal property, where title is not 
 to vest in the person hiring until payment of a certain sum; 
 or a chattel mortgage made to secure the purchase price of 
 chattels; except, an action to foreclose the lien, as provided 
 in this article. For the purpose of this section an instru- 
 ment in writing as above stated shall be deemed a lien upon 
 a chattel. Provided, however, that an action may be main- 
 tained to recover a sum or sums due and payable for in- 
 stalment, payment or hiring, but in such cases no order of 
 arrest shall issue. 
 
 Notes to section 139. 
 
 This section is new. It regulates the enforcement of a lien by action 
 in this court, while, by section 142 of this act, it does not interfere 
 with the provisions of Laws 1897, chapter 418, sections 80 to 85, for 
 the enforcement of the lien by a sale of the property and prohibits an
 
 238 Action to Foreclose Lieut. § 14:0. 
 
 order of arrest to issue in such an action. Section 140 of this act 
 however provides that in a case of willful or malicious disposal of, or 
 concealment of, the property, an order of arrest may be granted. 
 
 Conditional vendor and vendee. — The former means the person con- 
 tracting to sell goods upon condition that the ownership thereof is to 
 remain in such person until such goods and chattels arc fully paid for 
 or until the occurrence of any future event or contingency; the term 
 " conditional vendee," when so used, means the person to whom such 
 goods and chattels are so sold. Laws 1897, chap. 418, § 110. 
 
 Conditions and reservations in contracts for sale of goods and chattels 
 are void as against subsequent purchasers, pledgees, or mortgagees in 
 good faith, and as to them the sale shall be deemed absolute, unless 
 such contract of sale, or a true copy thereof, are filed. Laws 1897, 
 chap. 418, § 112. By section 115 certain articles are excluded, such 
 as law books, pianos, organs, safes, etc. See Ryan v. Wallowitz, 25 
 Misc. Rep. 498; Rodney, etc. v. Stewart, 57 Hun, 545; Grant v. Griffith, 
 39 App. Div. 107; Hopkins v. Davis, 23 App. Div. 235. 
 
 §140. Judgment; order of arrest; body execution.- — In an 
 action of foreclosure, as provided in the last section, the 
 plaintiff may allege that the defendant wilfully or ma- 
 liciously disposed of or concealed the property or a part 
 thereof, covered by the instrument on which suit is insti- 
 tuted, in which case the court may grant an order of arrest 
 in the manner provided in article one of this title, and upon 
 such allegation being proved on the trial, execution against 
 the person shall issue, if the provisions of this act relating 
 to indorsement upon the summons have been complied with, 
 unless the property awarded by the judgment is produced 
 by the defendant to satisfy the execution and levy, when 
 made as provided in this article. 
 
 Upon judgment being rendered, as prescribed in this 
 article under the provisions of this or the last preceding 
 section, and execution issuing thereon, the property subject 
 to levy must be produced or possession made readily avail- 
 able at the time of such levy, to satisfy the execution in the 
 manner prescribed in the judgment, and on failure so to do, 
 an execution against the person shall issue, provided the 
 provisions of this act relating to indorsement upon the sum- 
 mons have been complied with, on the return of the marshal 
 having the execution made to the clerk of the court in the
 
 §§ 141, 112. Action to Foreclose Lien. 239 
 
 district in which the judgment is docketed, to the effect that 
 such property is not available for levy and execution. 
 
 Notes to section 140. 
 
 This section is new. See also § 271 and § 275, as to "body execu- 
 tions." 
 
 Conversion; boarding-house-keeper's lien; judgment. — An action to 
 enforce a boarding-house-keeper's lien upon property of a boarder 
 which he has clandestinely removed is one for conversion of personal 
 property within the meaning of subdivision 2 of section 2895 of the 
 Code, and the justice is bound to insert in the judgment the liability 
 of the defendant to arrest upon execution. Babcock v. Smith, 47 N. Y. 
 St. Rep. 118; s. c, 19 N. Y. Supp. 817. 
 
 § 141. Judgment, et cetera. — In an action to foreclose a 
 lien, the final judgment in favor of the plaintiff, must 
 specify the amount of the lien, and direct a sale of the chat- 
 tel to satisfy the same and the costs, if any, by a marshal, 
 in like manner, as where a marshal sells personal property 
 by virtue of an execution, and the application by him of the 
 proceeds of the sale, less his fees and expenses, to the pay- 
 ment of the amount of the lien, and the costs of the action. 
 It must also provide for the payment of the surplus to the 
 owner of the chattel, and for the safe keeping of the sur- 
 plus, if necessary, by the clerk of the court, until it is 
 claimed by him. If a defendant upon whom the summons 
 is personally served, is liable for the amount of the lien, or 
 for any part thereof, it may also award payment accord- 
 ingly. 
 
 Note to section 141. 
 
 This section is taken from the latter part of section 1330 of the 
 Consolidation Act (Laws 1882, chap. 410), which made section 1739 
 of the Code of Civil Procedure applicable to this court. It is also 
 taken from section 1740 of said Code. 
 
 § 142. Application of this article. — This title does not 
 affect any existing right or remedy to foreclose or satisfy 
 a lien upon a chattel, without action, and it does not apply 
 to a case, where another mode of enforcing a lien upon a 
 chattel is specially prescribed by law.
 
 240 Pleadings. 
 
 Notes to section 142. 
 
 This section is the same as section 1741 of the Code of Civil Pro- 
 cedure. 
 
 Enforcement of liens on personal property. — See Laws 1897, chap. 
 418, §§ 80 to 85, an act in relation to liens, constituting chapter 49 of 
 the General Laws, does not preclude any other remedy by action to 
 enforce a lien against personal property. 
 
 Note. — There are no sections 143 or 144. 
 
 TTTIiE IV. 
 
 Pleadings. 
 
 Section 145. Pleadings on joinder of issue. 
 
 146. What causes of action may be joined in the same com- 
 
 plaint. 
 
 147. Plaintiff to prove his case, — except on contract where 
 
 there is a verified complaint. 
 
 148. Defendant may offer to allow judgment or compromise. 
 
 149. Complaint. 
 
 150. Answer; what to contain. 
 
 151. Counterclaim defined. 
 
 152. Rules respecting the allowance of counterclaim. 
 
 153. Judgment when demand or counterclaim are equal, or 
 
 unequal. 
 
 154. For affirmative relief. 
 
 155. Counterclaim when defendant is sued in a representative 
 
 capacity. 
 
 156. When plaintiff is an executor or administrator. 
 
 157. Counterclaim where amount is in excess of courts' juris- 
 
 diction. 
 
 158. When defendant may demur. 
 
 159. Demurrer to complaint must specify grounds of objection. 
 
 160. Demurrer to all or part of the complaint; may answer to 
 
 part. 
 
 161. Formal reply or demurrer to counterclaim not necessary. 
 
 162. When plaintiff may demur to answer. 
 
 163. Requirements concerning verified pleadings. 
 
 164. Verification; how and by whom made. 
 
 165. Exhibition of accounts at instance of adverse party may 
 
 be ordered 
 
 166. Amendment of pleadings. 
 
 167. Private statute ; how pleaded. 
 
 168. Judgments ; how pleaded. 
 
 169. Conditions precedent ; how pleaded.
 
 § 145. Pleadings. 241 
 
 Section 170. Pleadings to be liberally construed. 
 
 171. Immaterial variance in pleading to be disregarded. 
 
 172. Material variances; how provided for. 
 
 173. What to be deemed a failure of proof. 
 
 174. Partial defenses. 
 
 175. Complaint in actions by or against corporations. 
 
 176. When proof of corporate existence unnecessary. 
 
 177. Misnomer, when waived. 
 
 178. Pleadings in actions on bastardy bonds. 
 
 179. Answer of title. 
 
 180. Defendant in answer of title to deliver undertaking. 
 
 181. New action to be brought in supreme court. 
 
 182. Old action ; thereupon discontinued. 
 
 183. Penalty for failure to deliver undertaking. 
 
 184. Title appearing from plaintiff's own showing. 
 
 185. Same cause of action, and defense in new action. 
 
 186. Answer of title interposed as to only one or more of 
 
 several defenses ; proceedings thereupon. 
 
 187. Interpleader by order in certain cases. 
 
 § 145. Pleading on joinder of issue. — Pleadings in the 
 municipal court of the city of Xew York, may be oral or 
 written, verified or unverified, and include a complaint, an- 
 swer or demurrer. 
 
 1. Where the action is commenced by the service of a 
 summons only, the pleadings may be oral, and the substance 
 thereof shall be endorsed upon the summons and entered 
 in the docket book of the court. Issue must be joined on 
 the return day of the summons, except as otherwise ex- 
 pressly prescribed in this act. The court may, however, in 
 its discretion, order a written bill of particulars, with or 
 without verification, to be filed by the plaintiff, or by the 
 defendant interposing a counterclaim. 
 
 2. In all cases where a written complaint, verified or un- 
 verified, is served with the summons, a written answer, 
 verified if the complaint be verified, or a written demurrer, 
 must be filed and issue joined on the return day, except as 
 otherwise expressly prescribed in this act, unless the court 
 further extends the time to answer or demur. 
 
 3. Where a demurrer is interposed and disallowed, the 
 court must, notwithstanding the return day has passed, 
 grant leave to plead as if no demurrer had been interposed, 
 
 16
 
 242 Pleadings. § 145. 
 
 with or without costs, in an amount within the sum allowed 
 as costs in the action; but the time to file said pleading 
 shall not be extended longer than eight days from the time 
 the decision on the demurrer is rendered, unless on the con- 
 sent of the parties. 
 
 4. If the court deems the demurrer well founded, it must 
 permit the pleading to be amended; and if the party fails 
 so to amend, the defective pleading or part of a pleading 
 demurred to must be disregarded; and the court may, in 
 its discretion, extend the time for pleading, in the manner 
 prescribed in the preceding subdivision. 
 
 5. Where, on the return day of a summons, a person 
 appears specially for the purpose of raising a question not 
 involving the merits of the action, the court may, in its dis- 
 cretion, reserve the decision on the question raised and ex- 
 tend the time to plead, in the manner prescribed in subdi- 
 vision three of this section. 
 
 6. Nothing herein shall be construed to prevent the court 
 ordering a bill of particulars in a proper case, whether the 
 pleadings be written or oral. 
 
 Notes to section 145. 
 
 This section is new and is made up mainly from section 1346 of 
 the Consolidation Act (Laws 1882, chap. 410), which is derived from 
 section 3207 of the Code of Civil Procedure, and which latter sec- 
 tion made section 3126 of said Code applicable to this court. This 
 section is also made up from the numerous sections mentioned in 
 section 1347 of the Consolidation Act, which made section 2940 of 
 Code of Civil Procedure, entitled' " General rules of pleading," which 
 applies to justices' courts, applicable to this court. The provision as 
 to indorsement of the summons and entry in the docket in subdivision 
 1 is taken from section 2938 of said Code, applicable to justices' courts. 
 
 It will be observed that while sections 150 to 158 make provisions 
 for a counterclaim by the defendant, there is no provision for a reply 
 contained in the preamble of this section, which mentions pleadings 
 in this court omitting a reply. Section 161 expressly declares, "A 
 formal reply to a counterclaim is not necessary," and that it shall 
 be deemed to be denied by the plaintiff. This is in accordance with 
 Clinchy v. Apgar, 16 Misc. Rep. 374, where it was held a reply to a 
 counterclaim in this court is not required. 
 
 Pleadings to be in English; abbreviations. — See Code Civ. Proc, §22. 
 
 Pleading, what is. — Pleading is the statement in the logical and 
 legal form of the facts which constitute the plaintiff's cause of action,
 
 § 145. Pleadings. 243 
 
 or the defendant's ground of defense; it is the formal mode of alleging 
 on the record that which would be the support or the defense of the 
 party in evidence. Crane v. Hardman x 4 E. D. Smith, 448. 
 
 Construction. — In matter of substance a pleading of doubtful mean- 
 ing must be construed most strongly against the pleader. Browne v. 
 Empire Type-Setting Machine Co., 44 App. Div. 598. See also Booz 
 v. Cleveland T. F. Co., 45 App. Div. 593, 61 N. Y. Supp. 407. 
 
 In this court pleadings are not necessarily so detailed and precise 
 as required in the other courts. Matters of substance, stated in gen- 
 eral terms and aided by a bill of particulars, which fully apprise the 
 defendant of what is claimed, will generally suffice, when no objection 
 is made that the complaint lacks particularity. Crane v. Hardman, 
 4 E. D. Smith, 448. 
 
 Great latitude is allowed in pleadings in this court, and they are 
 liberally construed. Ross v. Hamilton, 3 Barb. 609. 
 
 The court will give a liberal construction to pleadings, even on de- 
 murrer. Ketteltas v. Meyers, 19 N. Y. 231; Blackman v. Thomas, 28 
 N. Y. 67; Allen v. Paterson, 7 N. Y. 476. 
 
 A liberal interpretation might be given to pleadings to sustain ver- 
 dicts and judgments, when parties have not been misled or injustice 
 done. Graves v. White, 59 N. Y. 156. 
 
 Answers are liberally construed in favor of counterclaims. Hack- 
 ford v. N. Y. C. R. R. Co., 6 Lans. 380. 
 
 Bill of particulars. — By subdivision 1 of this section the court may 
 order a written bill of particulars as there specified, and by subdivision 
 6, the court may order a bill of particulars in any proper case whether 
 the pleadings be written or oral. By section 165, "Exhibition of ac- 
 counts at instance of adverse party," may be ordered. 
 
 Bills of particulars are of two kinds; one appertains to an account 
 between parties, the other to a claim of one party. The rules govern- 
 ing the right to one or the other are different. Giles v. Betz, 15 Abb. 
 Pr. 285, refers to the latter; Williams v. Shaw, 4 Abb. Pr. 209, to the 
 former. 
 
 They are appropriate in all descriptions of actions where the cir- 
 cumstances are such that justice demands that a party should be 
 apprised of the matters for which he is to be put to trial, with greater 
 particularity than is required by the rules of pleading, and the prin- 
 ciple upon which such orders are granted is the advancement of 
 justice and the preventing of surprise at the trial. Tilton v. Beecher, 
 59 N. Y. 176. 
 
 Amendment. — A justice of this court may allow an amendment of 
 the bill of particulars at the trial. Dermody v. Flesher, 22 Misc. Rep. 
 348; s. c, 49 N. Y. Supp. 150. 
 
 Conversion of personal property. — A bill of particulars will be ordered 
 in such cases. Humphrey v. Cortelyou, 4 Cow. 54; Robinson v. Conner,
 
 244 Pleadings. § 145. 
 
 13 Hun, 291. The requisites thereof. Schile v. Brokhahne, 41 N. Y. 
 Super. (J. & S.) 353. 
 
 Effect is to limit the testimony to the items contained in the bill, and 
 to prevent the introduction of proof of any matters not so contained. 
 Kriess v. Seligman, 8 Barb. 439; s. c, 5 How. 425. 
 
 Form. — The bill of particulars need not be in any particular form. 
 Williams v. Allen, 7 Oow. 316. It need not state the names of the par- 
 ties to the action. Gage v. Carey, 9 Cow. 44. 
 
 The date of each transaction should be stated as accurately as pos- 
 sible. If the precise day is not remembered, the month or year must 
 be given. Humphrey v. Cortelyou, 4 Cow. 54; Kellogg v. Paine, 8 How. 
 329. The time stated is material in a bill of particulars. Quin v. 
 Astor, 2 Wend. 577; Moron v. Morrissy, 28 How. 100; Schile v. Brok- 
 hahne, 41 N. Y. Super. (J. & S.) 353. 
 
 Knowledge. — A bill of particulars will not be ordered where the items 
 are better known to the party applying for it than to the other party. 
 Young v. Be Mott, 1 Barb. 30, 4 Abb. Pr. 209, 15 Johns. 222; Power v. 
 Hughes, 39 N. Y. Super. (7 J. & S.) 482. 
 
 Non-compliance. — An order should be made by the justice, precluding 
 the party not furnishing the bill of particulars, or account, from 
 giving evidence or proof thereof, before the trial commences. Kellogg 
 v. Paine, 8 How. 329. 
 
 Object of a bill of particulars is that the other party should not be 
 taken by surprise from the generalities of the pleadings and come to 
 trial unprepared as to the nature of plaintiffs claim. Stevens v. 
 Weob, 12 Daly. 88; Dwight v. Germania Ins. Co., 84 N. Y. 493. 
 
 Special contract. — It will not be granted in an action by an attorney 
 for fees claimed under special contract. Stillwell v. Hernandez, 7 
 Daly, 485. 
 
 Variance between proof and bill. — As the object of a bill of particulars, 
 is to prevent a surprise on the trial, a variance between the proof and 
 the bill will be disregarded, if the adverse party has not been mis- 
 led. Thus, if the bill of particulars has advised the adverse party of 
 the evidence which is to be offered, so that there can be no mistake as 
 to the preparation to be made to resist the claim, the court will not 
 permit the party furnishing the bill to be prejudiced by a variance 
 between the bill and the proof. Smith v. Hicks, 5 Wend. 48 ; Dubois 
 v. Delaware Canal Ca., 12 Wend. 334; Seaman v. Lord, 4 Bosw. 337. 
 
 For full notes and cases, in fact a " brief." on bills of particulars, 
 the student and practitioner is referred to 2 Civ. Code Rep. 240, etc. 
 
 Reply. — There is no provision for a reply to a counterclaim in this 
 act. See note to this section above, and § 161. 
 
 Service of pleading. — Where last day falls on Saturday half holiday 
 service may he made on Monday. Reynolds v. Palen, 20 Abb. N. C. 11. 
 Compare Nichols v. Kelsey, 20 Abb. N. C. 14.
 
 § 146, Subd. 1. Pleadings. 245 
 
 Verification. — Where the amended complaint is verified the amended 
 answer must also be verified, and where it is not, judgment may 
 be entered thereon. Thum v. Iserman, 25 Misc. Rep. 793, 54 N. Y. 
 Supp. (88 St. Rep.) 559. 
 
 Unverified answer; motion to dismiss complaint. — Although defend- 
 ant does not serve a verified answer, he may move to dismiss the com- 
 plaint, as not stating a cause of action, and such motion is treated 
 as a demurrer. Morris v. Eunken, 40 App. Div. 129, 57 N. Y. Supp. 
 712. 
 
 § 146. What causes of action may be joined in the same 
 complaint. — The plaintiff may unite in the same complaint, 
 two or more causes of action, where they are brought to 
 recover as follows : 
 
 Notes to section 146. 
 
 This section is made up from sections 484 and 2937 of the Code of 
 Civil Procedure. The first relates to causes of action that may be 
 joined in the Supreme Court, the second to those in justices' courts. 
 
 The preamble is substantially the same as section 484 of said Code. 
 Subdivision 1 is the same as subdivision 1 of that section and the 
 same as subdivision 2 of section 2937 of said Code. 
 
 Subdivision 2 is the same as subdivision 3 of said section 2937. 
 
 Subdivision 3 is the same as subdivision 7 of said section 484. 
 
 Subdivision 4 is the same as subdivision 8 of said section 484. 
 
 Subdivision 5 is the same as subdivision 9 of said section 484. 
 
 Subdivision 6 is substantially the same as subdivision 10 of section 
 484. 
 
 The rest of section 146, under consideration, is taken from the rest 
 of sections 484 and 2937 of the said Code, both being similar. 
 
 Causes of action to be separately stated and numbered. — Where the 
 complaint sets forth two or more causes of action, the statement of 
 the facts constituting each cause of action must be separate and 
 numbered. Code Civ. Proc, § 483. 
 
 Parties who may be joined. — See § 42. 
 
 Application of this article to defendants jointly liable. — See § 43. 
 There is no "article," it is included in title II, "Actions; Summons; 
 Parties," which contains no articles. 
 
 1. Upon contract, express or implied. 
 
 Notes to section 146, subdivision 1. 
 
 Administratrix and individually. — There may be united in the same 
 complaint by an administratrix an indebtedness to her as adminis-
 
 246 Pleadings. § 146, Subd. 2. 
 
 tratrix under contract by intestate, and one on contract with herself 
 as administratrix. Valleau v. Cahill, 1 City Ct. Rep. 47. 
 
 Breach of bond and assignment. — A complaint alleging the giving by 
 \Y. & K. of a bond for the performance of a contract, on which Purvis 
 was surety, and a breach of the condition thereof, and also alleging that 
 \V. assigned his interest to K., and was released, and that Purvis as- 
 sented to the assignment and agreed that his obligation as surety 
 should continue to be the same for K. as it was for W. & K., states 
 but one cause of action, viz.: For breach of the bond. Leknen v. 
 Purvis, 29 N. Y. St. Rep. 779, 55 Hun, 535. 
 
 Contract and tort. — Cannot be united. Raynor v. Brannan, 40 Hun, 
 60. See, however, Grimshaw v. Woodfall, 15 N. Y. Supp. 857, 48 N. Y. 
 St. Rep. 299; Batches v. Burke, 34 Misc. Rep. 189. 
 
 Conversion and freight. — A claim for damages for loss or conversion 
 of goods by a carrier, and to recover an excess of freight paid, may 
 be united. Adams v. Bissell, 28 Barb. 382. 
 
 Money lent and fraud. — A count for money lent, another for ser- 
 vices, and a third alleging fraud in inducing the payment of the 
 money, and the rendering of the services is no misjoinder. Campbell 
 v. Wright, 21 How. 9; Roth v. Palmer, 27 Barb. 652. 
 
 Parties. — Causes of action on different contracts cannot be joined in 
 the same action, unless all parties are affected by each. Xichols v. 
 Drew, 19 Hun. 490. 
 
 Promissory note and collateral. — A cause of action at law on a prom- 
 issory note, and one for the foreclosure of the plaintiff's lien upon 
 security deposited as collateral to such note, may be united. Farmers 
 & Mechanics' \dt. Bank of Buffalo v. Rogers, 17 N. Y. St. Rep. 381. 
 
 Several breaches. — Several breaches of one. contract, although they 
 relate to different portions of the contract, may be set forth in one 
 complaint as different causes of action. Madge v. Puig, 12 Hun, 15. 
 
 Special damages. — An allegation setting up special damages arising 
 from the breach of contract sued for does not constitute a separate 
 cause of action. McKesson v. Russian Co., 27 Misc. Rep. 96, 57 N. Y. 
 Supp. (91 St. Rep.) 599. 
 
 2. For personal injuries, and injuries to property, or 
 either. 
 
 Notes to section 146, subdivision 2. 
 
 Injuries to personal property and fraud. — Causes of action for injuries 
 to personal property, one for conversion of personal property may 
 be united with one for false and fraudulent representations, inducing 
 plaintiff to execute a bond and mortgage on his real estate, to secure 
 its payment in favor of a third person, to whom defendant delivered 
 them for a consideration. De Silver v. Holden, 50 X. Y. Super. 236, 
 6 Civ. Proc. Rep. 121.
 
 § 140, SuiiD*. o, 5. Pleadings. 247 
 
 Negligence and conversion. — A count for injury to a horse by excessive 
 driving is properly joined with a count for conversion of a horse. 
 Summerville v. Mctcalf, 15 Week. Dig. 154. 
 
 Counterclaim. — Causes of action for injuries to person and to prop- 
 erty can be united in one counterclaim. Heigel v. Willis, 20 N. Y. St. 
 Rep. 639, 50 Hun, 588. 
 
 3. Chattels, with or without damages, for the taking or 
 detention thereof. 
 
 Note to section 146, subdivision 3. 
 
 Replevin. — By section 131 of this act, "article III, replevin." §§ 95 
 to 131, cause of action for replevin may be united with any other 
 cause of action specified in section 146 of this act. 
 
 4. Upon claims against a trustee, by virtue of a contract, 
 or by operation of law. 
 
 5. Upon claims arising out of the same transaction or 
 transactions connected with the same subject of action, and 
 not included within one of the foregoing subdivisions of this 
 section. 
 
 6. For penalties incurred under a statute of the state, or 
 an ordinance of the city of ~Rew York. 
 
 But it must appear, upon the face of the complaint, that 
 all the causes of action, so united, belong to one of the fore- 
 going subdivisions of this section; that they are consistent 
 with each other; that they require the same judgment; and 
 except as otherwise prescribed by law, that they affect all 
 the parties. Where a cause of action for which a defendant 
 might be arrested is united with a cause of action for which 
 he cannot be arrested, an execution against the person of the 
 defendant cannot be issued upon the judgment. 
 
 Notes to section 146, subdivision 5. 
 
 Same transaction. — Causes of action belonging to different subdivi- 
 sions may be united in same complaint, if they arise out of the same 
 transaction. Polley v. Wilkisson, 5 Civ. Proc. Rep. 135. See Sulli- 
 van v. N. T., N. H. & H. R. R. Co., 1 Civ. Proc. Rep. 285. 
 
 Two causes of action cannot be considered as arising out of the 
 same transaction, merely because the same act renders the defendants
 
 248 " Pleadings. § 147. 
 
 liable in both. Taylor v. Metropolitan El. R. R. Co., 52 X. Y. Super. 
 299. 
 
 Ln juries to the person and to the property of plaintiff by the same 
 tort are " claims arising out of the same transaction," which may be 
 united in the same complaint. Rosenberg v. Staten Island Ry. Co., 14 
 X. V. Supp. 476. 
 
 A complaint alleged that the defendant, for a valuable consideration, 
 agreed with the plaintiffs to carry from Detroit to Rochester certain 
 trunks, but that the defendant so negligently carried such property 
 that the same was lost and not delivered to the plaintiffs. A demurrer 
 was interposed upon the ground that two causes of action, one on 
 contract and the other for injuries to personal property, had been 
 improperly joined. Held, that but one cause of action was stated — 
 negligence of the defendant; and that in any event the causes of action 
 arose out of the same transaction, and the facts might be alleged. 
 Rothschild v. The G. T. R. R. Co., 38 N. Y. St. Rep. 869. 
 
 Causes of action must affect all parties. — The causes of action to be 
 joined must be in favor of all the plaintiffs, and against all the defend- 
 ants, and must belong to the same class. Enos v. Thomas, 4 How. 48. 
 
 But it is not necessary that various causes of action in one com- 
 plaint should affect all the parties equally. Vermeule v. Beck, 15 
 How. 333; Earle v. Scott, 50 How. 506. See Van Wagenen v. Kemp, 
 7 Hun, 328. 
 
 To justify the joinder of two or more causes of action in the same 
 complaint, all the causes of action must affect all the defendants ; 
 and if. in an action against two, one of the causes of action affects 
 only one of the defendants, a demurrer will lie. It is no answer to 
 the demurrer that the statements of the two causes of action are 
 intermingled, instead of being separate. Kelly v. Newman, 62 How. 
 156. 
 
 § 147. Plaintiff to prove his case, except on contract where 
 there is a verified complaint. — If a defendant fails to appear 
 and answer, the plaintiff cannot recover without proving his 
 case, except that where the action is on a contract, express 
 or implied, and a copy of a verified complaint was served 
 on defendant at the time of the service of the summons, 
 judgment may be taken as demanded without further proof. 
 
 Notes to section 147. 
 
 This section is taken from section 2891 of the Code of Civil Pro- 
 cedure relating to justices' courts. Section 1347 of the Consolidation 
 Act (Laws 1882, chap. 410), makes said section of the Code appli- 
 cable, and was constructed from Laws 1857, chap. 344, § 48.
 
 § 147. Pleadings. 249 
 
 This section is in accordance with the decisions in the cases of 
 Hurry v. Coffin, 2 Civ. Proc. Rep. 319; Vorzimer v. Shapiro, 6 Misc. 
 Rep. 143; s. c, 55 St. Rep. 693, and 26 N. Y. Supp. 53; Whitman v. 
 Hamilton, 27 Misc. Rep. 198, 57 N. Y. Supp. 760. 
 
 Action to foreclose a lien upon a chattel, the judgment must specify- 
 as provided in section 141, and is to be enforced as provided in section 
 140. 
 
 Adjournment; default. — The court, having adjourned the cause from 
 the return day, has no power to render judgment in the interim aa 
 upon defendant's default in answering. Whitman, etc. v. Hamilton, 27 
 Misc. Rep. 198, 57 N. Y. Supp. 760. 
 
 Alias summons; return of marshal. — An alias summons cannot prop- 
 erly be issued by the clerk, except upon a return or affidavit by the 
 marshal that he could not find the defendant so as to serve him with 
 the first summons, and a judgment founded on an alias summons issued 
 without such return or affidavit is void. Loeb v. Smith, 24 Misc. Rep. 
 200, 52 N. Y. Supp. 677. 
 
 Indorsement upon the summons. — Judgment and execution against the 
 person can only be had if the provisions of this act relating to indorse- 
 ment upon the summons (§§ 38, 39) has been complied with. See § 140. 
 
 Attorney. — Service of summons and complaint on defendant's attor- 
 ney, not followed by appearance on the return day, gives no jurisdiction, 
 and judgment thereupon entered as by default is void. Goldberg v. 
 Fowler, 29 Misc. Rep. 328. 
 
 Deceit. — Judgment in an action for deceit upon a written complaint 
 without proof is unauthorized and improper. Vorzimer v. Shapiro, 26 
 N. Y. Supp. 53. 
 
 Mechanic's lien. — Proceedings on return of summons. Judgment by 
 default. See § 3406, Code Civ. Proc. 
 
 No verified complaint having been served with the summons, plaintiff 
 must prove the case to take judgment. Whitman, etc. v. Hamilton, 27 
 Misc. Rep. 198, 55 N. Y. Supp. 760; Wallot v. Weber, 30 Misc. Rep. 
 632, 62 N. Y. Supp. 756. 
 
 Unauthorized. — The summons issued was not in the proper name of 
 the defendant, nor stated that the name was a fictitious one ; defendant 
 did not appear personally, but his wife, an ignorant foreigner, was 
 present on the return day apparently to explain that he was ill, as in 
 fact he was,- Held, that she could not be regarded as his agent under 
 section 1294 of the Consolidation Act, and an amendment of the sum- 
 mons was irregular and did not justify entry of a judgment by default 
 against defendant in his proper name. Stromberg v. Carnese, 35 Misc. 
 Rep. 289, 71 N. Y. Supp. 746. 
 
 Omission to plead is not an admission of plaintiff's demand, he must 
 establish it by testimony the same as if issue had been joined. Blair 
 v. Bartlett, 75 N. Y. 150.
 
 250 Pleadings. § 148. 
 
 § 148. Defendant may offer to allow judgment or compro- 
 mise. — The defendant may, upon the return of the sum- 
 mons, and before answering - , file with the court a written 
 offer to allow judgment to be taken against him for a sum 
 of money, or for property therein specified, with costs. If 
 there are two or more defendants, and the action can be 
 severed, a like offer may be made by one or more of the 
 defendants, against whom a separate judgment may be taken. 
 If the plaintiff thereupon, before taking any other pro- 
 ceeding in the action, files with the court a written accept- 
 ance of the offer, the court must render judgment accord- 
 ingly. If an acceptance is not filed, the offer cannot be 
 given in evidence upon the trial; but, if the plaintiff fails 
 to obtain a more favorable judgment, he cannot recover 
 costs from the time of the offer, and must pay the defend- 
 ant's costs from that time. But a defendant may instead 
 of such written offer, deposit the amount of his offer, if a 
 sum of money, with the clerk of the court, with like effect. 
 
 Notes to section 148. 
 
 This section is taken from section 2892 of the Code of Civil Pro- 
 cedure, applicable to justices' courts, which was made applicable to thi3 
 court by section 1347 of the Consolidation Act (Laws 1882, chap. 410), 
 and contains a provision excepting an action to recover a chattel. This 
 has been omitted from the present section, making it accord with sec- 
 tion 738 of the Code of Civil Procedure, applicable to courts of record, 
 thus permitting an offer to allow judgment to be taken " for property 
 therein specified." The word " therein " however refers to the " sum- 
 mons," as expressed in this section, which never specifies property, and 
 doubtless the complaint or an affidavit for replevin is implied. The 
 provision at the end of the section allowing a deposit of a sum of money 
 with the clerk is new, and is taken from section 732 of the Code of Civil 
 Procedure, applicable to courts of record. Heretofore there was no 
 provision authorizing a tender or deposit after suit brought. See Ellen- 
 stein v. Klee, 12 Misc. Rep. 112. 
 
 When offer may be made. — The words "upon the return of the sum- 
 mons and before answering " do not limit the authority to the return 
 day specified in the process, but it may be exercised immediately after 
 the service and actual return thereof. Fowler v. Haynes, 91 N. Y. 346. 
 
 Removal and appeal. — As to effect of offer in the court below after a 
 removal on appeal, see Mock v. Saile, 52 Hun, 198, 23 N. Y. St. Rep. 
 307, 17 Civ. Proc. Rep. 121.
 
 § 149. Pleadings. 251 
 
 Oral acceptance. — In the case of Beecher v. Kendall, 14 Hun. 327, 
 an oral acceptance of the writter offer to allow judgment before the 
 judgment entered upon his docket was held sufficient. 
 
 Offer to pay into court in mechanic's lien cases. — See Code Civ. Pro., 
 § 3413. 
 
 § 140. Complaint. — The complaint must state in a plain 
 and direct manner the facts, constituting' the cause of action. 
 
 Notes to section 149. 
 
 This section is the same as Lection 2036 of the Code of Civil Procedure, 
 applicable to justices' courts, which was made applicable to this court 
 by section 1347 of the Consolidation Act (Laws 1882, chap. 410). 
 
 Account cr instrument fcr the payment of money cnly. — There is no 
 provision in this act as to pleading on an account or instrument for 
 the payment of money only, and as section 20 makes the provisions of 
 the Code cf Civil Procedure applicable when they are not in conflict 
 with the provisions of this act, we refer the practitioner to sections 531, 
 534, and 2941 upon that subject. 
 
 Account stated. — The complaint in an action upon an account stated 
 is sufficient if it sets forth the fact that the account was stated between 
 the parties, that a certain sum was found due from one to the other, 
 and that such sum has not been paid. Moss v. Lindblom, 39 App. Div. 
 5S6, 57 X. Y. Supp. (91 St. Rep.) 703. 
 
 Bills and notes. — Where a copy of the instrument sued upon is set 
 forth in the complaint and that instrument on its face shows the ex- 
 istence of a valid consideration, no other averment of consideration need 
 be made. Wood v. Knight, 35 App. Div. 21. 54 N. Y. Supp. (88 St. 
 Rep.) 4GG. 
 
 The complaint in an action upon a note which is lost need not allege 
 the loss. Dupignac v. Quick, 26 Misc. Rep. 872, 5(3 X. Y. Supp. (90 
 St. Rep.) 385. See also § 1917, Code Civ. Proc., "Action upon lost 
 negotiable paper." 
 
 The complaint in an action by an indorsee of a note need not allege 
 that it was indorsed to plaintiff before maturity. McGrath v. Pitkin, 
 20 Misc. Rep. 862. 56 N. Y. Supp. (90 St. Rep.) 398. 
 
 The allegation that a promissory note was indorsed imports its de- 
 livery by the indorser. New York Marbled Iron Works v. Smith, 4 
 Duer, 362. 
 
 In an action against the maker, if the complaint alleges that the 
 note was payable to the maker's order, tha+ he indorsed it, or that the 
 amount is due from him to the plaintiff, is sufficient, without also 
 alleging that the note belongs to the plaintiff. 15 Abb. Pr. 347, n. ; 
 Genet v. Sayre, 12 Abb. Pr. 347.
 
 252 Pleadings. § 149. 
 
 In the complaint upon a note drawn payable at a particular bank, it 
 is not necessary, as against the maker, to aver demand of payment at 
 the bank. Hill v. Place, 5 Abb. Pr. (N. S.) 18; s. c, 36 How. Pr. 26. 
 
 In an action on a promissory note it is sufficient to allege that pay- 
 ment has been demanded and refused, without averring subsequent non- 
 payment. Ahr v. Marx, 44 App. Div. 391, 60 N. Y. Supp. 1091. 
 
 The complaint in an action on a promissory note brought against 
 the maker need not allege that the note was presented and payment 
 demanded. Wells v. Simpson, 29 Misc. Rep. 665, 61 N. Y. Supp. 56. 
 
 Benefit society. — A complaint in an action on a certificate of a benefit 
 society need only allege that the insured and the beneficiary duly ful- 
 filled all the conditions of the certificate, on their part to be fulfilled, 
 without alleging that the insured was in good standing at the time 
 of his death, or that there is any " provident fund " out of which the 
 benefit can be paid, the good standing of the insured at the time of 
 the issue of the certificate being presumed to have continued until the 
 contrary is shown. Ellis v. National Provident Union, 50 App. Div. 
 255, 63 N. Y. Supp. 1012. 
 
 Bond. — The specific breaches must be specified in the complaint. 
 Western Bank v. Sherwood, 29 Barb. 383. 
 
 Causes of action to be separately stated and numbered. — Where the 
 complaint sets forth two or more causes of action, the statement of the 
 facts constituting each cause of action must be separate and numbered. 
 Code Civ. Proc, § 483. 
 
 Chattel and damages where the chattel was injured while in defend- 
 ant's possession may be recovered. In that case he must set forth 
 the facts in his complaint and demand judgment for damages accord- 
 ingly. See § 119. 
 
 A complaint in an action for the wrongful detention of chattels, 
 which alleges that the plaintiff's intestate at the time of her death was 
 the owner of, and entitled to the immediate possession of, the chattels, 
 and that the plaintiff was duly appointed her administrator; that the 
 defendants are in possession of the chattels, and that the plaintiff has 
 demanded their delivery to him, and that such demand has been re- 
 fused, sufficiently complies with the requirement of section 1721 of the 
 Code of Civil Procedure that such a complaint shall set forth the facts 
 showing that the defendant's possession is unlawful. Rogers v. Conde, 
 67 App. Div. 131. 
 
 Conclusions of law not to be pleaded. — City of Buffalo v. Holloway, 
 7 N. Y. 493, 498; Ramsay v. Erie R. R. Co., 38 N. Y. 193, 214. 
 
 An allegation that a party failed to fulfill his obligations is a con- 
 clusion of law. Van Schaick v. Winne, 16 Barb. 95. 
 
 So also is an allegation of duty. City of Buffalo v. Holloway, 7 
 N. Y. 493. 
 
 Also, that a specified act was illegal or contrary to statute. Smith 
 V. Lockwood, 13 Barb. 209; s. c, 10 N. Y. Leg. Obs. 232.
 
 § 149. Pleadings. 253 
 
 Or, that the act was done pursuant to statute. People v. McCumber, 
 27 Barb. 632; s. c, 15 How. 186. 
 
 Or, that a party is not entitled to a thing; or, that a party is in- 
 debted. Drake v. Cockroft, 4 E. D. Smith, 34; Merritt v. Milliard, 5 
 Bosw. 645 ; Lienau v. Lincoln, 2 Duer, 670. 
 
 Construing. — The allegations of the complaint must be liberally con- 
 strued, with a view to substantial justice between the parties. See 
 § 170. 
 
 Contract. — A complaint alleging the delivery of lumber in considera- 
 tion of orders made by the contractor upon the owner and accepted by 
 him, payable when certain work was done ; that such work had been 
 completed, and that no part of the sum had been paid, states facts 
 sufficient to constitute a cause of action. Vanderbeek v. Hemmel, 25 
 Misc. Rep. 299, 54 N. Y. Supp. (88 St. Rep.) 562. 
 
 Contract; performance; conditions precedent. — How pleaded. See 
 § 169. 
 
 Corporations. — Complaint in actions by or against. See § 175 of 
 this act, which is the same as § 1775, Code Civ. Proc. 
 
 A complaint in an action against a foreign corporation is not de- 
 murrable because it does not state that the plaintiff is a resident of 
 this State, or where the contract was made. Carter v. Hubert Booth, 
 King d Bro. Pub. Co., 26 Misc. Rep. 652, 56 N. Y. Supp. (90 St. Rep.) 
 382. 
 
 Custom of trade. — Proof of a custom of trade not pleaded is inad- 
 missible. Dommerich t. Garfunkel, 65 N. Y. Supp. 564. 
 
 Demand for relief. — Where the facts appear in the complaint, the 
 court is to give such relief as the parties are entitled to, whether asked 
 for in the prayer of the complaint or not. 12 N. Y. 336; Jones v. But- 
 ler, 30 Barb. 641; s. c, 20 How. Pr. 189. 
 
 Express and implied contract. — Under a complaint on an express 
 contract for professional services, an implied contract cannot be proved. 
 Dennison v. Musgrarc. 29 Misc. Rep. 627, 61 N. Y. Supp. 188. 
 
 Facts must be pleaded and not fictions. Lackey v. Vanderbilt, 10 
 How. 155; Bush v. Prosser, UN. Y. 347, 352; Kelly v. Breusing, 33 
 Barb. 123. 
 
 Arguments are not facts, and should never be pleaded as such. 
 Gould v. Williams, 9 How. 51. 
 
 Every fact necessary to be proved, or to maintain a defense, must be 
 pleaded. Knowles v. Ore, 4 How. 317; Allen v. Patterson, 7 N. Y. 476; 
 McKyring v. Bull, 16 N. Y. 297; Freeman v. Fulton Fire Ins. Co., 38 
 Barb. 247. 
 
 In courts of limited jurisdiction, the pleadings must contain allega- 
 tions of every fact necessary to confer jurisdiction. Frees v. Ford, 6 
 N. Y. 176; Kundolf v. Thalheimer, 12 N. Y. 593; Harriott v. New Jersey 
 R. R. Co., 8 Abb. 284; s. c, 2 Hilt. 262.
 
 254 Pleadings. § 149. 
 
 Facts occurring after suit brought not pleadable by plaintiff. Mutter 
 v. Earle, 37 X. Y. Super. 388. 
 
 Forms. — The court should not pay any attention to forms, if it can 
 find any allegations which, under any view of them, may give a right 
 to recover. Butterworth v. O'Brien, 39 Barb. L92; s. <■.. 24 How. Pr. 438. 
 
 Fraud. — An allegation that defendant, " by trick and device, or de- 
 ception or otherwise," and while plaint ill' " was helplessly intoxicated 
 and confined to his bed " at defendant's hotel, " falsely and fraudulently 
 obtained from'' plaintiff $1,200 — bases the action on fraud, and is 
 insufficient on demurrer for not stating the facts constituting the fraud. 
 Woolsey v. Sunderland, 47 App. Div. 86, 62 X". Y. Supp. 104. 
 
 Hypothetical or alternative form of pleading not allowed. Wils v. 
 Fanning, 9 How. 543: Hamilton v. Hough, 13 How. 14; Corbin v. (iconic, 
 2 Abb. 465. 
 
 Infant. — The complaint must allege the due appointment of the 
 guardian. Hulbert v. Young, 13 How. Pr. 413; Grantman v. Thrall, 
 44 Barb. 173. 
 
 A complaint in an action against an infant for necessaries is suffi- 
 cient, if it contains allegations which, if alleged in a declaration at 
 common law, would have stated a cause of action for debt lor board 
 and lodging or goods furnished. It is not necessary to allege in addi- 
 tion that the infant has no father or other person standing in loco 
 parentis, who both could and should support the infant. Goodman v. 
 Alexander, 28 App. Div. 227; revd., Goodman v. Alexander, 165 X. Y. 
 289. 
 
 Judgments; how pleaded. — See § 168, superseding the decision in Grigg 
 v. Reed, 26 Misc. Rep. 298, 56 X. Y. Supp. (90 St. Rep.) 1093. 
 
 Landlord v. tenant. — A complaint for "one quarter's rent of" prem- 
 ises, describing them, and stating the amount claimed, is sufficient to 
 recover against the assignee of a lease, for use and occupation for a 
 period after he took possession, and before the time the assigned lease 
 was to take effect. Hubbell v. Clark, 1 Hilt. 67. 
 
 An allegation that the overflow was caused by the negligence of the 
 upper tenant in leaving open a stopcock attached to a water apparatus 
 and allowing the water to run into a basin, which overflowed, sets up 
 a good cause of action against him. Citron v. Bayley, 36 App. Div. 
 130, 55 X. Y. Supp. (89 St. Rep.) 382. 
 
 Master and servant. — The complaint being for wages due, plaintiff 
 is confined to the period during which he actually rendered services; 
 there can be no recovery for breach of contract under such a complaint. 
 Reed v. Neioman, 31 Misc. Rep. 792, 65 X. Y. Supp. 218. 
 
 In an action against both master and servant for injuries received 
 through the negligence of the latter, the complaint must allege facts 
 which show at least by fair implication that the act complained of 
 was within the scope of the servant's employment, in order to charge
 
 § 149. Pleadings. 255 
 
 the master. Fisher v. Brooklyn Jockey Club, 50 App. Div. 44(5, 64 
 N. Y. Supp. 69. See also Allinger v. McKeown, 30 Misc. Rep. 275, 63 
 N. Y. Supp. 221. 
 
 Mechanic's lien action. — Requisites of, are prescribed in Code Civ. 
 Proc., § 3404. 
 
 Medical expenses. — In an action for bodily injuries, plaintiff may 
 prove his medical expenses under an allegation that he " was put, and 
 will still be put, to much expense in the treatment ot his said injuries." 
 McCready v. Staten Island R. R. Co., 51 App. Div. 338, 64 N. Y. Supp. 
 996. 
 
 Money loaned. — A complaint alleging that on a day specified de- 
 fendant was indebted to plaintiff in the sum of $1,250 for money loaned 
 by plaintiff to defendant; that prior to the commencement of this 
 action payment of such sum was demanded from defendant, but that 
 no portion thereof was paid except $75, which plaintiff realized through 
 the foreclosure of a chattel mortgage, and that the sum of $1,175 is 
 still due and owing by defendant to plaintiff, states a cause of action. 
 Ochs v. Frey, 47 App. Div. 390, 62 N. Y. Supp. 67. 
 
 Money had and received. — Where the complaint was " for money 
 had and received, damages $41.66," the court held it insufficient, but 
 allowed an amendment to conform to the facts, so as to promote sub- 
 stantial justice. Cushingham v. Phillips, 1 E. D. Smith, 417. 
 
 A complaint which avers " that the defendant received the sum of 
 $1,813.47, belonging to, or on account of the plaintiff, and which is now 
 due to him," does not state facts sufficient to constitute a cause of 
 action. Betts v. Bache, 14 Abb. Pr. 279. 
 
 Recovery for money received, under complaint, alleging also conver- 
 sion. Knapp v. Roche, 37 N. Y. Super. (J. & S.) 305. 
 
 Necessaries furnished wife. — A complaint in an action to recover for 
 necessaries furnished to a wife is sufficient if it contains allegations 
 which, if alleged in a declaration at common law, would have a cause 
 of action for goods furnished. The fact that it also alleges, in a case 
 where the defendant and his wife were living separate and apart from 
 each other, that the purchase was made by her as his agent, will not 
 preclude a recovery without proof of an express agency, and the ex- 
 clusion of evidence tending to show that the articles furnished were 
 necessaries for the wife and children, on the ground that it tended to 
 prove a different cause of action, is reversible error. Hatch v. Leonard, 
 38 App. Div. 128; revd., Hatch v. Leonard, 165 N. Y. 435. 
 
 Necessaries of infant. — See "' Infant," above. 
 
 Partners; firm name. — A firm may do business under the name of 
 one of the partners alone, and can sue in all their names on a contract 
 made in the name of such one alone. Martin v. Johnson, 8 Daly, 541. 
 
 Performance. — Under an allegation of full performance of a con- 
 tract, plaintiff cannot prove excuses and waivers. Bloch v. Remelius, 
 30 Misc. Rep. 804, 61 N. Y. Supp. 1124.
 
 256 Pleadings. § 149. 
 
 Private statute. — How pleaded. See § 167. 
 
 Replevin. — Requisites of complaint in action to recover chattels. 
 Schofield v. Whitelegge, 49 N. Y. 259 ; Simmons v. Lyons, 56 N. Y. 671; 
 ran Der Minden v. Elsas, 36 N. Y. Super. (J. & S.) 66. 
 
 Omission to allege demand and refusal. Treat v. Hathom, 3 Hun, 
 646. 
 
 Representative capacity. — A complaint will not be held bad as not 
 stating facts sufficient to constitute a cause of action, because it con- 
 tains no express allegation that the plaintiff sues in a representative 
 capacity, if the complaint contains the essential averments showing 
 that the plaintiff has such representative capacity, and fairly apprises 
 the defendant that the intent of plaintiff is to prosecute in such ca- 
 pacity. Cordier v. Thompson, 8 Daly, 172. 
 
 Special damages which are the natural but not necessary result of 
 the injury complained of must be specifically alleged. Geoghegan v. 
 Third Ave. R. R. Co., 51 App. Div. 369, 64 N. Y. Supp. 630. 
 
 Time. — Where time is of the essence of the contract, waiver thereof 
 cannot be proved if not alleged. Rode v. Auerback, 31 Misc. Rep. 765, 
 64 N. Y. Supp. 774. 
 
 Use and occupation. — It is not necessary to aver how the relation of 
 landlord and tenant arose. A complaint, stating that on, etc., the de- 
 fendant became indebted to the plaintiff in the sum of, etc., for the 
 use and occupation of the plaintiff's premises, situated at, etc., and that 
 no part of that sum has been paid, states facts sufficient to constitute a 
 cause of action. Waters v. Clark, 22 How. Pr. 104. 
 
 The plaintiff need not set forth an implied demise, but may declare 
 for use and occupation, and recover on the special facts shown. Mor- 
 ris v. Mies, 12 Abb. Pr. 103. 
 
 Waiver. — In an action to foreclose a mechanic's lien for work and 
 materials furnished under a building contract, which makes the archi- 
 tect's certificate a condition precedent to plaintiff's right of payment, 
 evidence of a waiver of such certificate is not admissible unless the 
 waiver is pleaded. Bossert v. Poerschke, 51 App. Div. 381, 64 N. Y. 
 Supp. 733. 
 
 What must be specially alleged. — Claim for allowance for materials. 
 Read v. Decker, 5 Hun, 646. 
 
 Failure of consideration of a sealed instrument. Dubois v. Hermance, 
 56 N. Y. 673, affg. 1 Sup. Ct. (T. & C.) 293. 
 
 In an action to recover exempt property taken under execution the 
 officer, if he wishes to justify under a judgment given for purchase 
 money, must plead the justification. Dennis v. Snell, 54 Barb. 411; s. 
 c, 34 How. Pr. 467. 
 
 A former adjudication upon the same cause of action. Dalrymple v. 
 Hunt, 5 Hun, 111. 
 
 Pendency of another action, and set-off there. White v. Talmage, 35 
 N. Y. Super. (3 J. & S.) 223.
 
 § 150. Pleadiktgs. 257 
 
 Necessity of averring special damage. Baldwin v. N. Y. & Harlem 
 Nav. Co., 4 Daly, 314. 
 
 § 150. Answer; what to contain. — The answer of the de- 
 fendant must contain: 
 
 1. A general or specific denial of each material allegation 
 of the complaint controverted by the defendant, or of any 
 knowledge or information thereof, sufficient to form a 
 belief. 
 
 2. A statement of any new matter constituting a defense 
 or counterclaim, in ordinary and concise language, without 
 repetition. 
 
 Notes to section 150. 
 
 This section is the same as section 500 of the Code of Civil Procedure. 
 Section 1347 of the Consolidation Act (Laws 1882, chap. 410), made 
 section 2938 of the Code of Civil Procedure, applicable to justices' 
 courts, apply to this court. That section does not provide for answer 
 on information and belief. The cases of Nicoll v. Clark, 13 Misc. Rep. 
 128, and Lambert v. Hoffman, 20 Misc. Rep. 331, decided that an answer, 
 alleging that the defendant has no knowledge or information sufficient 
 to form a belief, was neither a proper form of denial nor one author- 
 ized in this court. 
 
 In order to assimilate the practice of this court to courts of record 
 section 500, instead of section 2938, of the Code of Civil Procedure was 
 taken. 
 
 Abatement and bar. — If defendant unite matter in abatement and 
 matter in bar, the court may disregard the former, and try the cause 
 upon the merits. Monteith v. Cash, 1 E. D. Smith, 412; Andreas v. 
 Thorp, 1 E. D. Smith, 615. 
 
 An allegation of the rendition of a former judgment is sufficient to 
 raise the question of its effect as a bar; it is not necessary to plead 
 any legal conclusions flowing from that fact. Bracken v. Atlantic 
 Trust Co., 36 App. Div. 67, 55 N. Y. Supp. (89 St. Rep.) 506. 
 
 Admissions. — Allegations in the complaint not denied in the answer 
 must be deemed admitted. Gregory v. Trainer, 4 E. D. Smith, 58; Den- 
 nison v. Carnahan, 1 E. D. Smith, 144. 
 
 Another action pending; discontinuance and abatement. — The plea 
 of another action pending for the same cause of action is not supported 
 when it appears that, before the present suit was begun, a former action 
 in the same court, in which the summons was served, abated, or became 
 discontinued because, owing to the failure of the plaintiff's attorney to 
 pay the trial fee, the clerk did not put the case on the calendar, and 
 it was never called for trial. Goldstein v. Loeb, 21 Misc. Rep. 72. 
 
 17
 
 258 Pleadings. § 150. 
 
 AFFIRMATIVE DEFENSES; WHAT MUST BE PLEADED; WHAT 
 CANNOT BE PROVEN UNDER A GENERAL DENIAL. 
 
 Consideration. — The complaint being upon a contract under seal, the 
 seal is presumptive evidence of consideration, the lack of which is an 
 affirmative defense which must be pleaded and cannot be proved under 
 a denial of the allegation that defendant entered into the agreement 
 for a good and valuable consideration. Recknagal v. Steinway, 58 App. 
 Div. 352, modifying and affg. 33 Misc. Rep. (133, G8 N. Y. Supp. 957. 
 
 Possession. — In replevin by the owner of a chattel wrongfully taken 
 from him, brought against a warehouseman who received it from the 
 wrongdoer, a general denial only puts in issue the question whether he 
 is lawfully in possession, and not whether he is in innocent possession, 
 and such defense must be pleaded. Milligan v. Brooklyn Warehouse 
 d Storage Co., 34 Misc. Rep. 55, 68 N. Y. Supp. 744. 
 
 Statute of frauds. — The defense of the statute of frauds is an 
 affirmative one and cannot be established under a general denial. 
 Franklin Coal Co. v. Hicks, 46 App. Div. 441, 61 N. Y. Supp. 875. See 
 Stokes v. Polley, 164 N. Y. 266; Cruikshank v. Press P. Co., 32 Misc. 
 Rep. 152, 65 N. Y. Supp. 678; Rishel v. Weil, 31 Misc. Rep. 70, 63 N. Y. 
 Supp. 178. 
 
 The defense of an accord and satisfaction must be specially pleaded. 
 Habrich v. Donahue, 51 App. Div. 375, 64 N. Y. Supp. 604. See also 
 Geneva M. Co. v. Coursey, 45 App. Div. 268, 61 N. Y. Supp. 98. 
 
 Statute of limitations must be pleaded'. Baldwin v. Martin, 14 Abb. 
 Pr. N. S. 9. 
 
 Conclusion of fact. — An allegation in an answer that plaintiff ratified 
 and confirmed a certain payment, and elected to consider it a proper 
 payment to defendants, etc., is an allegation of a conclusion of fact and 
 not of a conclusion of law. Spies v. Monroe, 35 App. Div. 527, 54 N. Y. 
 Supp. (88 St. Rep.) 916. 
 
 Construing. — The allegations of the answer must be liberally con- 
 strued with a view to substantial justice between the parties. See 
 § 170. 
 
 Contract; performance; conditions precedent; how pleaded. — See 
 § 169. 
 
 Conversion. — An admission in an answer in an action of conversion 
 that " demand has been made for the delivery of the note and that he 
 has not delivered it " is not a sufficient admission of a refusal to de- 
 liver. Halbrau v. Gray, 25 Misc. Rep. 693, 55 N. Y. Supp. ( 89 St. Rep. ) 
 501. 
 
 Corporation. — Code Civ. Proc., § 1777. In an action or special pro- 
 ceeding, brought by or against a corporation, the defendant is deemed 
 to have waived any mistake in the statement of the corporate name, 
 unless the misnomer is pleaded in the answer or other pleading in the 
 defendant's behalf.
 
 § 150. Pleadings. 259 
 
 Defect of parties must be set up in the pleadings. Avogando v. Bull, 
 4 E. D. Smith, 384, and is waived unless the objection is taken by 
 answer. Crouch v. Parker, 56 N. Y. 597; Hecs v. Ncllis, 1 Sup. Ct. 
 (T. & C.) 118. 
 
 Fact in complaint. — Where the existence of a fact is alleged in the 
 complaint it is not necessary for the defendant to plead the same fact 
 in the answer in order to entitle him to take advantage of it. Terry 
 v. Buck, 40 App. Div. 419, 57 N. Y. Supp. (91 St. Rep.) 980. 
 
 Form of denial. — Defendant " has not sufficient knowledge or in- 
 formation to form a belief as to the allegations " contained in specified 
 paragraphs of the complaint, " and he therefore denies the same," 
 instead of the denial prescribed in Code Civ. Proc, § 500, that he 
 " denies that he has any knowledge or information sufficient to form 
 a belief," disapproved. Johnson v. Andrews, 34 Misc. Rep. 89, 68 N. 
 Y. Supp. 764. See also Burkert v. Bennett, 35 Misc. Rep. 318, 71 N. Y. 
 Supp. 144. 
 
 An allegation in an answer that " the defendants deny any knowledge 
 or information," etc., should be " deny that they have any knowledge 
 or information," in order to constitute a denial ; and a denial of " the 
 allegations contained in the paragraphs of the complaint numbered 
 first, second, and third," being in gross, is bad. Burkett v. Bennett, 35 
 Misc. Rep. 318, 71 N. Y. Supp. 144. 
 
 An allegation in an answer that defendant " has no information 
 sufficient to form a belief " as to the allegations of the complaint is 
 insufficient under Code Civ. Proc, § 500, 10 put them in issue, there 
 being no statement as to defendant's knowledge. Steinback v. Diepen- 
 brock, 52 App. Div. 437, 65 N". Y. Supp. 118; Place v. Bleyl, 45 App. 
 Div. 17, 60 N. Y. Supp. 800. 
 
 Where the complaint alleges that a certain sum is " due, owing, and 
 unpaid," a denial that such sum, or any sum whatever, is due or owing 
 raises no issue, as it admits that the sum named is unpaid. De Forest 
 v. Andrews, 27 Misc. Rep. 145, 58 N. Y. Supp. (92 St. Rep.) 358. 
 
 Setting out a version of the transaction in question inconsistent with 
 that set forth in the complaint is not a denial. Place v. Bleyl, 45 App. 
 Div. 17. 
 
 Fraud. — While this court has no equity jurisdiction, fraud in- 
 ducing a contract is there, as elsewhere, available as a defense. Es- 
 telle v. Dinsbern, 9 Misc. Rep. 485; s. c, 61 N. Y. St. Rep. 96; s. c, 30 
 N. Y. Supp. 226. See also 17 Misc. Rep. 371. 
 
 The rule that where a transaction is capable of two inferences, one 
 in favor of the integrity of the transaction and the other to the con- 
 trary, the former inference will prevail, is applicable in respect to 
 fraud upon the law as well as to fraud in fact. Perry v. Booth, 67 App. 
 Div. 235. 
 
 General denial. — In an action for goods sold and delivered, where 
 plaintiff proves a sale by sample, it is reversible error not to allow de-
 
 260 Pleadings. § 150. 
 
 fendant to prove, under a general denial, that the goods delivered were 
 not in accordance with the sample, since he by his answer fully met the 
 issue presented by the complaint. Wilson v. t'lickinger Co.. 32 Misc. 
 R«p. :$<i!>. 
 
 A general denial does not put in issue the fact alleged in the com- 
 plaint of defendants incorporation, and plaintiff need not prove it. 
 Deutz Lithographing Co. v. International Registry Co., 32 Misc. Rep. 
 687, 66 X. Y. Supp. 540. 
 
 A defendant should never plead as a detense anything which is 
 embraced in a general denial. McManus v. Western Assurance Co., 43 
 App. Div. 550, affg. 22 Misc. Rep. 328, 54 N. Y. Supp. (88 St. Rep.) 
 564. 
 
 Inconsistent defenses. — A defendant may plead as many defenses as 
 lie wishes and their inconsistency is no objection. Seeman v. Bandler, 
 25 Misc. Rep. 328, 54 N". Y. Supp. ( 88 St. Rep. ) 546. 
 
 Defendant may plead separate, though inconsistent, defenses. Kelley 
 v. Supreme Council of Catholic Mut. Benefit Assoc, 46 App. Div. 79, 
 61 X. Y. Supp. 394. 
 
 Insufficient. — Where the plaintiff serves a verified written complaint, 
 in an action on contract, the defendant must serve a verified answer; 
 and where such an answer, interposed to one of the causes of action, 
 merely states that the defendant, by his attorneys, " alleges and respect- 
 fully shows," that certain allegations of the complaint " are denied," 
 it is ineffectual for any purpose, and the plaintiff is, in the absence of 
 any amendment being allowed upon the trial, entitled to judgment upon 
 that cause of action. The plaintiff is not bound in such a case to move 
 to make the answer more definite and certain. Feder v. Samson, 22 
 Misc. Rep. 111. 
 
 Judgment; how pleaded. — See § 168, superseding the decision in 
 Gregg v. Feed, 26 Misc. Rep. 298, 56 X. Y. Supp. (90 St. Rep.) 1093. 
 
 Misnomer in an action by or against a corporation is waived unless 
 pleaded in the answer. See § 177 of this act. 
 
 Mitigation of damages. — See § 174. A separate defense setting up 
 facts in mitigation of damages, characterizes itself as a partial defense. 
 Robinson v. Evening Post Pub. Co., 25 Misc. Rep. 243, 55 X. Y. Supp. 
 (89 St. Rep.) 62, 28 Civ. Proc. Rep. 239. 
 
 New matter. — A defense can consist only of new matter, which 
 constitutes a defense to the action if all the material allegations of 
 the complaint be taken as true; new matter being matter which is not 
 embraced within the issue raised, or which can be raised by a denial, 
 i. e., it is matter which cannot be proved under a denial. Staten Island 
 Midland R. R. Co. v. Hinchcliffc, 34 Misc. Rep. 49, 68 "N T . Y. Supp. 556. 
 
 Matter pleaded only as a defense is not available as a counterclaim, 
 not being pleaded as such. Pratt cf- Whitney v. American Pneumatic 
 Tool Co., 50 App. Div. 369, 63 X. Y. Supp. 10G2. 

 
 § 150. Pleadings. 261 
 
 A defendant cannot join with denials new matter alleged as a defense, 
 as such a course would prevent the plaintiff from demurring. Fay v. 
 Hanercoas, 26 Misc. Rep. 421, 57 N. Y. Supp. (CI St. Rep.) 155. 
 
 Misjoinder. — An answer for misjoinder of defendants cannot be intro- 
 duced after issue joined and proof taken on the merits. Montfort v. 
 Hughes, 3 E. D. Smith, 591. 
 
 Nonjoinder. — The defense of nonjoinder of parties, being a plea in 
 abatement, should not only state the names of the parties omitted, 
 but allege that they are living within the jurisdiction of the court and 
 within reach of process. Mittendorf v. N. Y. & Harlem R. R. Co., 58 
 App. Div. 260, 68 N. Y. Supp. 1094. 
 
 Partial defenses. — How pleaded. See § 174. 
 
 Payment; application of. — Where a payment is made upon general 
 account, and no direction is given as to its application, the law applies 
 it to the oldest items. Perry v. Booth, 67 App. Div. 235. 
 
 Private statute. — How pleaded. See § 167. 
 
 Separately stated and numbered. — The requirement that defenses 
 must be separately stated and numbered is not satisfied by simply 
 numbering the paragraphs of the answer. Fay v. Hanercoas, 26 Misc. 
 Rep. 421, 57 N. Y. Supp. (91 St. Rep.) 155. 
 
 Set-off. — A joint debt cannot be set off against an individual one. 
 Campbell v. Genet, 2 Hilt. 290. 
 
 Statute of frauds need not be pleaded, but only the facts relied on 
 to invoke it. Morrill v. Cooper, 65 Barb. 512. 
 
 Sufficient. — An answer in an action which informs the plaintiff of 
 the nature of the defense, and the character of the evidence by which 
 it is to be sustained, is sufficient. Smith v. Hildenbrand, 15 Misc. Rep. 
 129. 
 
 Supplemental answer. — Whether a supplemental answer was allow- 
 able was questioned in Russell v. Rtickman, 3 E. D. Smith, 419; and 
 in Meyers v. Rosenback, 7 Misc. Rep. 560, it is shown that no such power 
 exists. 
 
 Tender; payment into court. — A plea of tender before action should 
 allege the tender and refusal, and that defendant has always been, and 
 still is, ready to pay ( 8 Barb. 408, 5 Abb. Pr. 358, 23 Barb. 490, 2 E. D. 
 Smith, 197, 2 Den. 196), and the amount tendered must be paid into 
 court (2 E. D. Smith, 197, 25 How. Pr. 464), and notice of such pay- 
 ment must be given to the plaintiff's attorney. 25 How. Pr. 464. 
 The answer should aver that the money is brought into court. 7 Robt. 
 389, 21 N. Y. 343. A defense of tender after action commenced must 
 state the amount tendered and should include interest and costs to the 
 time of the tender (8 How. Pr. 258), and the amount must be paid into 
 court. 45 Barb. 579, 2 Hill, 538, Cow. Tr., §§ 1148 to 1160, 7 Robt. 
 389, 36 How. Pr. 26, 5 Abb. Pr. N. S. 18, 25 How. Pr. 464, 45 Barb. 
 554, 30 How. Pr. 226, 61 N. Y. 317.
 
 262 Pleadings. § 151. 
 
 Payment -of money into court admits the cause or causes of action 
 stated in the complaint, to the amount paid in, but beyond that the 
 defendant may make his defense (Cow. Tr., § 1154, 7 Johns. 315, 2 
 Wend. 431), and the plaintiff is, in any event, entitled to the amount 
 tendered or paid in. 1 Barb. 115, 1 E. 1). Smith, 498, 1 Wend. 191, 13 
 Wend. 390. If the defendant pays in court less than is due, the plaintiff 
 is entitled to a verdict and judgment for the whole amount, and must 
 credit the payment on the judgment, for this preserves his right to costs, 
 but if the payment equals the debt, defendant should have a verdict. 
 Dakin v. Dunning 7 Hill, 30. 
 
 Test of sufficiency of defense. — The sufficiency of a defense is tested 
 by the question whether, taking all the allegations of the complaint to 
 be true, it constitutes a defense to the action, Staten Island Midway 
 R. R. Co. v. Hinchcliffe, 34 Misc. Rep. 624, 70 N. Y. Supp. 601. 
 
 Title to sue. — Answer, not demurrer, the remedy where complaint 
 fails to show title to sue. Barclay v. Quicksilver Mining Co., 6 Lans. 25. 
 
 Usury. — Requisites of pleading usury. Taylor v. Jackson, 5 Daly, 
 497 ; M. E. Nat. Bank v. C. W. Co., 49 N. Y. 635. 
 
 The defendants are bound to set up in the answer the contract, giv- 
 ing its terms, and the amount of the usurious premium or interest taken 
 by the lender. 4 Paige, 526, 8 Paige, 457, 11 Paige, 17, 3 Hill, 565, 11 
 Barb. 100, 12 Barb. 601; Grigg v. Howe, 31 Barb. 100; Miller v. Schuy- 
 ler, 20 N. Y. 522. 
 
 Waiver. — Answer on the merits waives all objections which would 
 go in abatement of the action; notwithstanding the objection, either in 
 the form of a motion to dismiss the complaint, or by a demurrer, which 
 has been overruled, had been previously taken. Andreas v. Thorp, 1 E. 
 
 D. Smith, 015; Monteith v. Cash, 1 E. D. Smith, 412; Harper v. Leal, 
 10 How. Pr. 276; Gardner v. Clark, 6 How. Pr. 449; Bridge v. Payson, 
 5 Sandf. 210; Gossling v. Broach, 1 Hilt. 49; Boardman v. Gamble, 4 
 
 E. D. Smith, 463. 
 
 A variance between the summons and the complaint is waived by 
 pleading to the merits. Miln v. Russell, 3 E. D. Smith, 303, and 
 note (b) ; Brown v. Jones, 3 Abb. Pr. 80; s. c, 1 Hilt. 204; Hogan V. 
 Baker, 2 E. D. Smith, 22; Robinson v. West, 1 Sandf. 19; s. c, 11 Barb. 
 309; Stevens v. Benton, 39 How. Pr. 13; s. c, 2 Lans. 156. 
 
 The objection that plaintiff has not legal capacity to sue is waived, 
 if not taken by demurrer or answer. Palmer v. Davis, 28 N. Y. 242 ; 
 Van Amringe v. Barnett, 8 Bosw. 357; Bobbins v. Wells, 26 How. Pr. 
 15; s. c, less fully, 18 Abb. Pr. 191. See contra, Mosselmann v. Caen, 
 1 Hun, 64. 
 
 § 151. Counterclaim defined. — The counterclaim, specified 
 in the last section, must tend, in some way, to diminish or 
 defeat the plaintiff's recovery, and must be one of the fol-
 
 § 152. Pleadings. 263 
 
 lowing causes of action against the plaintiff, or, in a proper 
 case, against the person whom he represents, and in favor 
 of the defendant, or of one or more defendants, between 
 whom and the plaintiff a separate judgment may be had in 
 the action : 
 
 1. A cause of action arising out of the contract or trans- 
 action, set forth in the complaint as the foundation of the 
 plaintiff's claim, or connected with the subject of the action. 
 
 2. In an action on contract, any other cause of action on 
 contract, existing at the commencement of the action. 
 
 Notes to section 151. 
 
 This section and sections 152, 153, 154, 155, and 156 are taken from 
 sections 501 to 506 of the Code of Civil Procedure. 
 
 In the case of H anion v. Metropolitan Life Ins. Co., 29 N. Y. Supp. 
 65 ; s. c, 9 Misc. Rep. 70, decided in June, 1894, it was pointed out that 
 section 502 of the Code of Civil Procedure did not apply to this court. 
 This present section is intended to remedy the former defect. By sec- 
 tions 2945 and 2946 of the Code of Civil Procedure, sections 501 to 506 
 were applicable to justices' courts. By the present section all these 
 sections are now made applicable to this court. 
 
 Conversion and contract. — A cause of action for conversion cannot 
 be made a counterclaim in an action upon contract unless it arises out 
 of the same transaction, or is connected with the subject of the action. 
 Do Forest v. Andrews, 27 Misc. Rep. 145, 58 N. Y. Supp. (92 St. Rep.) 
 358, 29 Civ. Proc. Rep. 250. 
 
 Incapacity. — ■ For form of demurrer to counterclaim, see Armour v. 
 Leslie, 39 N. Y. Super. (J. & S.) 353. 
 
 Incapacity to sue not waived by not demurring. Mosselmann v. Caen, 
 1 Hun, 64. 
 
 Partnership. — A cause of action against a partnership cannot be in- 
 terposed as a counterclaim in an action brought by one of the partners. 
 Be Forest v. Andrews, 27 Misc. Rep. 145, 58 N. Y. Supp. (92 St. Rep.) 
 358, 29 Civ. Proc. Rep. 250. 
 
 Statute of limitations not available to defeat counterclaim unless 
 pleaded. Williams v. Willis, 15 Abb. Pr. N. S. 11. 
 
 Summary proceedings. — A counterclaim is allowed in this proceed- 
 ing. Sage V. Crowley, 35 Misc. Rep. 117. 
 
 § If) 2. Rules respecting the allowance of counterclaim. — 
 Hut the counterclaim, specified in subdivision second of the 
 last section, is subject to the following rules :
 
 264 Pleadings. § 153. 
 
 1. If the action is founded upon a contract, which has 
 been assigned by the party thereto, other than a negotiable 
 promissory note or bill of exchange, a demand existing 
 against the party thereto, or an assignee of the contract, at 
 the time of the assignment thereof, and belonging to the 
 defendant, in good faith, before notice of the assignment, 
 must be allowed as a counterclaim, to the amount of the 
 plaintiff's demand, if it might have been so allowed against 
 the party, or the assignee, while the contract belonged to 
 him. 
 
 2. If the action is upon a negotiable promissory note or 
 bill of exchange, which has been assigned to the plaintiff 
 after it became due, a demand existing against a person who 
 assigned or transferred it, after it became due, must be 
 allowed as a counterclaim, to the amount of the plaintiff's 
 demand, if it might have been so allowed against the as- 
 signor, while the note or bill belonged to him. 
 
 3. If the plaintiff is a trustee for another or if the action 
 is in the name of the plaintiff, who has no actual interest 
 in the contract upon which it is founded, a demand against 
 the plaintiff shall not be allowed as a counterclaim; but so 
 much of a demand existing against the person whom he 
 represents, or for whose benefit the action is brought, as 
 will satisfy the plaintiff's demand, must be allowed as a 
 counterclaim, if it might have been so allowed in an action 
 brought by the person beneficially interested. 
 
 Note to section 152. 
 
 See notes to § 151. 
 
 § 153. Judgment when demand or counterclaim are equal 
 or unequal. — Where a counterclaim is established, which 
 equals the plaintiff's demand, the judgment must be in favor 
 of the defendant. Where it is less than the plaintiff's de- 
 mand, the plaintiff must have judgment for the residue only. 
 Where it exceeds the plaintiff's demand, the defendant must 
 have judgment for the excess, or so much thereof as is due 
 from the plaintiff; the judgment does not prejudice the de-
 
 §§ 154, 155, 156. Pleadings. 265 
 
 fendant's right to recover, from another person, so much 
 thereof as the judgment does not cancel. 
 
 Note to section 153. 
 
 See notes to § 151. 
 
 §154. For affirmative relief . — In a case not specified in 
 the last section where a counterclaim is established, which 
 entitles the defendant to an affirmative judgment, demanded 
 in the answer, judgment must be rendered for the defendant 
 accordingly. 
 
 Note to section 154. 
 
 See notes to § 151. 
 
 § 155. Counterclaim when defendant is sued in a representa- 
 tive capacity. — In an action against an executor or adminis- 
 trator, or other person sued in a representative capacity, 
 the defendant may set forth, as a counterclaim, a demand 
 belonging to the decedent or other person whom he repre- 
 sents, where the person so represented would have been 
 entitled to set forth the same, in an action against him. 
 
 Note to section 155. 
 
 See notes to § 151, and § 1, subd. 18. 
 
 § 156. When plaintiff is an executor or administrator. — In 
 an action brought by an executor or administrator, in his 
 representative capacity, a demand against the decedent, be- 
 longing, at the time of his death to the defendant, may be 
 set forth by the defendant as a counterclaim, as if the action 
 had been brought by the decedent in his lifetime; and, if a 
 balance is found to be due to the defendant, judgment must 
 be rendered therefor against the plaintiff, in his representa- 
 tive capacity. Execution can be issued upon such a judg- 
 ment only in a case where it could be issued upon a judg- 
 ment in an action against the executor. 
 
 Note to section 156. 
 
 See notes to § 151, and § 1, subd. 18.
 
 266 Pleadings. §§ 157, 158. 
 
 § 157. Counterclaim where amount is in excess of courts' 
 jurisdiction.— Where defendant has a counterclaim which 
 is in excess of the amount of the jurisdiction of this court, 
 the counterclaim may be interposed, and in the event of 
 judgment being rendered in defendant's favor, sustaining 
 said counterclaim, said judgment shall not be for any larger 
 sum in any event than the sum to which the court has juris- 
 diction, exclusive of costs, but nothing in this section shall 
 be construed to estop such a defendant from bringing an 
 action against the plaintiff for the difference between the 
 sum of the court's jurisdiction, and the sum claimed by 
 said defendant to be due unless the judgment shall state 
 that the sum awarded by the judgment is the whole amount 
 found to be due. 
 
 Note to section 157. 
 
 See notes to § 151. 
 
 § 158. When defendant may demur. — The defendant may 
 demur to the complaint, where one or more of the follow- 
 ing objections thereto, appear upon the face thereof : 
 
 1. That the court has not jurisdiction of the person of 
 the defendant. 
 
 2. That the court has not jurisdiction of the subject of 
 the actioji. 
 
 Notes to section 158. 
 
 This section is the same as section 488 of the Code of Civil Pro- 
 cedure. 
 
 Section 1347 of the Consolidation Act (Laws 1882, chap. 410) made 
 section 2939 of the Code of Civil Procedure, which was applicable to 
 justices' courts, applicable to this court, but it was thought that section 
 488 of the Code, applicable to courts of record, was clearer, so that 
 section was made to apply instead of section 2939. 
 
 Amendment of pleadings. — See § 166. 
 
 Counterclaim. — A demurrer to a counterclaim is not necessary in 
 this court. See § 161. 
 
 Demurrer and answer. — Demurrer to all or part of the complaint, 
 and answer to part may be made as provided by section 160 of this 
 act. See McKesson v. Russian Co., 27 Misc. Rep. 96, 57 N. Y. Supp. 
 (91 St. Rep.) 579, where it was held, that where a complaint states 
 but a single cause of action the defendant cannot demur to a part and 
 answer as to another part.
 
 § 158, Subds. 3, 5, 6. Pleadings. 267 
 
 Joint demurrer. — A joint demurrer by two defendants cannot be 
 sustained if the complaint states a cause of action against either. 
 Moore v. Chas. E. Monell Co., 27 Misc. Rep. 235, 58 N. Y. Supp. (92 
 St. Rep.) 430. 
 
 Part. — A demurrer to a part only of a single cause of action is bad. 
 Toplitz v. Toplitz, 54 App. Div. 630, 66 N. Y. Supp. 386. 
 
 Several defenses. — A demurrer taken to several defenses will be over- 
 ruled if one of them is good. McGrath v. Pitkin, 26 Misc. Rep. 862, 
 56 N. Y. Supp. (90 St. Rep.) 398. 
 
 3. That the plaintiff has not legal capacity to sue. 
 
 4. That there is another action pending between the same 
 parties, for the same cause. 
 
 Notes to section 158, subdivision 3. 
 
 Waiver. — The objection that plaintiff has no legal capacity to sue is 
 waived, if not taken by demurrer or answer. Palmer v. Davis, 28 N. Y. 
 242; Van Amringe v. Barnett, 8 Bosw. 357; Robbins v. Wells, 26 How. 
 Pr. 15, less fully reported in 18 Abb. Pr. 191. 
 
 To the contrary, see Mosselmann v. Caen, 1 Hun, 64. 
 
 5. That there is a misjoinder of parties plaintiff. 
 
 Notes to section 158, subdivision 5. 
 
 See Ackley v. Tarbox, 29 Barb. 512; Abbe v. Clark, 31 Barb. 238, 
 where it was held a demurrer would not lie where two persons are 
 improperly joined as plaintiffs. This section nullifies these decisions. 
 
 An objection of misjoinder of plaintiff must be taken by demurrer or 
 answer. Egbert v. Hanson, 34 Misc. Rep. 760. 
 
 6. That there is defect of parties, plaintiff or defendant. 
 
 Notes to section 158, subdivision 6. 
 
 In Persons v. Kruger, 39 App. Div. 416, 57 N. Y. Supp. (91 St. Rep.) 
 416, it was held a defense that there are partners not made parties 
 must be pleaded, and the answer must state their names. This section 
 nullifies that decision. 
 
 Nonjoinder. — A demurrer cannot be sustained for the nonjoinder of 
 a party, unless it appears that he is still living. Strong v. Wheaton, 38 
 Barb. 616. 
 
 Surviving partner, etc. — The objection that the surviving partners, 
 although alleged to be insolvent, should be joined as parties in an 
 action against the representatives of a deceased partner should be taken
 
 268 Pleadings. §§ 159, 160. 
 
 by demurrer, and cannot bo raised for the first time on appeal. Hotopp 
 v. Ruber, 160 N. Y. 524, 55 N. E. Rep. 206. 
 
 7. That causes of action have been improperly united. 
 
 8. That the complaint does not state facts sufficient to 
 constitute a cause of action. 
 
 Note to section 158, subdivision 8. 
 Test. — -The test by which a demurrer, on the ground the complaint 
 does not state a cause of action, is to be tried, is whether the complaint 
 sets forth facts which, if true, would entitle the plaintiff to any relief 
 whatever. Struble v. Kings County Trust Co., 60 App. Div. 548, 60 
 N. Y. Supp. 1092. 
 
 § 159. Demurrer to complaint must specify grounds of objec- 
 tion. — The demurrer must distinctly specify the objections 
 to the complaint, otherwise it may be disregarded. An ob- 
 jection, taken under subdivision first, second, fourth or 
 eighth of section one hundred and fifty-eight of this act, 
 may be stated in the language of the subdivision; and an 
 objection taken under either of the other subdivisions, must 
 point out specifically the particular defect relied upon. 
 
 Note to section 159. 
 
 This section is the same as section 480 of the Code of Civil Pro- 
 cedure, applicable to courts of record, and is new as applicable to this 
 court. There is no similar provision applicable to justices' courts. 
 Section 2939 of the Code of Civil Procedure, applicable to justices' 
 courts, provides for a demurrer without requiring the statement of any 
 grounds. 
 
 § 160. Demurrer to all or part of the complaint; may answer 
 to part. — The defendant may demur to the whole complaint, 
 or to one or more separate causes of action, stated therein. 
 In the latter case, he may answer the cause of action not 
 demurred to. 
 
 Note to section 160. 
 
 This section is the same as section 492 of the Code of Civil Pro- 
 cedure, applicable to courts of record, and is new as applicable to this 
 court. 
 
 Separate paragraph. — A demurrer will only lie to the whole of a 
 cause of action or defense, and not to a separate paragraph of a
 
 §f 161, 162. Pleadings. 269 
 
 pleading. HoUingsicorth v. Spectator Co., 53 App. Div. 291, 65 N. Y. 
 Supp. 812. 
 
 A demurrer must be directed to an entire cause of action or de- 
 fense ; it cannot be made to a separate paragraph of a pleading not 
 designated nor considered as a separate defense, and it the party de- 
 siring to demur so regards it he should first move that it be properly 
 designated. A". ./. Steel d- Iron Co. v. Robinson, 60 App. Div. 69, affg. 
 33 Misc. Rep. 361. 68 N. Y. Supp. 577. See also McKesson v. Russian 
 Co., 27 Misc. Rep. 96, 57 X. Y. (91 St. Rep.) 430. 
 
 § 161. Formal reply or demurrer to counterclaim not neces- 
 sary. — A formal reply to a counterclaim is not necessary. 
 The counterclaim shall be deemed denied by the plaintiff 
 unless specifically admitted on the trial. It also may be 
 objected to on motion, or demurred to as if the counter- 
 claim were an affirmative cause of action, set up in a com- 
 plaint. 
 
 Note to section 161. 
 This section is new. It will be observed that the preamble to section 
 145 omits a reply. 
 
 § 162. When plaintiff may demur to answer. — The plaintiff 
 may demur to a counterclaim or a defence consisting of new 
 matter contained in the answer, on the ground that it is in- 
 sufficient in law on the face thereof. 
 
 Notes to section 162. 
 
 This section is the same as section 494 of the Code of Civil Pro- 
 cedure, relative to courts of record, and is new as applicable to this 
 court. 
 
 Bad complaint. — A bad answer is good enough for a bad complaint, 
 and, on demurrer to the former for insufficiency, the sufficiency of the 
 complaint may be attacked. Savage v. City of Buffalo, 50 App. Div. 
 136, 63 X. Y. Supp. 941. 
 
 Demurrer to the answer opens the complaint to attack, and, if bad, it 
 will be dismissed. Tuthill v. City of New York, 29 Misc. Rep. 555, 61 
 N. Y. Supp. 968. See also Kent v. Village, etc., 50 N. Y. Supp. 502. 
 
 Form. — A form of demurrer, " that said amended answer is insuffi- 
 cient for the reason that it does not state facts sufficient to con- 
 stitute a defense,'' is defective, and should be overruled, since Code 
 Civ. Proc, § 494, requires it to be made upon " the ground that the 
 pleading is insufficient in law upon the face thereof," a demurrer being
 
 270 Pleadings. §§163, 164. 
 
 a technical pleading, and, if materially defective, not raising an issue. 
 McCarm v. Hazard, 36 Misc. Rep. 7, 72 N. Y. Supp. 45. 
 
 §163. Requirements concerning verified pleadings. — The 
 allegations or denials in a verified pleading must in form be 
 stated to be made by the party pleading. Unless they are 
 therein stated to be made on the information and belief 
 of the party, they must be regarded, for all purposes, as 
 having been made on the knowledge of the person verifying 
 the pleading. An allegation that the party has not suffi- 
 cient knowledge or information to form a belief with respect 
 to a matter, must, for the same purpose, be regarded as an 
 allegation that the person verifying the pleading has not 
 such knowledge or information. 
 
 Note to section 163. 
 
 This section is substantially the same as section 524 of the Code of 
 Civil Procedure, relating to courts of record. For authorities under 
 this section, see the Annotated Codes of Civil Procedure, and see notes 
 to next section. 
 
 § 164. Verification; how and by whom made. — The verifi- 
 cation must be made by the affidavit of the party, or, if 
 there are two or more parties united in interest, and plead- 
 ing together, by at least one of them who is acquainted with 
 the facts, except as follows: 
 
 1. Where the party is a domestic corporation, the verifi- 
 cation must be made by an officer thereof. 
 
 2. Where the people of the state are, or a public officer, 
 in their behalf, is the party, the verification may be made 
 by any person acquainted with the facts. 
 
 3. Where the party is a foreign corporation; or where 
 the party is not within the county where the attorney re- 
 sides, or if the latter is not a resident of the state, the county 
 where he has his office, and capable of making the affidavit; 
 or, if there are two or more parties united in interest and 
 pleading together, where neither of them, acquainted with 
 the facts, is within that county and capable of making the 
 affidavit; or where the action or defence is founded on a 
 written instrument for the payment of money only, which
 
 § 165. Pleadings. 271 
 
 is in the possession of the agent or the attorney; or where 
 all the material allegations of the pleading are within the 
 personal knowledge of the agent or the attorney; in either 
 case the verification may be made by the agent of or the 
 attorney for the party. 
 
 Notes to section 164. 
 
 This section is the same as section 525 of the Code of Civil Pro- 
 cedure, relating to courts of record. Section 524 of the Code of Civil 
 Procedure, which is substantially similar to section 163 of this act, is 
 entitled " Form and construction of certain allegations and denials 
 in verified pleadings." Section 526 of said Code is entitled " Form of 
 affidavit of verification," which has been omitted from this act, and 
 is probably made applicable by the general provisions of section 20 
 of this act. 
 
 Association. — Must be in the name of the person suing, or if by any 
 other officer, it must be as agent or attorney. Tallmadge v. Lounds- 
 bury, 23 Abb. N. C. 331. 
 
 Attorney. — A statement that the attorney " could not find the party 
 in the city " gives no sufficient reason for a verification by an attorney, 
 and such an answer may be treated as a nullity. Lyons v. Murat, 54 
 How. Pr. 23. And see Duparquet v. Fairfield, 49 Hun, 471. 
 
 Corporaticn. — See American Insulator Co. v. Bankers, etc., 13 Daly, 
 200; Kelly v. Woman's Pub. Co., 15 Civ. Proc. Rep. 259, 4 N. Y. 
 Supp. 99. 
 
 Date. — Failure to insert the date in a verification not fatal. Griffin 
 v. Barton, 21 Misc. Rep. 513: Babcock v. Kuntsch, 85 Hun, 33. 
 
 Defective verification; remedy. — See § 528, Code Civ. Proc. The veri- 
 fication of an answer to a duly verified complaint, which states that 
 " the foregoing answer is true," omitting the words " to his knowl- 
 edge," is insufficient, and the plaintiff may return the answer, and 
 proceed as on failure to answer. Sexauer v. Bowen, 3 Daly, 405 ; s. c, 
 10 Abb. N. S. 335; Snaps v. Gilbert, 13 Hun, 494. See Fusco v. Adams, 
 19 Civ. Proc. Rep. 48. 
 
 Knowledge. — Where all the allegations are made upon the knowledge 
 of the person verifying, the affidavit may omit the statement as to in- 
 formation and belief. Ladue v. Andrew, 54 How. 160. 
 
 § 165. Exhibition of accounts at instance of adverse party 
 may be ordered. — The court may at the time of pleading, or 
 at any other time before the trial, require the plaintiff or 
 defendant to exhibit to the inspection of the adverse party, 
 with liberty to copy the same, any writing or account de-
 
 272 Pleadings. § 166. 
 
 clared on or set up in the way of offset or counterclaim, or 
 if not so exhibited, may prohibit its afterward being given 
 in evidence. 
 
 Notes to section 165. 
 
 This section is the same as section 1301 of the Consolidation Act 
 (Laws 1882, chap. 410), which was taken from section 24, chapter 344, 
 Laws 1857, and was, in addition to section 2942 of the Code of Civil 
 Procedure, relating to justices' courts, made applicable to this court 
 by section 1347 of the Consolidation Act. It applies only to " any 
 writing or account " and is distinct from a bill of particulars. See 
 § 531, Code Civ. Proc. Bill of particulars is provided for in this act 
 by section 145, subdivisions 1 and 6, although there is no provision 
 for a demand for the same. 
 
 Account and bill of particulars. — As to the difference between them, 
 see Giles v. Jietz, 15 Abb. Pr. 285, which refers to the latter, and Wil- 
 liams v. Shaw, 4 Abb. Pr. 209, to the former. 
 
 Debits and credits should be given in an itemized statement. Dowd- 
 ney v. Volkening, 37 N. Y. Super. 313. 
 
 Detailed statement. — The copy account need not, it seems, give a 
 detailed statement of the amounts received from the adverse party 
 on such account. Williams v. Shaw, 4 Abb. Pr. 209; Ryckman v. 
 Haight, 15 Johns. 222; Gillies v. Betz, 15 Abb. Pr. 285. 
 
 For further notes applicable to this section, see notes to § 145, 
 " Bill of particulars." 
 
 § 166. Amendment of pleadings — The court must, upon 
 application, allow a pleading to be amended, at any time, 
 if substantial justice will be promoted thereby. Where a 
 party amends his pleading, after joinder of issue, or pleads 
 over upon the decision of a demurrer, and it is made to 
 appear to the satisfaction of the court, by oath, that an 
 adjournment is necessary to the adverse party, in conse- 
 quence of the amendment or pleading over, an adjournment 
 must be granted. The court may also, in its discretion, 
 require, as a condition of allowing an amendment, the pay- 
 ment of costs to the adverse party. 
 
 Notes to section 166. 
 
 This section is substantially the same as section 2944 of the Code 
 of Civil Procedure, relating to justices' courts, which was made ap- 
 plicable by section 1347 of the Consolidation Act (Laws 1882, chap. 
 410).
 
 § 167. Pleadings. 273 
 
 Allowance of amendment is mandatory upon the court. — It is man- 
 datory to allow a pleading to be amended at any time before trial, or 
 during the trial, if substantial justice will be promoted thereby, and 
 a refusal to allow amendment in a proper case is appealable. King v. 
 Dorman, 26 Misc. Rep. 133, 55 N. Y. Supp. 876. See also Milch v. The 
 Westchester, etc., 13 Misc. Rep. 231. 
 
 Where the complaint was for coal sold and delivered on the order 
 of defendant's wife, — Held, that the justice should have permitted an 
 amendment at the trial so as to make the complaint for necessaries 
 furnished. Thedford v. Reade, 28 Misc. Rep. 563, 59 N. Y. Supp. 537. 
 
 Demurrer. — If the demurrer is well founded the court must permit 
 an amendment. Morris v. Hunken, 40 App. Div. 129, 57 N. Y. Supp. 
 712. See also Stem v. Drinker, 2 E. D. Smith, 402; Glass v. Kewlson, 
 3 Abb. Pr. 100; Hillard v. Austin, 17 Barb. 141. 
 
 Justice volunteering. — It is not proper for the justice to volunteer 
 to make amendments not moved for by either party. Lloyd v. Fox, 1 
 E. D. Smith, 101 ; Enright v. Seymour, 8 N. Y. St. Rep. 356. 
 
 Material variance between the pleading and proof; how provided for, 
 and amendment on terms. See § 172. 
 
 Mistake in name of defendant is waived if not pleaded. City of 
 Neiv York v. Union Ry. Co., 31 Misc. Rep. 451, 64 N. Y. Supp. 483. 
 
 New cause of action, or new defense, may be introduced by amend- 
 ment, though a reasonable adjournment should be granted, if required, 
 and such costs imposed as are proper. Hawkes v. Burke, 34 Misc. Rep. 
 189, 68 N. Y. Supp. 798. 
 
 Code Civ. Proc, § 3377, subd. 6, extending to all courts the pro- 
 visions of section 723, authorizing amendments not substantially chang- 
 ing the cause of action or defense, does not limit the power of amend- 
 ment given to municipal courts by section 2944, authorizing any 
 amendment ; but a municipal court may grant an amendment, though 
 involving a new cause of action or defense. Shirtcliffc v. Wall, 68 
 App. Div. 375. 74 X. Y. Supp. (10S St. Rep.) 189. See also Doughty 
 v. Crozier, 9 Abb. Pr. 411; Cooper v. Kinney, 6 Abb. Pr. 380; Hatches 
 v. Burke, 34 Misc Rep. 189. To the contrary, see Batch v. Wure- 
 burger, 9 Misc. Rep. 74; Dotes v. Morrison, 2 Misc. Rep. 54. 
 
 Payment. — A justice of this court has power to permit an amend- 
 ment at the trial setting up payment. Majansky v. Lipman, 33 Misc. 
 Rep. 747. 67 X. Y. Supp. 84. 
 
 Tort and contract. — This court has power to allow an amendment of 
 a complaint for conversion, changing the allegations from tort to those 
 of breach of contract. Doughty v. Crozier, 9 Abb. Pr. 411; Cooper v. 
 Kinney, 6 Abb. Pr. 380; Hawkes v. Burke, 34 Misc. Rep. 189. 
 
 § 167. Private statute; how pleaded. — In pleading a pri- 
 vate statute, or a right derived therefrom, it is sufficient to 
 
 18 "
 
 274 Pleadings. §§ 168, 169, 170. 
 
 designate the statute by its chapter, year of passage and 
 title, or in some other manner with convenient certainty,, 
 without setting forth any of the contents thereof. 
 
 Notes to section 167. 
 
 This section is the same as section 530 of the Code of Civil Proce- 
 dure, applicable to courts of record. 
 
 For notes under the subject of "Pleading," see § 149, "Complaint; " 
 § 150, " Answer, what to contain." 
 
 § 168. Judgments; how pleaded. — In pleading a judgment, 
 or other determination of a court or officer of special juris- 
 diction, it is not necessary to state the facts conferring juris- 
 diction; but the judgment or determination may be stated 
 to have been duly given or made. If that allegation is con- 
 troverted the party pleading must on the trial establish the 
 facts conferring jurisdiction. 
 
 Notes to section 168. 
 
 This section is the same "as section 532 of the Code of Civil Proce- 
 dure, applicable to courts of record. 
 
 For further notes upon pleading, see §§ 149 and 150. 
 
 §169. Conditions precedent; how pleaded. — In pleading 
 the performance of a condition precedent in a contract it is 
 not necessary to state the facts constituting performance; 
 but the party may state generally that he or the person 
 whom he represents duly performed all the conditions on 
 his part. If that allegation is controverted he must on the 
 trial establish performance. 
 
 Notes to section 169. 
 
 This section is the same as section 533 of the Code of Civil Proce- 
 dure, relating to courts of record. 
 
 For further notes upon pleading, see §§ 149 and 150. 
 
 170. Pleadings to be liberally construed. — The allega- 
 tions of a pleading must be liberally construed, with a view 
 of substantial justice between the parties.
 
 §§ 171, 172, 173, 174. Pleadings. 275 
 
 Note to section 170. 
 
 This section is the same as section 519 of the Code of Civil Proce- 
 dure, relating to courts of record. 
 
 § 171. Immaterial variance in pleading to be disregarded 
 
 A variance between an allegation in a pleading and the 
 proof, must be disregarded as immaterial, unless the court 
 is satisfied that the adverse party has been misled thereby, 
 to his prejudice. 
 
 Note to section 171. 
 
 This section is the same as section 2943 of the Code of Civil Pro- 
 cedure, relating to justices' courts, which was made applicable to this 
 court by section 1347 of the Consolidation Act (Laws 1882, chap. 
 410). 
 
 § 172. Material variances; how provided for. — A variance 
 between an allegation in a pleading and the proof is not 
 material unless it has actually misled the adverse party to 
 his prejudice in maintaining his action or defense on the 
 merits. If a party insists that he has been misled that fact 
 and the particulars in which he has been misled must be 
 proved to the satisfaction of the court. Thereupon the 
 court may in its discretion order the pleading to be amended 
 on such terms as it deems just. 
 
 Note to section 172. 
 
 This section is the same as section 539 of the Code of Civil Pro- 
 cedure, applicable to courts of record. 
 
 § 173. What to be deemed a failure of proof Where, how- 
 ever, the allegation to which the proof is directed is un- 
 proved, not in some particular or particulars only, but in 
 its entire scope and meaning, it is not a case of variance 
 within the last two sections, but a failure of proof. 
 
 Note to section 173. 
 
 This section is the same as section 541 of the Code of Civil Pro- 
 cedure, applicable to courts of record. 
 
 § 174. Partial defenses. — A partial defense may be set 
 forth, but it must be expressly stated to be a partial defense
 
 276 Pleadings. §§ 17."., L76L 
 
 to the entire complaint, or to one or more separate causes 
 of action therein set forth. On a demurrer thereto the 
 question is whether it is sufficient for that purpose. Matter 
 tending only to mitigate or reduce damages in an action to 
 recover damages for a personal injury, or an injury to prop- 
 erty, is a partial defense within the meaning of this section. 
 
 Note to section 174. 
 
 This section is substantially the same as section 508 of the Code 
 of Criminal Procedure, relating to courts of record. 
 
 § 175. Complaint in actions by or against corporations. — In 
 an action brought by or against a corporation, the complaint 
 must aver that the plaintiff, or the defendant, as the case 
 may be, is a corporation; must state whether it is a domestic 
 corporation or a foreign corporation; and, if the latter, the 
 state, country or government, by or under whose laws it 
 was created. But the plaintiff need not set forth, or speci- 
 ally refer to, any act or proceedings by or under which the 
 corporation was created. 
 
 Notes to section 175. 
 
 This section is the same as section 1775 of the Code of Civil Pro- 
 cedure, relating to courts of record. 
 
 For notes as to "Complaint" and "Answer," see §§ 149 and 150. 
 
 § 17';. When proof of corporate existence unnecessary. — In 
 an action brought by or against a corporation, the plaintiff 
 need not prove, upon the trial, the existence of the corpora- 
 tion unless the answer is verified and contains an affirmative 
 allegation that the plaintiff, or the defendant, as the case 
 may be, is not a corporation. 
 
 Notes to section 176. 
 
 This section is the same as section 1776 of the Code of Civil Pro- 
 cedure, relating to courts of record. 
 
 Proof of rest of case must however he mr.de, although the defend- 
 ant is in default. Croicn, etc. v. Fitzgerald, 14 N. Y. St. Rep. 427.
 
 §§ 177, 178. Pleadings. l'77 
 
 § 177. Misnomer; when waived. — In an action or special 
 proceeding brought by or against a corporation, the defend- 
 ant is deemed to have waived any mistake in the statement 
 of the corporate name, unless the misnomer is pleaded in the 
 answer or other pleading in the defendant's behalf. 
 
 Note to section 177. 
 
 This section is the same as section 1777 of the Code of Civil Pro- 
 cedure, relating to courts of record. See notes to "Pleadings;" 
 " Complaint," § 149, and "Answer," § 150. 
 
 § 178. Pleadings in actions on bastardy bonds. — The plead- 
 ings and proceedings in actions in which the people of this 
 state are a party, where snch actions are brought by the over- 
 seers of the poor or the commissioners of public charities 
 and correction, upon bastardy or abandonment bonds, shall 
 be the same as in actions brought on bonds with conditions 
 other than for the payment of money, and for any breach 
 of the condition of such bond given in cases of bastardy 
 which shall happen after the recovery of any damages or 
 the commencement of any suit, the municipal court in the 
 district in which the action was originally brought shall 
 have power to issue a new summons, and upon the return 
 thereof to ascertain the amount of damages arising from 
 said breach, and to give judgment accordingly; and in suits 
 upon bonds given in abandonment cases the court shall have 
 the same power as to requiring further security or commit- 
 ting defendant in default thereof, as are conferred by law, 
 upon the judges of courts of record in similar cases. 
 
 Note to section 178. 
 
 This section is substantially the same as section 1348 of the Con- 
 solidation Act (Laws 1882, chap. 410), which was the second clause 
 of section 1, chapter 389, Laws 1862. It assumes that section 1, sub- 
 division 4, has given this court jurisdiction of actions upon bastardy 
 and abandonment bonds, which it has not, as no case where it is 
 prescribed by law that such an action can be maintained can be found. 
 Laws 1862, chap. 389, § 1, was such a case where it was prescribed 
 by law that such an action could be maintained, but that law was 
 repealed by Laws 1880, chap. 245, and Laws 1881, chap. 537, and no
 
 278 Pleadings. § 179. 
 
 law prescribing that such an action can be maintained has since 
 been enacted in place of it, or otherwise. See notes to § 1, subd. 4, as 
 to whether this court has jurisdiction in an action upon a bastardy 
 or abandonment bond. See § 339. See also § 30 as to " Alias sum- 
 mons.'' 
 
 § 179. Answer of title. — The defendant may, either with 
 or without other matter of defense, set forth in his answer 
 facts showing that the title to real property will come in 
 question. Such an answer must be in writing, and it must 
 be signed by the defendant, or his attorney or agent, and 
 delivered to the court. The court must, thereupon, counter- 
 sign the answer, and deliver it to the plaintiff. 
 
 Notes to section 179. 
 
 This section is the same as section 1349 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as section 2951 of the 
 Code of Civil Procedure, relating to justices' courts. 
 
 This defense is not as often interposed in this court as it is in 
 courts of justices of the peace in the country, and therefore the prac- 
 titioner is referred to Cowen's Treatise, Throop's New York Justices' 
 Manual, and the decisions under sections 2951 to 2958, both inclusive, 
 of the Code of Civil Procedure, under "Courts of justices of the peace 
 and proceedings therein." See also subd. 2, § 2863, of said Code. 
 
 Amended answer. — An answer of title may be interposed by an 
 amended answer after an adjournment. Hinds v. Page, 6 Abb. N. S. 
 58; Weeks v. Strdble, 30 How. 123. 
 
 Board of health. — By charter, § 1262, it is provided that the " court 
 shall not lose jurisdiction of any action by reason of a plea that 
 title to real estate is involved, provided the defendant is sought 
 by the pleadings to be charged in said action on any of the grounds 
 mentioned in this chapter, other than by virtue of ownership of such 
 real estate." 
 
 No jurisdiction. — By section 2 of this act this court has no jurisdic- 
 tion where the title to real property comes in question, except in 
 summary proceedings. See also Quinn v. Quinn, 46 App. Div. 241 ; 
 huge v. Crosby, 35 Misc. Rep. 117. Where the parties consent to try 
 cause where title is in issue, it will not confer jurisdiction upon the 
 justice. Stryker v. Motr. 6 Wend. 645, 4 How. 44. 
 
 Retention of undertaking. — Where the answer of title is in proper 
 form, a retention of the undertaking is sufficient to oust the court of 
 jurisdiction. Manfredi v. Wiederman, 14 Misc. Rep. 342. 
 
 When title comes in question. — Where, in an action by an assignee 
 of a lessor of a lease in fee, to recover rent, the complaint alleged that
 
 § 180. Pleadings. 279 
 
 the plaintiff became the owner of the rent, and seized in fee of the 
 estate, and the defendant denied all allegations of the complaint. Main 
 v. Cooper, 26 Barb. 468. 
 
 Where one is charged with liability arising out of being owner of 
 land, and he disclaims being the owner, this raises a question of title. 
 Ryan v. Harrigan, 9 Hun, 520; Alleman v. Bey, 49 Barb. 641. 
 
 An allegation that the defendants are the owners in fee of the prem- 
 ises, at the time of the alleged trespass, is sufficient to raise the ques- 
 tion of title to real property. Manfredi v. Wiederman, 14 Misc. Rep. 
 342. 
 
 Title embraces the right to possession and everything but the bare, 
 naked possession. Ebbe v. Quackenbush, 6 Hill, 537. See also Rath- 
 bone v. McConnell, 21 N. Y. 466; Clow v. Van Loan, 4 Hun, 184. 
 
 When title does not come in question. — The introduction of a deed 
 to establish some other fact than title does not raise a question of 
 title. Xicols v. Bain, 27 How. 286; Heintz v. Dellinger, 28 How. 39; 
 s. c, 42 Barb. 53. 
 
 Title does not come in question in a suit to recover a tax paid by 
 mistake by the plaintiff on a lot of defendant, the defendant's title 
 not being disputed on the trial. Nixon v. Jenkins, 1 Hilt. 318. 
 
 In the trial of an action no question of title to certain realty arose 
 on the pleadings ; plaintiff however sought to prove his possession 
 by oral testimony. Defendant objected on the ground that plaintiff's 
 right to possession was put in issue, whereupon plaintiff duly proved 
 his title thereto. The trial judge also certified that a claim of title 
 to realty came in question. Held, that, as title was proven in answer 
 to defendant's objection, he cannot now say that such objection was 
 unfounded, and that the question of title did not property arise on the 
 trial. Foster v. Romer, 15 Week. Dig. 487. See also Collins v. Adams, 
 10 X. Y. St. Rep. 48. 
 
 Where the complaint is so drawn that the defendant can set up a 
 title in his answer, but he omits to do so, the justice retains his 
 jurisdiction, and the defendant will be precluded from drawing it 
 in question on the trial. Adams v. Rivers, 11 Barb. 390; Fred, d 8. 
 Plankroad Co. v. Wait, 27 Barb. 214; Broun v. Scofield, 8 Barb. 239. 
 
 The question of actual possession is not a question of title. Rath- 
 hour v. McConnell, 21 N. Y. 466; Clow v. Van Loan, 4 Hun. 1S4. See 
 also Ebbe v. Quackenbush, 6 Hill, 537. 
 
 Penalty for failure to deliver undertaking is that the court has 
 jurisdiction to proceed, and the defendant is precluded in his de- 
 fense from denying the title in question. See § 183. 
 
 § 180. Defendant in answer of title to deliver undertaking. 
 — In the case specified in the last section, the defendant 
 must also deliver to the court, with the answer, a written
 
 280 Pleadings. §§ 181, 182. 
 
 undertaking, executed by one or more sureties, approved by 
 the court, to the effect that, if the plaintiff, within twenty 
 days thereafter, deposits with the court a summons and 
 complaint in a new action, for the same cause, to be brought 
 in the proper court, as prescribed in the next section, the 
 defendant will, within twenty days after the deposit, give 
 a written admission of the service thereof. Where the de- 
 fendant was arrested in the action before the court, the 
 undertaking must further provide that he wall, at all times, 
 render himself amenable to any mandate which may be 
 issued to enforce a final judgment in the action so brought. 
 If the defendant fails to comply with the undertaking, the 
 sureties are liable thereupon to any amount for which judg- 
 ment might have been rendered by the municipal court, if 
 the answer and undertaking had not been delivered. 
 
 Notes to section 180. 
 
 This section is the same as section 1350 of the Consolidation Act 
 (Laws 1882, chap. 410), substituting the word '-court" for "justice," 
 which is the same as section '2952 of the Code of Civil Procedure, relat- 
 ing to justices' courts. 
 
 Defense. — The defense of title will not avail, unless an undertaking 
 is furnished. Little v. Dean, 34 N. Y. 452. See § 2, subd. 1, and 
 notes. 
 
 § 181. New action to be brought in supreme court The 
 
 court, in which a new action is to be brought, as prescribed 
 in the last section, is the supreme court- 
 Note to section 181. 
 
 This section is the same as section 1351 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as section 2953 of the Code 
 of Civil Procedure, relating to justices' courts. 
 
 § 182. Old action; thereupon discontinued. — Upon the de- 
 livery of the undertaking to the court, the action is discon- 
 tinued, and each party must pay his own costs. If the plain- 
 tiff fails to deposit with the court a summons and complaint 
 in the new action, before the expiration of twenty days after 
 the delivery of the undertaking, the defendant may main-
 
 §§ 183, 184. Pleadings. 281 
 
 tain an action against the plaintiff to recover costs before 
 the court. 
 
 Notes to section 182. 
 
 This section is the same as section 1352 of the Consolidation Act 
 (Laws 1882. chap. 410) and section 2954 of the Code of Civil Proce- 
 dure, applicable to justices' courts, with the provision as to costs 
 omitted so as to conform to section 332, subdivision 2, of this act. 
 
 Costs after discontinuance upon answer of title. — See § 337. 
 
 § 183. Penalty for failure to deliver undertaking. — If the 
 undertaking is not delivered to the court, it has jurisdiction 
 of the action, and must proceed therein, and the defendant 
 is precluded in his defense, from drawing the title in 
 question. 
 
 Note to section 183. 
 
 This section is the same as section 1353 of the Consolidation Act 
 (Laws 1882, chap. 410) and section 2955 of the Code of Civil Pro- 
 cedure, applicable to justices' courts, with the exception of the word 
 '• justice " changed to the word " court." 
 
 § 184. Title appearing from plaintiff's own showing. — If, 
 however, it appears upon the trial, from the plaintiff's own 
 showing, that the title to real property is in question, and 
 the title is disputed by the defendant, the court must dis- 
 miss the complaint, with costs, and render judgment against 
 the plaintiff accordingly. 
 
 Notes to section 184. 
 
 This section is the same as section 1354 of the Consolidation Act 
 (Laws 1882, chap. 410) and section 2956 of the Code of Civil Proce- 
 dure, relating to justices' courts, with the exception of the word 
 " justice " changed to the word " court." 
 
 Dismissal. — In all cases, even where the defenaant omits to plead 
 title, if it appears on the trial, from the plaintiff's own showing, that 
 the title comes in question, and shall be disputed by the defendant, the 
 justice must dismiss the action. 11 Barb. 390, 20 Wend. 96, 6 Hill, 
 44, 271. 
 
 On a motion to dismiss, the defendant must specifically raise the 
 point that the title to real property comes in question. Brown v. Sco- 
 field, 8 Barb. 239. 
 
 Costs where title to real property in question. — See § 338.
 
 282 Pleadings. §§ 186, 187. 
 
 § 185. Same cause of action, and defense in new action In 
 
 the new action, to be brought after an action before a court 
 is discontinued, by the delivery of an answer and an under- 
 taking, as prescribed in the last six sections, the plaintiff 
 must complain for the same cause of action only upon which 
 he relied before the court, and the defendant's answer must 
 set up the same defense only which he made before the 
 court. If the action is to recover a chattel which was re- 
 plevied in the municipal court, each undertaking, given in 
 the municipal court, continues to be valid in, and is applica- 
 ble to, the new action. 
 
 Note to section 185. 
 
 This section is the same as section 1355 of the Consolidation Act 
 (Laws 1882, chap. 410) and section 2957 of the Code of Civil Proce- 
 dure, applicable to justices' courts, except the word " justice " stricken 
 out, and the word " court " changed therefor, and " justice's court " to 
 " municipal court." 
 
 § 186. Answer to title interposed as to only one or more of 
 several defenses; proceedings thereupon. — Where in an action 
 before the court, the plaintiff has two or more causes of ac- 
 tion, and the defense that the title to real property will come 
 in question, is interposed as to one or more, but not as to all 
 of them, the defendant may deliver an answer and under- 
 taking as prescribed in this article, with respect to the cause 
 or causes of action only, in which title will so come in ques- 
 tion. Whereupon the court must discontinue the action as 
 to those causes of action only, the plaintiff may commence 
 a now action therefor in the proper court, and the original 
 action must proceed as to the other causes. 
 
 Note to section 186. 
 
 This section is the same as section 1356 of the Consolidation Act 
 (Laws 1882, chap. 410) and section 2858 of the Code of Civil Proce- 
 dure, applicable to justices' courts, with the exception of the word 
 " justice " changed to " court," and this act is referred to. 
 
 § 187. Interpleader by order in certain cases — A defendant 
 against whom an action to recover upon a contract, or an
 
 § 1ST. Pleadings. 283 
 
 action to recover a chattel, is pending, may, at any time 
 before answer, upon proof, by affidavit, that a person, not 
 a party to the action, makes a demand against him for the 
 same debt or property, without collusion with him, apply 
 to the court, upon notice to that person, and the adverse 
 party, for an order to substitute that person, in his place, 
 and to discharge him from liability to either, on his paying 
 into court the amount of the debt, or delivering the 
 possession of the property, or its value, to such person as 
 the court directs; or upon it appearing that the defendant 
 disputes, in whole or in part, the liability as asserted against 
 him by different claimants, or that he has some interest in 
 the subject matter, of the controversy which he desires to 
 assert, his application may be for an order joining the other 
 claimant or claimants, as co-defendants with him in the ac- 
 tion. The court may, in its discretion, make such order, 
 upon such terms as to costs and payments into court of the 
 amount of the debt, or part thereof, or delivery of the pos- 
 session, of the property, or its value or part thereof, as may 
 be just and thereupon the entire controversy may be deter- 
 mined in the action. 
 
 Notes to section 187. 
 
 This section is the same as section 820 of the Code of Civil Pro- 
 cedure, the words " or an action of ejectment " being omitted, because 
 this court has no jurisdiction in such an action. 
 
 Commiscion to take testimony. — In an action to procure an inter- 
 pleader, where one of the defendants denied the plaintiff's right to 
 that relief, held, that a commission to take testimony out of the State 
 might be issued, but the testimony must be confined to the questions 
 arising en the right to interplead, and not upon the merits of the claim. 
 Kemp v. Dickinson, 22 Hun, 593. 
 
 Discretionary. — The application is addressed to the discretion of the 
 court, and ought not to be granted where it appears on the face of the 
 papers that the claim of one of the claimants is clearly unfounded. 
 Pustet v. Flannelly, 60 How. Pr. 67. 
 
 It must be shown that there is a reasonable foundation for the claim 
 made by the proposed party, and that the stakeholder cannot determine 
 which to pay to without peril. Steiner v. East River Savings Institu- 
 tion, 60 App. Div. 232, 70 N. Y. Supp. 223. 
 
 Doctrine. — As to the general doctrine of interpleader, see Dows v. 
 Kidder. 84 N". Y. 121; Barnes v. The Mayor, 27 Hun, 236.
 
 28 ± Pleadings. § 1ST. 
 
 History or review of this subject by the courts, bee the case of 
 Beer V. Bcnner, 11 Daly, 229. 
 
 Judgment creditors. — A defendant, sued for money collected by him 
 as agent for the plaintiff's assignor, is not entitled to an order to inter- 
 plead, upon an affidavit stating that other persons claim the same money 
 under judgments against the assignor. Delancy v. Murphy, 24 Hun, 
 503; Sigel v. Cohen, 2 Misc. Rep. 368. 
 
 Order for practice. — Where an interpleader is ordered, the order 
 should require the party brought in by the interpleader to appear and 
 answer a complaint served upon him with the order, in the same time 
 that a defendant is required to answer a summons, and should provide 
 that the money in court shall be paid to the plaintiff in case of his 
 failure to appear and answer. If the party appear and answer, the 
 issue raised may be tried by the court, unless a jury be demanded at 
 the joinder of issue. Upon the entry of a judgment the money must 
 be paid to the prevailing party, unless an undertaking sufficient to 
 stay proceedings be given and costs should be awarded against the 
 losing party. McElroy v. Baer et al., 13 Daly, 442. 
 
 Liability. — An interpleader by order will not be granted where the 
 defendant contests his liability. Brcnnan v. Liverpool & L. cG G. Ins. 
 Co., 12 Hun, 62. Or where he has a good defense as to one of the 
 claimants. Conner v. ~\Yebcr, 12 Hun, 580. 
 
 Life insurance. — Where the widow and an assignee of a deceased 
 policyholder claimed the amount insured upon the life of the deceased 
 by a life insurance company, and the latter sued the company, the 
 widow was substituted as defendant by an order of interpleader. Foir- 
 ler v. Butterly, 78 N. Y. 68. See also Lateer v. Prudential Ins. Co., 
 64 App. Div. 423, 72 N. Y. Supp. 235. 
 
 Merchandise. — Where the plaintiff purchased from the defendant A. 
 a quantity of merchandise, and the defendant R., the receiver of a cor- 
 poration, presented a bill for the merchandise and demanded payment 
 therefor, threatening to sue him for the amount, — Held, that an action 
 for an interpleader would lie. B. d- 0. R. R. Co. v. Arthur, 10 Abb. 
 N. C. 147. 
 
 Warehouseman. — The privilege of Laws 1805, chap. 633, relieving a 
 warehouseman from being made a party to an action, unless he claims 
 an interest other than a lien for warehouse charges, cannot be invoked 
 by a party whom it is sought to bring in in the place of the warehouse- 
 man, as defendant. Follett, etc. v. Albany, etc., 61 App. Div. 296, 70 
 N. Y. Supp. 474. 
 
 Note. — There are no sections from 187 to 193.
 
 § 193. Adjournments ; Subpcenas ; Witnesses. 2S5 
 
 TITLE V. 
 
 Proceedings between Joinder of Issue and Trial. 
 
 Article I. Adjournments; subpoenas; attendance of witnesses. 
 II. Commissions and depositions. 
 
 ARTICLE I. 
 
 Adjournments; Subpoenas; Attendance of Witnesses. 
 
 Section 193. Trial may be adjourned, when. 
 
 194. Adjournment longer than eight days; undertaking. 
 
 195. Conditions may be imposed. 
 
 196. Attendance of witnesses. 
 
 197. How subpoena served. 
 
 198. Warrant of attachment against defaulting witness. 
 
 199. How executed; fees thereupon. 
 
 200. Defaulting witness liable for damages, and penalty of 
 
 fifty dollars. 
 
 § 193. Adjournments; trial may be adjourned; when. — The 
 trial of the action may be adjourned by the court, or on the 
 application of either party, for a period not exceeding eight 
 days at any one adjournment, unless the defendant is under 
 arrest, in which case it shall not be adjourned to exceed 
 forty-eight hours, except upon the application of the defend- 
 ant, in accordance Avith the provisions of section sixty- 
 seven of this act. Except that an adjournment for 
 more than forty-eight hours where the defendant is un- 
 der arrest, may be granted on application of the plain- 
 tiff by discharging the defendant from custody and the 
 action may then proceed notwithstanding such discharge; 
 and the defendant shall be subject to arrest on the exe- 
 cution, in the same manner as if he had not been so dis- 
 charged. The trial may be adjourned for a longer period 
 by consent, or where neither party objects to the same, ex- 
 cept as otherwise expressly prescribed in this act. 
 
 Notes to section 193. 
 
 This section is taken from sections 1362 and 1363 of the Consolidation 
 Act (Laws 1882, chap. 410), which were the same as Laws 1857, chap.
 
 286 Adjournments j Subp(enas; Witnesses. ^193. 
 
 344, §§ 25 and 2(i, changed to suit section 07, " Undertaking by ar- 
 rested defendant on applying for adjournment," and also by adding 
 to the end thereof the words " except as otherwise expressly prescribed 
 by this act." 
 
 The following sections of this act also relate to adjournment: 
 
 Section 67, as above. 
 
 Section 194. "Adjournment longer than eight days; undertaking.'' 
 
 Section 195. " Conditions may be imposed." 
 
 Section 208. " Adjournment where commission granted." 
 
 Section 238. " Adjournments after return of jury." 
 
 Section 336. " Costs on adjournment." 
 
 Absence of a desired witness is not ground for claiming a postpone- 
 ment if there has been no subpoena or other effort made to secure his 
 attendance. Keller v. Feldman, 29 Abb. N. C. 427; s. c, 49 N. Y. St. 
 Rep. 718; Cahil v. Hilton, 31 Hun, 114. 
 
 Affidavits to obtain. — To entitle the defendant to demand an ad- 
 journment he must make an oath that he cannot safely proceed, for 
 want of some material testimony or witness. Lynsky v. Prendegrast, 
 2 E. D. Smith, 43. No witness is a " necessary witness " unless he is 
 a material witness, but a witness may be material without being a 
 necessary witness, and other witnesses, also material, may prove the 
 same facts. The party would be required to show that the witness 
 was both a material and necessary witness ( Young v. Scott, 3 Hill, 
 32) ; and this should be done by a statement of facts, and not as a mere 
 opinion. Murtha v. Walters, 2 Sandf. 517; Board of Excise of Saratoga 
 v. Doherty, 16 How. Pr. 46. 
 
 A party applying for a second adjournment must bring himself 
 within the statute, and show affirmatively and satisfactorily that he has 
 used due diligence to obtain the attendance of the absent witness. An 
 affidavit alleging that the witness was not within reach of the process of 
 the court on the day the affidavit was made is not sufficient. If the affi- 
 davit had allegea that the witness had been out of the reach of process 
 since the last adjournment, it would be sufficient. Christman v. Paul, 
 16 How. 17. 
 
 An affidavit in support of a motion for postponement of a trial made 
 by the sole defendant sued as indorser on a promissory note, which did 
 not show that she was a necessary and material witness in her own 
 behalf, that she had personal knowledge of any of the material facts or 
 took part in any of the transactions or negotiations connected with the 
 subject-matter of the action, — Held insufficient. National Bank of Pen- 
 sacola v. Anderson, 55 App. Div. 570, 67 N. Y. Supp. 434. 
 
 Consent; objection. — On an appeal, though the record shows an ad- 
 journment for more than eight days, consent will be presumed unless 
 the record shows an objection, and jurisdiction will be sustained. Wood 
 v, Spofford, 29 Misc. Rep. 357, 60 N. Y. Supp. 492.
 
 §194. Adjournments; Subpoenas; Witnesses. 287 
 
 Costs. — Justice may impose costs on adjournment, but failure to pay 
 them does not prevent defendant from taking part in the trial. Section 
 77!) of the Code does not apply to this court. Farber v. Hannan, 30 
 Misc. Rep. 627. 
 
 Discretionary. — In general, a justice has a discretion as to adjourn- 
 ment, and only a clear abuse of that discretion will be error. Onder- 
 donck v. Ranlett, 3 Hill, 323; Irroij v. Nathan, 4 E. D. Smith, 68; Weed 
 v. Lee, 50 Barb. 354; Rauson v. Grow, 4 E. D. Smith, 18. 
 
 Refusal to allow an adjournment in the midst of a trial, to enable a 
 party to procure the attendance of an expert in handwriting, — Held 
 not erroneous, being discretionary. Silver v. Elias, 34 Misc. Rep. 760, 
 68 N. Y. Supp. 851. 
 
 Exception. — Denial of a motion to postpone a trial, made at the 
 call of the day calendar, is not the subject of an exception. Wilkins v. 
 Beadiest on & Woerz, 33 Misc. Rep. 489, 67 N. Y. Supp. 683. 
 
 Length. — Unless a defendant executes an undertaking that he will 
 pay any judgment which may be recovered against him in the action, the 
 court has no power to grant him an adjournment for more than eight 
 days. Simon v. The Sheridan & Shea Co., 21 Misc. Rep. 489. 
 
 Not a matter of right. — A defendant upon return of summons is not 
 entitled to an adjournment as a matter of right upon his request, with- 
 out showing any reason therefor. Raivson v. Grow, 4 E. D. Smith, 18; 
 Ranney v. Gicynne, 3 E. D. Smith, 59. Nor is he entitled to an adjourn- 
 ment as a matter of right, on the ground that his counsel is engaged in 
 another court. Ranney v. Gicynne, 3 E. D. Smith, 59. 
 
 Trial from day to day. — The justice may continue the trial from 
 day to day, or from one day to another day or days, until the same is 
 finished. § 15. 
 
 § 194. Adjournment longer than eight days; undertaking. — 
 An adjournment may be had either at the joining of issue, 
 or at any subsequent time to which the cause may stand ad- 
 journed on application of either party, for a period longer 
 than eight days, but not to exceed ninety days from the re- 
 turn of the summons, upon executing an undertaking in 
 writing, with one or more sufficient sureties, to the effect 
 that he will pay to the plaintiff or defendant the damages, 
 costs and extra costs, in case judgment shall be rendered 
 against him in the action, upon proof by the oath of the party 
 or otherwise, to the satisfaction of the court, that such party 
 cannot be ready for trial before the time to which he desires 
 an adjournment, for the want of material evidence, describ- 
 ing it; that the delay has not been made necessary by any
 
 288 Adjournments; Subpcenas; Witnesses. §§195,196. 
 
 act or neglect on his part since the action was commenced, 
 and that he expects to procure the evidence at the time 
 stated by him. All bonds taken upon the adjournment of 
 any cause shall be good and valid against the obligor or 
 obligors, although subsequent adjournments are had after 
 the execution of such bond or obligation. 
 
 Notes to section 194. 
 
 This section is the same as section 1364 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as Laws 1857, chap. 344, 
 $ 26. 
 
 More than eight days. — A party is not entitled to a longer adjourn- 
 ment than eight days without a proper affidavit, and giving security 
 for his appearance and for payment of damages and costs. It seems 
 that when such affidavit or security are given, the statute gives the 
 justice no discretion, and the right to the adjournment is absolute. 
 Belshaw v. Colie, 1 E. D. Smith, 213. See also Irroy v. Nathan, 4 E. D. 
 Smith, 68. 
 
 Unless a defendant executes an undertaking that he will pay any 
 judgment which may be recovered against him in the action, the court 
 has no power to grant him an adjournment for more than eight days. 
 Simons v. The Sheridan, etc., 21 Misc. Rep. 489. 
 
 More than ninety days. — Adjournments of a cause by consent, aggre- 
 gating more than ninety days, do not divest the justice of jurisdiction. 
 First Nat. Bank of Buchanan v. Smith, 24 Misc. Rep. 709, 53 N". Y. 
 Supp. 795. 
 
 § 195. Conditions may be imposed. — The court may impose 
 upon the party applying for an adjournment such conditions 
 as to it may seem reasonable. 
 
 Notes to section 195. 
 
 This section is the same as section 1365 of the Consolidation Act 
 (Laws 1882, chap. 410), and Laws 1857, chap. 344, § 28, except the 
 word " court " is inserted for the word " justice." 
 
 Absent witness. — The justice may require the party to disclose what 
 is intended to be proved by the absent witness, and if refused, the 
 justice is fully warranted in denying the motion. Irroy v. Nathan, 
 4 E. D. Smith, 68. 
 
 § 196. Attendance of witnesses. — A subpoena requiring a 
 witness to appear and testify on the trial of an action, on
 
 § 19(i AdjouimstivIents ; Subjhestas ; Witnesses. 289 
 
 the demand of either party, shall be issued out of this court 
 by the clerk thereof, in the district in which the action is 
 pending, unless otherwise expressly provided in this act, 
 and may be served at any place within the city of New York. 
 The subpoena may require the witness, except as otherwise 
 expressly prescribed by law, to bring with him any book or 
 paper, relating to the merits of the action. 
 
 Motes to section 196. 
 
 This section is new, and is taken from section 1370 of the Consolida- 
 tion Act (Laws 1882, chap. 410), and section 2969 of the Code of Civil 
 Procedure, relating to justices' courts. 
 
 See tit. II, " Compelling the Attendance and Testimony of a Witness," 
 §§ 852 to 869, Code Civ. Proc., and tit. IV, art. 2, "Compelling the 
 Attendance of a Witness," §§ 2969 to 2979, Code Civ. Proc., relating to 
 justices' courts. 
 
 This section 196 and the following four sections, 197 to and in- 
 cluding section 200, are taken from said section of the Code applicable 
 to justices' courts, principally sections 2969, 2970, 2971, 2972, and 2979. 
 
 Books; inspection of. — The action was to recover for money ab- 
 stracted from the plaintiff's firm by the defendant, their bookkeeper, and 
 the defense was that the money was taken with the plaintiffs' consent, 
 under an agreement that the defendant was to have one-fourth of the 
 profits. The defendant subpoenaed one of the plaintiffs with a duces 
 tecum clause to produce the books of the firm, and on the affidavit of 
 the attorney, that he believed that the subpoena duces tecum was sewed 
 for the purpose of annoyance, and that it called for the production of 
 from forty-five to fifty books, the subpoena duces tecum was set aside. 
 Held, that the court erred in granting the application, and that, if the 
 subpoena was too broad, the court should have required the plaintiffs 
 to allow the defendant to inspect the books, or to furnish copies of the 
 material portions thereof. Clyde v. Rogers, 24 Hun, 145; appeal dis- 
 missed, s. c, 87 N. Y. 625. 
 
 The actual production of books and papers may be controlled by the 
 court, and if an order made for that purpose is oppressive, or if for 
 any reason a party ought to be relieved from any or all of its pro- 
 visions, the application should be made to the court wherein the order 
 was made. In re Kelly, 11 Week. Dig. 308. 
 
 Corporation; books of; how produced. — See Code Civ. Proc, § S68, 
 and Wertheim v. Continental Ry. & T. Co., 3 Civ. Proc. Rep. 71. 
 
 Detention. — A witness is not to be unreasonably detained. Const, of 
 1894, art. 1, § 5. 
 
 Discharge of witness. — A witness once subpoenaed and called to 
 testify upon a jury trial must remain until the trial is concluded, 
 
 19
 
 i M .»0 Adjournments; Subpoenas; Witnesses. §196. 
 
 unless discharged by consent or by the court. Weil v. Thorn, 88 N. Y. 
 270. 
 
 Excuse. — Belief that evidence of no benefit, no excuse. Boncsteel v. 
 Lynde, 8 How. 220; People v. Davis, 15 Wend. 602. 
 
 Nonpayment of fees, good excuse for nonattendance. Hurd v. Swan, 
 4 Den. 75; Bonestecl v. Lynde, 8 How. 220, 352. 
 
 Poverty is no excuse, unless amounting to inability to pay expenses 
 and provide for family. People v. Davis, 15 Wend. 002. 
 
 Nothing but extreme poverty, or inability to attend, or sickness of 
 himself or family, will excuse nonattendance. People v. Davis, 15 
 Wend. 602. 
 
 A person subpoenaed to attend forthwith as a witness has a reason- 
 able time to obey by means of ordinary methods. People v. Potter, 6 
 N. Y. St. Rep. 753. See also " Excuse for nonattendance," § 199. 
 
 Nonresident witness. — A nonresident witness coming here to attend 
 court is privileged against either arrest or service of a summons; a 
 resident witness or a nonresident party attending court is privileged 
 against arrest only. Jenkins v. Smith, 57 How. 171. See Frisbie v. 
 Young, 11 Hun, 474. 
 
 A witness attended at request of counsel. Held, that his attendance 
 was voluntary, and he was not privileged from arrest. The statute 
 only protects a witness attending under compulsion of a subpeena. 
 Hardenbrook's Case, 8 Abb. Pr. 457. 
 
 A resident of another county while attending court here may be 
 served with process where the court has jurisdiction, independently of 
 service in New York city. Sheldon v. Wakely, 3 Law Bull. 94. 
 
 The exemption from service of process of a witness who comes from 
 without the jurisdiction to attend a trial is a personal privilege only, 
 which is waived if not taken at the first opportunity, and cannot be 
 claimed for the first time on appeal from a judgment entered upon 
 default. Sebring v. Stryker, 10 Misc. Rep. 289. 
 
 Notice to produce. — Where the plaintiff gives notice to the defendant 
 that a document in his possession will be required at the trial, if neces- 
 sary to contradict his evidence, he may give secondary evidence of the 
 contents, without a notice to produce it. Lawson v. Bachman, 81 N. Y. 
 616. 
 
 In Kerr v. McGuire, 28 N. Y. 453, it was held notice to produce may 
 be oral in presence of the court, as each party is at least presumed to 
 have present all papers bearing on the case. See also Hooker v. Eagle 
 Bank, 30 N. Y. 87. 
 
 Every inference warranted by the evidence may be drawn against the 
 party who, knowing the truth and having the evidence, omits to pro- 
 duce it. Wylde v. Northern, etc., 53 N. Y. 156. See pp. 163, 164; s. 
 c., 14 Abb. Pr. N. S. 213. 
 
 Party refusing to produce a contract on notice, and parol proof being 
 given, inferences are to be taken most strongly against him. Cohen
 
 §197. Adjournments; Subpoenas; Witnesses. 291 
 
 v. Continental Life Co., 69 N. Y. 300, 309; Wylde v. Northern, etc., 53 
 N. Y. 163, 164. 
 
 Officer of domestic corporation. — It is the duty of a person upon 
 whom a subpcena duces tecum is served to obey it either personally or 
 by a subordinate who is competent to identify and testify, and where 
 he does so in person his attendance is not necessarily voluntary. 
 Sebring v. Stryker, 10 Misc. Rep. 289. 
 
 Privileged from arrest. — Code Civ. Proc, § 860. A person duly and 
 in good faith subpoenaed or ordered to attend, for the purpose of being 
 examined, in a case where his attendance may lawfully be enforced by 
 attachment or by commitment, is privileged from arrest in a civil action 
 or special proceeding, while going to, remaining at, and returning from, 
 the place where he is required to attend. 
 
 Public officer. — Personal attendance of, not required. The book or 
 paper may be produced by subordinate or employee. See Code Civ. Proc, 
 § 869. 
 
 Records not to be removed by virtue of subpoena. — Code Civ. Proc, 
 § 866. 
 
 Subpoena duces tecum; production of books of account and how a 
 witness may be relieved therefrom. See Code Civ. Proc, § 867. 
 
 Not necessary when witness admits possession in court of written 
 instruments. Boynton v. Boynton, 25 How. 490; s. c, 16 Abb. 87, 41 
 N. Y. 619. 
 
 § 197. How subpoena served. — A subpoena may be served 
 by any person over the age of eighteen years, and must be 
 served by delivering a copy thereof to the witness person- 
 ally, and by paying or tendering to him his lawful fee of 
 twenty-five cents for one days attendance as a witness, and 
 mileage as provided by the code of civil procedure. 
 
 Notes to section 197. 
 
 This section is new and is taken from section 1370 of the Consolida- 
 tion Act (Laws 1882, chap. 410), and section 2970 of the Code of Civil 
 Procedure, relating to justices' courts. 
 
 This section specifies the amount of witness fees, but does not 
 specify the amount of mileage, except to say " as provided by the Code 
 of Civil Procedure." 
 
 The Code of Civil Procedure as to " witness fees generally " is section 
 3318. Section 352 of this act again specifies the amount of witness 
 fees, and specifies the amount of mileage. 
 
 Fees. — A party is not entitled to witness fees for testifying in his 
 own behalf. Steers v. Miller, 30 How. 7, affg. 28 How. 266.
 
 292 Adjournments ; Subpoenas; Witnesses. £ 198. 
 
 One who attends in two causes may have fees in both. Hicks v. 
 tin nmiii, 10 Abb. 304; Fence v. Spier, 18 How. 108. 
 
 A witness served with a subpoena duces tecum is entitled only to the 
 ordinary witness fees. In re Corwin, 6 Abb. X. C. 437. 
 
 Waiver of fees must be express in order to subject the witness to 
 penalty for nonattendance. An implied waiver is not sufficient. Mus- 
 cott v. Runge, 27 How. Pr. 85. 
 
 A witness is not bound to refund fees paid him upon the service of 
 subpoena, because the cause is settled or put off. and lie is notified that 
 he need not attend. Ford v. Monroe, How. Pr. 20; s. c. 10 X. Y. 
 Leg. Obs. 155. 
 
 Habeas corpus to testify (see Code Civ. Proc, § 2010) may also be 
 issued by a justice of the Supreme Court, upon the application of a 
 party to an action pending before a justice of the peace or in a justice's 
 court of a city, or a District Court of the city of Xew York. 
 
 Mileage. — If a witness resides more than three miles from the place 
 of attendance, he is entitled to eight cents for each mile, going to the 
 place of attendance. § 352 of this act (Code Civ. Proc., § 3318). 
 
 § 198. 'Warrant of attachment against defaulting witness . 
 
 AVhere it is made to appear, to the satisfaction of the court, 
 by affidavit or other-proof, that a person duly subpoenaed to 
 attend before it in an action, has refused or neglected to 
 attend as a witness in obedience to the subpoena, and no 
 just cause for the neglect or refusal is shown to exist, and 
 the person is not privileged from attendance under any stat- 
 ute of the state, and the party, in whose behalf the witness 
 was subpoenaed, or his attorney, makes oath that the testi- 
 mony of the witness is material, the court must issue a war- 
 rant of attachment, directed generally to any marshal, for 
 the purpose of compelling the attendance of the witness. 
 
 Notes to section 198. 
 
 This section is the same as section 2971 of the Code of Civil Pro- 
 cedure, relating to justices' courts, except that the word " justice" has 
 been changed to the word "court." and "constable of the county'" to 
 " city marshal." 
 
 Excuse for nonattendance of witness; privilege of nonresident wit- 
 ness from service of summons and arrest and privilege of witness from 
 arrest. — See notes to § 196. 
 
 See notes to § 200 as to " Compelling the attendance of witness " and 
 " Fine and punishment."
 
 §§199,200. Adjournments ; Subpcenas; Witnesses. 293 
 
 § 199. How executed; fees thereupon. — Such a warrant of 
 attachment must be executed in the same manner as an 
 order of arrest. The fees of the marshal for serving it must 
 be paid by the person against whom it is issued, unless he 
 shows a reasonable excuse to the satisfaction of the court, 
 for his omission to attend, in which case the party pro- 
 curing the warrant must pay them, and if he recovers costs, 
 the amount thereof must be allowed to him as part of his 
 costs. 
 
 Notes to section 199. 
 
 This section is taken from section 2972 of the Code of Civil Proce- 
 dure, relating to justices' courts. 
 
 Sections 55 and 59, relating to proceedings on arrest, prescribe how 
 the warrant must be executed. 
 
 § 200. Defaulting witness liable for damages and penalty of 
 fifty dollars. — A person subpoenaed, as prescribed in this 
 act, who neglects or refuses to obey the subpoena, or to 
 testify, is also liable to the party, in whose behalf he was 
 subpoenaed, for all damages which the party sustains by 
 reason of his neglect or refusal, and fifty dollars in addi- 
 tion thereto, and is subject to any fine or punishment which 
 may be imposed in accordance with the provision of section 
 eight of this act. 
 
 Notes to section 200. 
 
 This section is taken from section 2979 of the Code of Civil Pro- 
 cedure, relating to justices' courts. Section 8, therein referred to, re- 
 lates to " Contempts punishable civilly " containing seven subdivisions 
 as to the cases in which the court has power to punish by fine and 
 imprisonment, or either, without specifying what the fine or imprison- 
 ment may be, as is specified in section 5 with regard to criminal con- 
 tempts of court enumerated in section 4. The reading of the present 
 section 200 is " and is subject to any fine or punishment which may be 
 imposed in accordance with the provisions of section 8 of this act." 
 We have endeavored to point out that there are no provisions in section 
 8 as to the amount of fine, or limit of the imprisonment as expressly 
 specified in sections 4 and 5 with regard to " Criminal contempts." 
 
 The " proceedings to punish a contempt of court other than a crim- 
 inal contempt " are to be found in title III, sections 2266 to 2292 of 
 the Code of Civil Procedure. Section 2284 relates to the "Amount of 
 fine," section 2285 to the "Length of imprisonment" etc., but these
 
 294 Adjournments; Subikenas; Witnesses. §200. 
 
 provisions, by section 2206 of said Code, apply to a court of record, and 
 there is no provision in the present act making them applicable to this 
 court, except perhaps section 20, which is questionable. 
 
 It is true that these provisions of the Code (§§ 2266 to 2292) are 
 not in conflict with the provisions of this act, and it may be therefore 
 that this court has the power to punish for civil contempts under those 
 sections of the Code the same as in a court of record, by virtue of 
 section 20, but nowhere else in this act are those sections made to 
 apply either directly or by implication. Subdivision 7 of section 8 is 
 quite sweeping, but it only relates to any other case in addition to the 
 other subdivisions in that section, and not to any amount of fine or 
 imprisonment to be imposed. 
 
 Compelling the attendance and testimony of a witness. — See §§ 852 
 to 869, Code Civ. Proc, and " Compelling the attendance of a witness" 
 §§ 2969 to 2979 of said Code. 
 
 Nonattendance of witness; remedies. — The remedies available to a 
 party injured by the nonattendance of a witness discussed. Courtney 
 v. Baker, 3 Den. 27. 
 
 To entitle plaintiff to recover he must prove that an action was pend- 
 ing in which the defendant might be a witness; that a subpoena was 
 issued and served; that a payment of fees was made; that he was a 
 material witness; that he did not appear; and damages. Muscott v. 
 Range, 27 How. 85. See Courtney v. Baker, 3 Den. 27; Carrington v. 
 Hutson, 28 Hun, 371. See also "Excuse for nonattendance," § 199. 
 
 Punishment of witness. — Statute must be strictly followed before 
 warrant can issue. Rutherford v. Holmes, 66 N. Y. 368. 
 
 Refusal to produce papers. — Where plaintiff had been subpoenaed by 
 the defendant to produce the bond in suit, the complaint was stricken 
 out for a continuous refusal, by his counsel, to produce the bond, which 
 he had in his pocket. Shelp v. Morrison, 13 Hun, 110. 
 
 No excuse that witness has lost or mislaid papers he was required to 
 produce, where there is a deliberate design to elude the process of the 
 court. Bonesteel v. Lynde, 8 How. 226, 352. 
 
 Note. — There are no sections from 200 to 205.
 
 § 205. Commission ; Depositions. 295 
 
 ABJTTCLE II. 
 
 Commission to Take Testimony; Depositions. 
 
 Section 205. Commission to take testimony, et cetera. 
 
 206. Commission on consent; deposition upon oral questions. 
 
 207. When and how commission granted. 
 
 208. Adjournment where commission granted. 
 
 209. How executed and returned. 
 
 210. Certificate of execution. 
 
 211. Certificate, a sufficient return. 
 
 212. When deposition may be suppressed. 
 
 213. Deposition, et cetera, evidence. 
 
 214. Power of commissioners. 
 
 215. Receipt of clerk; return of commission by. 
 
 216. Deposition to take testimony conditionally. 
 
 217. Affidavit on application; requirements of. 
 
 218. Deposition by consent. 
 
 219. Order for examination. 
 
 220. Punishment for disobeying order, witness fees. 
 
 221. Service of order. 
 
 222. Adjournment of examination. 
 
 223. Party confined in prison. 
 
 224. Rules for examination; manner of taking and returning 
 
 deposition ; refusal of person examined to answer. 
 
 225. Deposition may be read in evidence; when. 
 
 226. Effect of deposition. 
 
 §205. Commission to take testimony, et cetera. — Where 
 the defendant has neglected to appear upon the return of a 
 summons, or has failed to answer the complaint, or where 
 an issue of fact has been joined in an action; and it appears, 
 by affidavit, upon the application of either party, that a 
 witness, not within the city of ISTew York, is material in the 
 prosecution or defense of the action, the court may award 
 a commission to one or more competent persons, authorizing 
 them, or any of them to examine the witness under oath, 
 upon interrogatories to be settled by the court, or by writ- 
 ten agreement of the parties, and indorsed upon or annexed 
 to the commission; to take and certify the deposition of the 
 witness, and to return the same by mail, addressed to the 
 clerk of the court.
 
 296 Commission; Depositions. §§ 206, 207. 
 
 Notes to section 205. 
 
 This section is taken from section -I'.KSO of the Code of Civil Pro- 
 cedure, relating to justices' courts, which was made applicable to this 
 court by section 1308, Consolidation Act (Laws 1882, chap. 410). 
 
 Authority to be strictly followed. — The power is statutory and to 
 be strictly pursued. Baron v. People, 1 N. Y. 380 ; I'cndell v. Com., 20 
 N. Y. 134; Fleming v. Hollenback, 7 Barb. 271; Creamer v. Jackson, 4 
 Abb. Pr. 413; Smith v. Randall, 3 Hill, 495; Collins v. Schaffer, 29 N. 
 Y. Supp. 574. 
 
 Clerk to open and file commission on its return. — See § 215. 
 
 Regarded as process and amendable. — The writ of commission is to 
 be regarded as process, and is amendable wherever process is amendable. 
 An amendment will be allowed whenever it is in furtherance of justice, 
 if the court has jurisdiction of the action in which the amendment is 
 sought to be made. The general subject of amending process at com- 
 mon law and under the statute discussed 1 . Leetch v. Atlantic Mutual 
 Ins. Co., 4 Daly, 518. 
 
 Seal. — By section 18, this court has a seal; the courts of justices 
 of the peace have no seal. There seems to be no express provision of 
 law that the clerk or justice of the court should attach the seal of the 
 court to the commission. It certainly is proper that courts having a 
 seal should attach it to such an important paper as a commission go- 
 ing to a foreign State; courtesy, dignity, and authenticity require it, 
 and it is held that when courts have a seal, and it is required to be 
 placed upon a commission, the omission of the seal is a fatal objection 
 to the legality of the commission. See Ford v. Williams, 24 N. Y. 349 ; 
 Tracy v. Buy dam, 30 Barb. 120; Whitney v. Wyncoop, 4 Abb. Pr. 370. 
 
 § 206. Commission on consent; deposition upon oral ques- 
 tions. — If both parties expressly consent, a commission may 
 issue without written interrogatories, and the deposition 
 may be taken upon oral questions. 
 
 Note to section 206. 
 
 This section is taken from section 2981 of the Code of Civil Procedure, 
 relating to justices' courts, which was made applicable to this court 
 by section 1368 of the Consolidation Act (Laws 1882, chap. 410). 
 
 § 207. When and how commission granted. — The commis- 
 sion may be granted by the court without notice, upon the 
 application of the plaintiff, made at the return of the sum- 
 mons, or upon the application of either party, made at the 
 time of the joinder of issue. It may also be granted at any
 
 §208. Commission ; Depositions. 297 
 
 time after the joinder of issue, upon the application of either 
 party, accompanied with proof, by affidavit, that three days 
 written notice of the application has been served upon the 
 adverse party, either personally or by service upon the at- 
 torney, who appeared for him before the court. 
 
 Notes to section 207. 
 
 This section is taken from section 2982 of the Code of Civil Procedure, 
 relating to justices' courts, which was made applicable to this court 
 by section 1368 of the Consolidation Act (Laws 1882, chap. 410). 
 
 Should be applied for promptly. — Its granting is almost a matter 
 of course, but it should be applied for without unreasonable delay, after 
 issue joined. Rathbun v. Ingersoll, 34 N. Y. Super. 211; Brokaw v. 
 Bridgman, 6 How. 114. 
 
 Affidavit may be made by the attorney, or any third person cognizant 
 of the facts. Beall v. Day, 7 Wend. 513; Brackett v. Dudley, 1 Cow. 
 210. 
 
 Discretionary. — The court, upon reasonable grounds being shown 
 therefor, may order the party to disclose by affidavit what he expects 
 to prove, and may then grant the order, either absolutely or condi- 
 tionally, unless the adverse party will admit the facts sought to be 
 proved; and he must admit the facts, not that the witness will testify 
 to such facts. Beall v. Day, 7 Wend. 514. 
 
 The power to issue a commission is discretionary, and the justice 
 may properly refuse to issue one when no possible benefit could accrue 
 to the party applying for it; as for example, where the party apply- 
 ing declines to ask for an adjournment until the examination can be 
 had, and a return thereto made. Dryer v. Sexsmith, 40 Hun, 242, 10 
 Civ. Proc. Rep. 29, 23 Week. Dig. 498. 
 
 Interpleader. — Where one of the defendants denied plaintiff's right 
 to interplead, held, that a commission to take testimony out of the State 
 might be issued, but the testimony must be confined to the questions 
 arising on the right to interplead, and not upon the merits of the claim. 
 Kemp v. Dickinson, 22 Hun, 593. 
 
 Security for costs as a condition. — The court may require security 
 for costs in this court, under section 889 of the Code, as a condition 
 of allowing plaintiff a commission to take testimony abroad; and such 
 a condition is reasonable where plaintiffs have delayed their application 
 without apparent cause, and their recovery is doubtful. Haines v. Judd, 
 16 Daly, 110. 
 
 § 208. Adjournment where commission granted Where a 
 
 commission is granted, the party upon whose application it 
 is issued, is entitled to such an adjournment of the trial as
 
 298 Commission ; Depositions. § 209. 
 
 may be necessary to procure the commission to be executed 
 and returned. Subject, however, to the provisions of sec- 
 tions one hundred and ninety-three and one hundred and 
 ninety-four of this act. 
 
 Notes to section 308. 
 
 This section is taken from section 2983 of the Code of Civil Proce- 
 dure, relating to justices' courts, which was made applicable to this 
 court by section 1368, Consolidation Act (Laws 1882, chap. 410). 
 
 Sections 193 and 194 relate to "Adjournments." 
 
 Adjournment to plaintiff. — Where the application for commission 
 is made by the defendant, or if no commission is issued, the justice has 
 no right to grant plaintiff an adjournment; in so doing the adjournment 
 is irregular, and the case will be out of court as between the parties. 
 Bedford v. Snow, 12 N. Y. St. Rep. 323, 46 Hun, 370. 
 
 No adjournment can be had on the application of the plaintiff, except 
 at the first return of the summons, or when a commission is issued upon 
 his application. Bedford v. Snow, 46 Hun, 370; Crisp v. Rice, 83 Hun, 
 466. 
 
 Witness in the city. — Where during the trial, after the completion 
 of the reading of a deposition, it appeared the witness was then in the 
 city, and there was no evidence the party who read his deposition knew 
 it, he was not obliged to consent to an adjournment so that the witness 
 might be subpoenaed. Denny v. Horton, 3 Civ. Proc. Rep. 255. 
 
 § 209. How executed and returned. — The person, to whom 
 a commission is directed, or before whom a deposition is 
 taken, unless otherwise expressly directed in the commission, 
 or in the order for taking the depositions, must execute the 
 commission, or the order as follows : 
 
 1. He must publicly administer, to each witness examined, 
 an oath or affirmation to testify the truth, the whole truth, 
 and nothing- but the truth, as to the matters respecting 
 which the witness is examined. 
 
 2. He must reduce the examination of each witness to 
 writing, or cause it to be reduced to writing, by a disinter- 
 ested person. After it has been carefully read, to or by the 
 witness, it must be subscribed by the witness. 
 
 3. If an exhibit is produced and proved, the exhibit, or, 
 if the witness, or other person having it in his custody, does 
 not surrender it, a copy thereof, must be annexed to the
 
 § 209. Commission ; Depositions. 299 
 
 deposition to which it relates, subscribed by the witness 
 proving it, and numbered or otherwise identified, in writing 
 thereupon, by the commissioner or other person taking the 
 deposition, who must subscribe his name thereto. 
 
 4. The commissioner, or person taking the deposition, 
 must subscribe his name to each half sheet of the deposition, 
 and he must annex all the depositions and exhibits to the 
 commission, or to a certified copy of the order for taking 
 the deposition, with the certificate specified in the next sec- 
 tion; and he must close them up under his seal, and address 
 the packet to the clerk of the court, at his official residence. 
 
 5. If there is a direction, on the commission, or in the 
 order to return the same through the post office, he must 
 immediately deposit the packet, so addressed, in the post 
 office, and pay the postage thereon. 
 
 6. If there is a direction on the commission, or in the 
 order, to return the same by an agent of the party, at whose 
 instance it was issued or granted, the packet so addressed 
 must be delivered to the agent. 
 
 7. Where a commission is directed to two or more persons, 
 one or more of them may execute it, as prescribed in this and 
 the next section. 
 
 A copy of this and of the next section must be annexed 
 to each commission, or order to take depositions, authorized 
 by this article. 
 
 Notes to section 209. 
 
 This section is the same as section 901 of the Code of Civil Procedure. 
 Section 1368 of the Consolidation Act (Lpavs 1882, chap. 410) made sec- 
 tion 2984, Code Civil Procedure, relating to justices' courts, applicable 
 to this court, and the latter section made section 901, Code of Civil Pro- 
 cedure, applicable. 
 
 Counsel at execution. — On the execution of a commission, the parties 
 have a right to appear by counsel. Union Bank of Sandusky v. Torrey, 
 2 Abb. Pr. 269. 
 
 Delay in return. — Where sufficient time bas elapsed, prima facie, to 
 have the return, the stay will be vacated on motion, and the party who 
 issued the commission must establish further grounds for a stay. Voss 
 v. Fielden, 2 Sandf. 690. 
 
 Papers annexed. — If any writings are to be proved, they, or copies 
 thereof, should be annexed for the purpose of reference, description, and 
 identification, producing the original on the examination of the wit-
 
 oUO Commission; Depositions. §§210,211. 
 
 nesses. Commercial Hunk of Penn. v. Union Hunk uj New lark, 11 
 N. Y. 203. 
 
 The court has no power to order the original instrument to be annexed. 
 Butler v. Lee, 32 Barb. 75; s. c, 19 How. 384. 
 
 § 210. Certificate of execution. — The commissioner or other 
 person, before whom one or more depositions are taken, 
 must subscribe, and annex to each deposition, a certificate, 
 substantially in the following form, the blanks being prop- 
 erly filled up: 
 
 State (or territory) of ^ 
 
 County (or parish) of i 
 
 I, do certify that the wit- 
 ness, personally appeared before me on the day of 
 
 , at o'clock in the noon, at the 
 
 , in the state (or territory) of , and after 
 
 being sworn (or affirmed, as the case may be), to testify 
 the truth, the whole truth, and nothing but the truth, did 
 depose to the matters contained in the foregoing deposition, 
 and did, in my presence, subscribe the same, and indorse the 
 exhibits annexed thereto. And I further certify that I 
 have subscribed my name to each half sheet thereof, and to 
 each exhibit. 
 
 And I further certify that appeared in be- 
 half of the and that appeared 
 
 in behalf of the 
 
 Note to section 210. 
 
 This section is the same as section 902 of the Code of Civil Procedure. 
 Section 1368 of the Consolidation Act (Laws 1882, chap. 410) made sec- 
 tion 2986, Code of Civil Procedure, relating to justices' courts, applicable 
 to this court, and the latter section made section 902, Code of Civil 
 Procedure, applicable. 
 
 §211. Certificate, a sufficient return. — The certificate 
 specified in the last section, is a sufficient return to a com- 
 mission. 
 
 Note to section 211. 
 
 This section is the same as section 903 of the Code of Civil Procedure. 
 Section 1368 of the Consolidation Act (Laws 1882, chap. 410) made
 
 §212. Commission; Depositions. 301 
 
 section 2980, Code of Civil Procedure, relating to justices' courts, ap- 
 plicable to this court, and the latter section made section 903, Code 
 of Civil Procedure, applicable. 
 
 § 212. When deposition may be suppressed. — Where it ap- 
 pears, by affidavit that a deposition lias been improperly or 
 irregularly Taken or returned; or that the personal attend- 
 ance of the witness, upon the trial, could have been procured, 
 with due diligence, by a subpoena, or that the attorney for 
 either party has practiced any fraud, or unfair or overreach- 
 ing conduct, to the prejudice of the adverse party, in the 
 course of the proceedings; an order for the suppression of 
 the deposition, may be made by the court, upon the appli- 
 cation of the party aggrieved, upon notice to the adverse 
 party. 
 
 Notes to section 212. 
 
 This section is entirely new to this court, and is the same as section 
 910 of the Code of Civil Procedure. Heretofore there was no power 
 in this court to suppress a deposition. Section 910 was not included in 
 section 1368 of the Consolidation Act (Laws 1882, chap. 410), or in- 
 cluded in any of the sections of the Code of Civil Procedure therein 
 specified. 
 
 In Denny v. Horton, 11 Daly, 359, this was recognized, the court how- 
 ever saying the District Courts had the incidental power, by implication, 
 given by the right to issue the commission. 
 
 Amending return. — If the commission be defectively executed the 
 court has power to order it to be returned to have the defect amended, 
 and it is not necessary to issue a new commission. Sheldon v. Wood, 2 
 
 Bosw. 2ti7. 
 
 Directions from plaintiff to witness. — Where it appears that the 
 testimony taken was given under written memoranda, in directions sent 
 to him in behalf of a plaintiff before his deposition was taken, the 
 judge has the power to suppress it. Xordlinger v. Anderson, 24 N. Y. 
 St. Rep. 240. 
 
 Mistake in name of the witness. — In the affidavit the name being 
 George C. Fox and in the commission Frank C. Fox is an irregularity. 
 See Denny v. Horton, 11 Daly, 35S. 
 
 Letters for identification. — Upon the taking of a deposition, out of 
 the State, letters which are merely identified before the commissioner 
 are not to be considered as having been "produced and proved" within 
 the meaning of section 901 of the Code of Civil Procedure, or of the 
 Revised Statutes, as exhibits, and need not be annexed to the commis- 
 sion. Such identification is not enough to admit them at the trial, with-
 
 302 Commission; Depositions. §213. 
 
 out evidence of genuineness by witnesses, who can be cross-examined. 
 That such letters have not been annexed to the deposition is there- 
 fore not a sufficient ground for .suppressing the commission. Kelly v. 
 Weber, 9 Abb. X. ( . 62. 
 
 There are notes and authorities at the end of this case. 
 
 Objection to evidence, taken under a commission, that the commis- 
 sion was not executed by the person intended, should be raised by motion 
 to suppress where the party has an opportunity so to do; if not so 
 raised it will be deemed to have been waived; it cannot be raised, upon 
 the trial, where the party had knowledge of the fact a sufficient time 
 before the trial to enable him to make the motion. Newton v. Porter 
 et at, 69 N. Y. 133. 
 
 Order suppressing the deposition must be obtained or it can be read 
 in evidence. Hedges v. Williams, 33 Hun, 54G ; Denny v. Horton, 1 1 
 Daly, 358. 
 
 Second commission. — The court will sometimes allow a second com- 
 mission to issue. Fisher v. Dale, 17 Johns. 342; Washington Bank v. 
 Palmer, 2 Sandf. 686, 690. 
 
 § 213. Deposition, et cetera, evidence. — A deposition, taken 
 and returned as prescribed in this article, may, unless it is 
 suppressed as prescribed in the last section, be read in evi- 
 dence by either party. ' It has the same effect, and no other, 
 as the oral testimony of the witness would have; and an ob- 
 jection to the competency or credibility of the witness, or to 
 the relevancy, or substantial competency, of a question put 
 to him, or if an answer given by him, may be made, as if 
 the witness was then personally examined, and without be- 
 ing noted upon the deposition. 
 
 Notes to section 213. 
 
 This section is the same as section 911 of the Code of Civil Procedure. 
 Section 1368 of the Consolidation Act (Laws 1882, chap. 410) made 
 section 2986, Code of Civil Procedure, relating to justices' courts, ap- 
 plicable to this court, and the latter section made section 911, Code of 
 Civil Procedure, applicable. 
 
 Competency of witness is determined by the law in force at the 
 trial. Fielden v. Lahens, 6 Abb. Pr. N. S. 341. 
 
 General interrogatory. — Neither the general interrogatory nor any 
 pertinent answer to it is immaterial. McCarthy v. Edwards, 24 How. 
 236; Percival v. Hickey, 18 Johns. 257. 
 
 Impeaching witness. — Rule that witness cannot be impeached by 
 proof of other statements out of court applies to witness on commission. 
 Van Ness v. Bush, 14 Abb. 33; s. c, 22 How. 481.
 
 §214. • Commission; Depositions. 303 
 
 Irresponsive answer. — An answer not responsive to an interrogatory 
 may be objected to by either party on the trial, and will thereupon be 
 excluded. Lansing v. Coley, 13 Abb. Pr. 272. 
 
 But testimony otherwise competent will not be rejected at the trial 
 because not responsive. Fassin v. Hubbard, 55 N. Y. 465. 
 
 Knowledge of witness. — Where a witness testifies positively to facts 
 which may be within his personal knowledge, and the opposite party 
 makes no inquiries to ascertain whether they were so or not, the court 
 must assume that the witness speaks from such knowledge. This 
 rule applies as well where the testimony of the witness is taken upon 
 commission as to an oral examination. Fassin et al. v. Hubbard, 55 
 N. Y. 466. 
 
 Leading questions. — The objection to an interrogatory annexed to x 
 commission, on the ground of its being leading, may be made when the 
 answer of the witness is proposed to be read in evidence. Fleming v. 
 Hollenback, 7 Barb. 271. 
 
 Materiality. — The issuance of the commission determines the ma- 
 teriality of the witness to be subpoenaed. Wintenbrock v. Mabius, 57 
 Hun, 146; s. c, 10 N. Y. Supp. 733. 
 
 Objections to testimony. — Incompetent matter contained in an an- 
 swer to an interrogatory annexed to a commission executed without 
 the State may be objected to for the first time on the trial, although 
 the objection was not taken upon the settlement of the interrogatories, or 
 by motion to suppress the commission. Wanamaker v. Megraw, 168 
 N". Y. 125, 61 N. E. 112, revg. 48 App. Div. 54. 
 
 Objections must be specific. — Objections taken at the trial must be 
 specific. Valton v. Nat. F. L. Assn., 20 N. Y. 32. 
 
 Order for suppression of depositions; when not obtained. — Section 
 910 of the Code has not changed the former practice when no order for 
 the suppression of the depositions has been obtained, and that allowed 
 them to be used as evidence, even if the personal attendance of the 
 witness could be secured. Hedges v. Williams, 33 Hun, 546. 
 
 § 214. Power of commissioners. — Where the commission is 
 executed within the state, the commissioner, or if there are 
 two or more, a majority of them, have the same power to 
 issue a subpoena, to swear a witness, and to compel his at- 
 tendance, that a justice of the peace has, in an action pend- 
 ing before him. 
 
 Note to section 214. 
 
 This section is the same as section 2987 of the Code of Civil Procedure, 
 relating to justices' courts, which was made applicable by section 1368 
 of the Consolidation Act (Laws 1882, chap. 410).
 
 304 Commission; Depositions. §§215,216. 
 
 §215. Receipt of clerk; return of commission by. — The 
 clerk of the court in the district in which the action is pend- 
 ing, must on receiving the package, containing the commis- 
 sion, transmitted to him by mail or otherwise, open and file 
 it, indorsing thereupon the date of his so doing-. It must 
 remain on tile with him, until the trial; but either party is 
 entitled to inspect it on file. 
 
 Note to section 215. 
 
 This section is the same as section 2987 of the Code of Civil Pro- 
 cedure, relating to justices' courts, which was made applicable by sec- 
 tion 1368 of the Consolidation Act (Laws 1882, chap. 410). 
 
 § 216. Deposition to take testimony conditionally. — Either 
 party to an action pending in the municipal court may ap- 
 ply in the district in which the action is pending, for an order 
 to have the testimony of any witness who is about to de- 
 part from the city of Xew York, and will probably continue 
 absent, when the testimony is required, or is so sick or infirm 
 as to afford reasonable ground to believe that he will not 
 be able to attend the trial; or that any other special circum- 
 stances exist which render it proper that he be examined as 
 prescribed in this article, taken conditionally to be used on 
 the trial of such action, subject to the provisions of this 
 article. 
 
 Notes to section 216. 
 
 This section is taken from section 1369 of the Consolidation Act 
 (Laws 1882, chap. 410), and from section 871 of the Code of Civil 
 Procedure, which was made applicable to this court by said section 
 1369 of the Consolidation Act. 
 
 Section 1369 makes sections 871 to 883, Code of Civil Procedure, ap- 
 plicable to this court, and all of them have been embodied into this 
 act, except section 876, as follows: Section 216 of this act is taken 
 from section 871, Code; section 217 from 872; section 218 from 879; 
 section 219 from 873; section 220 from 874: section 221 from S7-"> : 
 section 222 is new; section 223 from 877; section 224 from 880; section 
 225 from 881 and 882, and 226 from 883. 
 
 Framing complaint. — A witness cannot be examined under sections 
 871 to 876 of the Code of Civil Procedure, for the purpose of enabling 
 the plaintiff to frame a complaint in an action which is not yet com- 
 menced. Matter of Anthony, 42 App. Div. 66.
 
 §217. Commission ; Depositions. 305 
 
 §217. Affidavit on application; requirements of. — The 
 party desiring to take a deposition, as prescribed in the last 
 section, must present to the court in the district in which 
 the action is pending, an affidavit showing : 
 
 1. The title and nature of the action. The name and 
 residence of the person to be examined. That the testi- 
 mony of such person is material and necessary for the party 
 making such application or for the prosecution or defense 
 of such action. 
 
 2. That the person to be examined is about to depart 
 from the city of New York, or that he is so sick or infirm as 
 to afford reasonable ground to believe that he will not be 
 able to attend the trial, or that any other special circum- 
 stances exist which render it proper that he should be ex- 
 amined, as prescribed in this chapter; but this subdivision 
 does not apply to a case where the person to be examined is 
 a party to the action, except in the case of sickness or in- 
 firmity. 
 
 3. If the party sought to be examined is a corporation, the 
 affidavit shall state the name of the officers or directors 
 thereof, or any of them whose testimony is necessary and 
 material, or the books and papers as to the contents of which 
 an examination or inspection is desired, and the order to be 
 made in respect thereto, shall direct the examination of 
 such persons and the production of such books and papers. 
 
 Notes to section 217. 
 
 This section is constructed from section 872 of the Code of Civil 
 Procedure, which was made applicable to this court by section 1369 
 of the Consolidation Act (Laws 1882, chap. 410). 
 
 Affidavit must conform strictly to section 872 in all matters of sub- 
 stance, although a trifling change of expression will not vitiate. Beech 
 v. Mayor, 14 Hun, 79; s. c, 4 Abb. N. C. 236; Ludewig v. Pariser, 4 
 Abb. N. C. 246; Matter of Bryan, 3 Abb. N". C. 289; Dunham V. Mer- 
 chants' M. Ins. Co., 6 Abb. N. C. 70; Greer v. Allen, 15 Hun, 432. See 
 also rule 89, Supreme Court. 
 
 It may be made by the parties, agent or attorney, if good reason be 
 shown. Corbitt v. De Comeau, 54 How. 506 ; Borman v. Pierce, 56 How. 
 251; Hynes v. McDermott, 55 How. 259; Hale v. Roger, 22 Hun, 19; 
 Corbitt v. De Comeau, 4 Abb. N. C. 252; Lane v. Williams, 22 Week. 
 Dig. 16. 
 
 20
 
 306 Commission ; Depositions. §§ 218, 219. 
 
 The affidavit should show the witness is then sick, and that what is 
 expected to be proven is derived from knowledge, fact, or circumstance, 
 showing a reasonable ground for the expectation, with reference to the 
 testimony to be given. See Johnson v. ~New Home 8. M. Co., 62 App. 
 Div. 157, 70 N. Y. Supp. 875. See also F. L. d T. Co. v. Siefke, 144 
 N. Y. 355. 
 
 § 218. Deposition by consent. — The parties to an action 
 may stipulate in writing that an order specified in section 
 two hundred and sixteen of this act may be granted, in which 
 case an affidavit, as required by the preceding sections shall 
 not be necessary. But this section does not apply to a case 
 where the person to be examined is confined in a prison or 
 jail within the state. 
 
 Notes to section 218. 
 
 This section is taken from section 879 of the Code of Civil Procedure, 
 which was made applicable by section 1369 of the Consolidation Act 
 (Laws 1882, chap. 410). 
 
 As to taking deposition by agreement, see Smith v. Hervis, 59 Hun, 
 552, 36 N. Y. St. Rep. 917. 
 
 § 219. Order for examination. — The court to whom an affi- 
 davit is presented, as provided in section two hundred and 
 seventeen of this act, may, if the opposing party or his rep- 
 resentative is not present, require that a reasonable notice 
 of the application be given, or may act on the application 
 at the time of such presentation, and must grant an order 
 for the taking of the deposition, if satisfied of the truth of 
 the matter stated in the affidavit, and may in his discretion 
 designate and limit the particular matters on which the ex- 
 amination is to be conducted. The order may require that 
 the examination be conducted before the court, at the time 
 fixed, or may permit such examination to be conducted at 
 the place where the person to be examined is at the time 
 fixed for said examination. Where the deposition is not 
 taken in court, the order may permit the examination of the 
 person making the deposition to proceed after having been 
 sworn before an officer authorized to take and administer 
 oaths.
 
 §§220,221. Commission ; Depositions. 307 
 
 Notes to section 219. 
 
 This section is taken from section 873 of the Code of Civil Procedure, 
 which was made applicable to this court, by section 1369 of the Con- 
 solidation Act (Laws 1882, chap. 410). 
 
 Order is a matter of right, but in a proper case may be vacated by the 
 court. For form of sufficient order see Webster v. Stockwell, 3 Abb. 
 N. C. 115. 
 
 Vacating order. — See Preston v. Hencker, 9 Abb. N. C. 68 ; Werthim 
 v. Page, 10 Week. Dig. 26; First Nat. Bank v. Lindenmeyer, 29 N. Y. 
 St. Rep. 300; Koehler v. Rewards, 29 N. Y. St. Rep. 384, 8 N". Y. Supp. 
 504; Cross v. National F. Ins. Co., 17 Civ. Proc. Rep. 199, 6 N. Y. Supp. 
 84; Golin v. Town of Mooers, 29 N. Y. St. Rep. 213. 
 
 § 220. Punishment for disobeying order; witness fees. — 
 Witnesses fees, as provided in this act, for attendance upon 
 a trial, must be paid or tendered when the order is served 
 upon the party or other person required to attend. If the 
 party or person so served fails to obey the order his attend- 
 ance may be compelled, and he may be punished in like 
 manner, and the proceedings thereon are the same, as if he 
 failed to obey a subpoena, issued from the municipal court. 
 
 Notes to section 220. 
 
 This section is taken from section 874 of the Code of Civil Procedure, 
 which was made applicable to this court by section 1369 of the Con- 
 solidation Act (Laws 1882, chap. 410). 
 
 Compelling the attendance and testimony of a witness, and punish- 
 ment. — See §§ 198 and 200 and notes. 
 
 Witness fees are twenty-five cents for each day's attendance, and 
 if the witness resides more than three miles from the place of attend- 
 ance to eight cents for each mile going to the place of attendance. See 
 §§ 197 and 352. 
 
 § 221. Service of order.— A copy of the order and of the 
 affidavit upon which it was granted must be served at least 
 two days before the time fixed for the examination, upon 
 the attorney for each party to the action, in like manner 
 as a paper in the action; or if a party has not appeared in 
 the action they must be served upon him as directed by the 
 order.
 
 308 Commission; Depositions. §§222,223. 
 
 Notes to section 221. 
 
 This section is part of section 875 of the Code of Civil Procedure, 
 which was made applicable to this court by section 13G9 of the Consoli- 
 dation Act (Laws 1882, chap. 410). 
 
 Service. — Where a party has appeared, service upon his attorney is 
 sufficient, but he must be served personally, either with the order, or 
 a subpoena, and witness fees must be paid, or tendered, before he can 
 be punished for contempt in not attending. Tebo v. Baker, 16 Hun, 
 182; Freiburg v. Branigan, 3 Abb. N. C. 121 ; Wood v. Keil, 3 Abb. N. C. 
 122; Pake v. Proal, 2 Abb. N. C. 418; Webster v. Stockwell, 3 Abb. N. C. 
 115; Thompson v. Sickles, 3 Abb. N. C. 121, note; Dunham v. Mer- 
 chants' M. Ins. Co., 6 Abb. N. C. 70; Mayer v. Knall, 56 How. 214; 
 Riddle v. Crawl, 5 Week. Dig. 277; Tebo v. Baker, 77 N. Y. 33; Dudley 
 v. N. Y. Press Club, 53 Hun, 347; Cowen v. Ferguson, 7 N. Y. St. Rep. 
 403, 18 Abb. N. C. 241. 
 
 § 222. Adjournment of examination. — The court may upon 
 good cause shown adjourn the time for taking said exam- 
 ination within the limitations and provisions of this act 
 applying to adjournments. 
 
 Notes to section 222. 
 
 The commissioners appointed to revise and codify the laws relating 
 to this court, by chapter 218, Laws 1901, in their report to the Legisla- 
 ture, say : " The foregoing is a new section, but its purpose is clear. 
 Nothing is said in this section about adjournments by consent, for the 
 reason that such a privilege might be abused." 
 
 " Good cause shown." — This section does not prevent an adjourn- 
 ment by consent when so stipulated by the parties or their attorneys; 
 that would be "good cause shown" for the justice to agree to the ad- 
 journment until there is abuse thereof, when there would be no longer 
 " good cause shown." See Keating v. Serrell, 5 Daly, 278 ; Barnes 
 v. Badger, 41 Barb. 98; People ex rel. Struller v. McKean, 27 Misc. 
 Rep. 657; Mayor v. Friedman, 44 App. Div. 518; Lett v. Stewart, 62 
 X. Y. Supp. 1114. 
 
 § 223. Party confined in prison. — Where the party or 
 other person to be examined is confined in a prison or jail 
 within the state, under sentence for a misdemeanor or fel- 
 ony, that fact must be stated in the affidavit, and his depo- 
 sition may be taken as prescribed in the foregoing sections 
 as if he was not so confined, except that in such a case the 
 granting or refusing the order is always in the discretion
 
 §§ 224, 225. Commission ; Depositions. 301) 
 
 of the court. The order must require the production of 
 the prisoner by the person in charge of the prison or jail, 
 at the prison or jail, but it may prescribe such regulations 
 and restrictions with respect thereto as the court deems 
 proper. 
 
 Note to section 223. 
 
 This section is substantially the same as section 877 of the Code of 
 Civil Procedure, which was made applicable to this court by section 1369 
 of the Consolidation Act (Laws 1882, chap. 410). 
 
 § 224. Rules for examination; manner of taking and return- 
 ing deposition ; refusal of person examined to answer. — The 
 deposition shall be in the form of question and answer, and 
 when completed must be carefully read to and subscribed 
 by the person examined; and within three days thereafter, 
 unless sooner required by the order, must be filed in the 
 office of the clerk of the district in which the action is pend- 
 ing, together with the stipulation or the affidavit on which 
 the order was granted; and proof of the service of the order 
 and of the affidavit. If upon an examination, the person 
 examined refuses to answer, that fact must be reported to 
 the court, which must determine whether the question was 
 relevant and the witness bound to answer. 
 
 Notes to section 224. 
 
 This section is constructed from section 880 of the Code of Civil Pro- 
 cedure, which was made applicable to this court by section 1369 of the 
 Consolidation Act (Laws 1882, chap. 410). 
 
 Objection; when to be taken. — Where the testimony of a witness 
 is taken de bene esse, an objection to the form of the question asked 
 him should be taken when the deposition is made. Any formal objection 
 not taken before the officer taking- the deposition will be deemed to have 
 been waived. Hcbbard v. Haughian, 70 N. Y. 54. 
 
 §225. Deposition may be read in evidence; when. — The 
 deposition may be read in evidence, by either party at the 
 trial of the action, if it be satisfactorily proved that the 
 witness is dead or is unable to personally attend by reason 
 of his insanity, sickness or other infirmity, or that he is con- 
 fined in a prison or jail, or that he has been and is absent
 
 310 Commission: Depositions. § 226. 
 
 from the city of New York, so that his attendance could 
 not, with reasonable diligence be compelled by subpoena. 
 
 Notes to section 225. 
 
 This section is constructed from sections 881 and 882 of the Code 
 of Civil Procedure, which were made applicable to this court by section 
 1369 of the Consolidation Act (Laws 1882, chap. 410). 
 
 Objections. — Objections of form must be taken at the time of taking 
 the deposition, or else they are waived. This was the rule under the 
 former statute, and no doubt is the same now. Hibbard v. Haughian, 
 70 N. Y. 54. 
 
 Oral examination may be had of the witness, and also his deposi- 
 tion read. Misland v. Boynton, 14 Hun, 625. 
 
 Waiver of irregularities. — See Mayer v. Ehrlieh, 33 Hun, 2, 19 
 Week. Dig. 376; Rushmore v. Hall, 12 Abb. 420. 
 
 Correction of deposition. — The deposition may be returned to the 
 commissioners for ratification. Wells v. Hub Pub. Co., 12 Week. Dig. 
 425. 
 
 § 226. Effect of deposition. — The deposition, so read in 
 evidence has the same effect, and no other, as the oral testi- 
 mony of the witness" would have; and an objection to the 
 competency or credibility of the witness, or to the relevancy 
 or substantial competency of a question put to him, or of an 
 answer given by him, may be made as if the witness was 
 then personally examined and without being noted upon 
 the deposition. 
 
 Note to section 226. 
 
 This section is the same as section 883 of the Code of Civil Pro- 
 cedure, which was made applicable to this court by section 1369 of the 
 Consolidation Act (Laws 1882, chap. 410). 
 
 Note. — There are no sections from 226 to 230.
 
 §230. Trial; Trial Jurors. 311 
 
 TITLE VI. 
 
 Trial; Trial Jurors. 
 
 Section 230. Issue of fact and law; judgment within what time to be 
 rendered. 
 
 231. Trial by jury; drawing the jury. 
 
 232. Court may direct trial by jury; when. 
 
 233. Trial jurors; list of, to be furnished clerk of each district. 
 
 234. Jury of twelve; when. 
 
 235. How jury summoned; notice. 
 
 236. Talesmen. 
 
 237. Ballots of jurors summoned but not drawn. 
 
 238. Adjournments after return of jury. 
 
 239. Verdict; requisites. 
 
 240. Swearing the jury. 
 
 241. Submission of a controversy upon facts admitted. 
 
 242. Papers to be filed. 
 
 243. Subsequent proceedings regulated. 
 
 § 230. Issue of fact and law; judgment within what time to 
 be rendered — Upon the issue of fact joined, if a jury trial 
 be not demanded, as required by this act, the court must 
 hear the evidence, and decide all questions of fact and law, 
 and render judgment accordingly within fourteen days from 
 the time the same is submitted for that purpose, except 
 when the defendant is under arrest, and has not given secu- 
 rity for his appearance; in such case the court shall render 
 judgment immediately after the close of the trial, and ex- 
 cept where further time is given by the consent of parties 
 or their attorneys. All issues of law shall be heard and 
 decided by the court, without a jury. 
 
 Notes to section 230. 
 
 This section is taken from section 1384 of the Consolidation Act 
 (Laws 1882, chap. 410). 
 
 Since the year 1857 the "justice" had eight days to decide. Laws 
 1857, chap. 344, § 47. This section extends the time to fourteen days, 
 which, in these days of speed, seems like retrogration. 
 
 As to "Judgment by default," see § 147. 
 
 As to " Offer to allow judgment," see § 148. 
 
 As to "Judgments," generally, see tit. VII, art. I, §§ 248 to 256, 
 both inclusive.
 
 312 Tkial; Trial Jikors. § 230. 
 
 After time limited for decision. — Judgment rendered after the time 
 limited by law. or consent of the parties, is void for want of jurisdic- 
 tion, and will be reversed. Lambert v. Solomon, 28 App. Div. 562, 59 
 N.Y. Supp. 076. 
 
 Consent to decide after the time limited by statute. — In the case of 
 Keating v. Serrell, 5 Daly, 278, the court held that parties may, by 
 stipulation, authorize the justice to render judgment after the expi- 
 ration of the time limited by the statute. See also Barnes v. Badger, 
 41 Barb. 98; People ex rel. Struller v. McKean, 27 Misc. Rep. 657; 
 Mayor v. Friedman, 44 App. Div. 518; Litt v. Stewart, 62 N. Y. Supp. 
 1114. 
 
 Failure to decide. — A justice loses jurisdiction unless his derision 
 is rendered within the period prescribed by the statute. Berrian v. 
 Olmstead, 4 E. D. Smith, 279; Sibley v. Howard, 4 Den. 72; Wiseman 
 v. Panama I'. A'. Co., 1 Hilt. 300; Bremer v. Merrill, 1 Daly, 485; s. c, 
 29 How. 259. 
 
 All jurisdiction terminates on the failure of the justice to decide 
 the case within eight (now fourteen) days after it was finally sub- 
 mitted to him for decision, and in that case it abates within the legal 
 meaning of that term as employed in an undertaking given to re- 
 plevy a chattel. Frost v. Kopp, 13 Civ. Proc. Rep. 377, 13 N. Y. St. 
 Rep. 707. 
 
 The justice must not only decide a case within eight (now fourteen) 
 days after its submission, but must also deliver his decision to the 
 clerk to be recorded; otherwise he loses jurisdiction, and plaintiff may 
 commence a new action. Dalton v. Loughlin, 4 Abb. N. C. 187; Ovis 
 v. Curtis, 28 N. Y. Supp. 728. 
 
 Mandamus. — In The People ex rel. O'Neil v. Jerolomon, Justice, 
 etc., Superior Court, Special Term, reported in the New York Law Jour- 
 nal, May 11, 1892, McAdam, J., wrote the following opinion: "A Dis- 
 trict Court justice must render judgment within eight (now fourteen) 
 days after the cause is finally submitted. Cons. Act, 1882, § 1384. In 
 this instance the justice filed the papers, with a written memoran- 
 dum (purporting to dispose of the case), stating, in substance, that 
 the plaintiff was a hard-working man, did not fully understand the 
 purport of the papers which the defendant introduced at the trial, 
 and that, under the circumstances, the justice deemed it proper to let 
 the case go out of court without imposing any further loss on the 
 plaintiff. This may seem equitable, but there is no warrant for such 
 practice. Cicero, in one of his addresses to the jury, pointed out to 
 them certain duties: 'They are to consider their duty not only a 
 power, but a trust; it may be their duty to acquit their enemy and 
 convict their friend; they must consider not what their own inclina- 
 tions would lead them to do, but what the law and their oaths oblige 
 them to do.' Ram on Facts, Townshend's Notes, 298. That the jus-
 
 §230. Trial; Trial Jurors. 313 
 
 tice acted conscientiously and from goodness of heart goes without 
 saying, but he had no such discretion in the premises as that he 
 assumed to exercise. His duty is found in the statute — is mandatory 
 — and can be discharged only by deciding the controversy according 
 to his understanding of the evidence and the law applicable thereto, 
 without sympathy or regard to results (however serious) to either 
 litigant. Where a judicial duty is imposed, nothing must stand in 
 the way of its complete performance. Every case must be decided on 
 its merits and within the time prescribed by law, no matter how un- 
 pleasant the duty, which cannot be evaded. The responsibility and 
 all it implies must be assumed, borne, and discharged. It follows that 
 the relator is entitled to a mandatory writ requiring the justice to 
 put his memorandum in legal form by deciding the issues submitted 
 to him. This court does not direct the manner in which the justice 
 shall dispose of the case — merely that he decide it in legal form in 
 favor of one party or the other, so that the party aggrieved may 
 appeal if he desires to do so. See 56 Hun, 626; s. c, 24 Abb. N. C. 
 477. No costs. The writ must be served on the justice and a copy 
 thereof on the plaintiff, that he may have knowledge of the proceed- 
 ings." 
 
 Retrial. — The court loses jurisdiction of a cause if the issues are 
 not decided within the eight (now fourteen) days specified by statute, 
 or within the time for which a stipulation extending the statutory 
 limit of eight (now fourteen) days provide, and no decision being ren- 
 dered, and no certificate for a jury trial being made, within the time, 
 a trial had thereafter, against objection, is nugatory, and the objec- 
 tion must be sustained. Samura v. Haggerty, 30 Misc. Rep. 745, 62 
 N. Y. Supp. 1084. 
 
 Testimony admissible that decision not communicated to clerk within 
 eight days. — As the rule that a failure of the justice to deliver his 
 decision to the clerk, within eight (now fourteen) days after submis- 
 sion of the cause, is fatal to the jurisdiction of the court over the 
 case, testimony is admissible that the decision of the justice was not 
 communicated to the clerk within the time allowed. Sire v. Merrick, 
 15 Daly, 346. 
 
 Sunday. — If the last day fall on Sunday, judgment must be given on 
 the preceding day. Ready Roofin'g Co. v. Chamberlain, 52 How. 123, 
 6 Daly, 521, 1 City Ct. Rep. 222. 
 
 Where the eighth (now fourteenth) day after the trial fell on Sun- 
 day, and the justice did not render his decision until the day follow- 
 ing, he lost jurisdiction of the case, and the judgment was void. 
 Ready Roofing Co. v., Chamberlain, 6 Daly, 521. 
 
 When sufficiently rendered. — A judgment is sufficiently rendered 
 when an entry is made by the justice in his minutes, or a memorandum 
 of it is made on the papers or copies thereof, if made in five days, al-
 
 314 Trial; Trial Jurors. §231. 
 
 though no entry is made in the docket until afterward. Hisk v. Uff'cl- 
 man et al., 7 Misc. Rep. 133. 
 
 § 231. Trial by jury; drawing the jury. — At any time when 
 an issue of fact is joined, either party may demand a trial 
 by jury, and unless so demanded at the joining of issue, a 
 jury trial is waived. The party demanding a trial by jury 
 shall forthwith pay to the clerk, the sum of four dollars and 
 fifty cents. In default of which payment the court shall 
 proceed as if no demand for trial by jury had been made. 
 When a jury trial is demanded, the trial of the case may 
 be adjourned within the limitations provided in this act, 
 until the time fixed for the return of the jury. The clerk in 
 each action or special proceeding, in which a jury trial is to 
 be had, must publicly draw twelve persons from the undrawn 
 jury box, and deliver the list thereof to a marshal, or to a 
 person deputed by the court for that purpose, with a written 
 or printed notice, directed to each person named in the list, 
 requiring him to attend as directed as a juror, at a time 
 specified therein, out of which number six of the persons 
 attending shall be drawn to try the cause, provided that 
 number appear. 
 
 Notes to section 231. 
 
 This section is taken from section 2990 of the Code of Civil Pro- 
 cedure, relating to justices' courts, and from the first paragraph of 
 section 1372 of the Consolidation Act (Laws 1882, chap. 410). which 
 latter was taken from Laws 1857, chap. 344, § 34. It also includes 
 section 1377, Consolidation Act, which was Laws 1857, chap. 344, § 39. 
 
 As to jury trial in an action upon a bastardy or abandonment 
 bond and upon the bond of a marshal, see notes to § 1. subds. 4 and 5. 
 
 The language at the beginning of this section is remarkable. It 
 reads, " At any time when an issue of fact is joined, either party may 
 demand a trial by jury." "At any time," means the time " when " 
 an issue of fact is joined, and is the only time when the jury trial can 
 be demanded. The reading of the former section 1372 is perfect. It 
 reads, " A jury trial must be demanded at the time of the joining of an 
 issue of fact," etc. 
 
 Demand must be made upon joining issue, with notice to opposite 
 party, before adjournment. Mead v. Darragh, 1 Hilt. 395 ; Shannon v. 
 Kennedy, 1 E. D. Smith, 346. See Rubenstein v. Silberfeld, 24 Misc. 
 Rep. 201, 52 N. Y. Supp. 703.
 
 §231. Trial; Trial Jurors. 315 
 
 Where, in consequence of the absence of the justice, the cause is, 
 upon the return day, adjourned by the clerk, the proper time to de- 
 mand a jury trial is after joining issue upon the adjournment day, 
 and not upon the original return day of the summons. Meceh v. 
 Brown, 4 Abb. Pr. 19; s. c, 1 Hilt. 257. 
 
 On the return day of summons the defendant demanded a jury 
 trial, and on the same day tendered the fees to the clerk, who de- 
 clined to receive them, and directed defendant to pay them within 
 five days before trial. A subsequent tender was refused as being too 
 late. The justice, upon a submission of the question to him, directed 
 the clerk to receive the sum tendered and issue a venire. Held no 
 error; that at most the failure to strictly comply with the statute 
 placed the parties in the same situation as if no demand for a jury 
 trial had been made, and, in such case, the justice has power, under 
 section 1372 of the Consolidation Act. as amended in 1891. in his dis- 
 cretion, to order a jury trial, the only requirement as to payment of 
 fees in that event being that it should be made before rendition of 
 judgment. The Equitable Gas Light Co. v. French. 10 Misc. Rep. 749. 
 
 Employee suing employer. — Although by section 44 an employee 
 suing his employer for a sum less than $50 need pay no fees, yet if 
 he wants a jury trial he must pay $4.50. 
 
 Jury fees. — For tabulated statement of, see notes to § 356. 
 
 Poor person may prosecute without paying any fees to any officer. 
 Code Civ. Proc, § 461, made applicable by section 3347, subdivision 
 3, of said Code, as to demanding a jury trial. See notes to § 45. 
 
 Six jurymen. — The statute authorizing a trial by a jury of six, is 
 not unconstitutional if it also allows the defendant the right to re- 
 move the cause to a court of record, where he could have a trial by a 
 jury of twelve. People ex rel. Metropolitan Board of Health v. Lane, 
 6 Abb. Pr. N. S. 105. 
 
 Twelve jurymen; when. — See § 234. 
 
 Time of deposit. — Where, upon a proper demand and tender of fees 
 for jury trial, the clerk directed the fees to be paid five days before 
 the trial, and then upon a tender of such fees at that time refused the 
 same as being too late, the justice directed the clerk to receive the 
 fees and this was declared to be no error. The Equitable Gas Light 
 Co. v. French. 10 Misc. Rep. 749. 
 
 Waiver. — A jury trial is waived and the right is gone unless de- 
 manded upon joining issue with notice to opposite party, and before 
 adjournment. Shannon v. Kennedy, 1 E. D. Smith, 346; Mead v. Dar- 
 ragh, 1 Hilt. 395. 
 
 A party who has demanded a trial by jury may waive that mode of 
 trial, by consent in open court. Horsford v. Carter, 10 Abb. Pr. 452. 
 
 Failure to pay the jury fees in season for the issuing of the venire is 
 a w T aiver of the right to jury trial. Kilpatrick v. Carr, 3 Abb. Pr. 117.
 
 316 Tkial; Tbial Jubobs. §-32. 
 
 After demanding a jury trial and adjournment of the cause to pro- 
 cure the jury, and on the adjournment day neglecting to appear, the 
 justice can proceed to hear the cause without a jury. Kilpatrick v. 
 Can; 3 Abb. Pr. 117. 
 
 The plaintiff at the time of joining of issue demanded a jury trial, 
 and paid the jury fee; after several adjournments of the cause, the 
 case being called for trial, the plaintiff waived a jury, and against the 
 objections of the defendants, the justice dismissed the jury and heard 
 the cause alone. Held no error. The N. Y. Dyeing & Printing Estab- 
 lishment v. Fox, 6 Daly, 467. 
 
 § 232. Court may direct trial by jury; when When an 
 
 issue of fact has been joined in an action or special pro- 
 ceeding, and a trial by jury has not been demanded, the 
 court may, in its discretion, at any stage of the action or 
 proceeding, direct that a trial thereof be had by jury, and a 
 trial by jury shall thereupon be had in the same manner as 
 though either of the parties had demanded it, and the court 
 shall require the fees for the jurors and for summoning 
 them, to be paid by plaintiff and taxed as part of the costs. 
 If after a trial shall have -been had before the court, without 
 a jury, the judge shall, within fourteen days after the sub- 
 mission of the case or proceeding, certify that the evidence 
 is of such a conflicting nature that he has been unable to 
 determine the issue of fact, and that he deems it proper that 
 the same should be tried by jury, he may, by order set the 
 same down for trial by a jury for a day not more than eight 
 days from the time of the making of the order, and there- 
 upon the action or proceeding shall be continued in court, 
 and tried by jury as hereinbefore provided in the case where 
 a trial by jury is ordered by the court before the trial. 
 
 Notes to section 232. 
 
 This section is taken from the second paragraph of section 1372 
 of the Consolidation Act (Laws 1332, chap. 410), which was taken 
 from Laws 1857, chap. 344, § 47. Tt also includes section 1377, Con- 
 solidation Act, which was Laws 1857, chap. 344, § 34. 
 
 Judge has power to order a jury trial. — The " judge " has power, 
 within eight (now fourteen) days after the conclusion of a trial before 
 him, to direct a trial by jury. Zemier v. Stearns, 14 Misc. Rep. 7. 
 See also Equitable, etc. v. French, 10 Misc. Rep. 749.
 
 §233. Trial; Trial Jurors. 317 
 
 Second trial. — Where a judgment has been reversed and a new trial 
 ordered, the justice has power, on the second trial, to direct that the 
 trial be had by jury. New York Small Stock Co. v. The Third Avenue 
 R. R. Co., 16 Misc. Rep. 64. 
 
 After appeal and new trial ordered, a jury trial may be demanded. 
 Manheim v. Seits, 36 App. Div. 352, 55 N. Y. Supp. 321. 
 
 Stipulation by the parties that the justice may have additional time 
 beyond the time required by law for his decision, after the submission 
 of the case, in which to decide it, — Held to operate, also to extend the 
 time within which to make a certificate that he was unable to decide 
 it, and to order a jury trial. People ex rel. Struller v. McKean, 27 
 Misc. Rep. 659, 59 N. Y. Supp. 633. 
 
 § 233. Trial jurors; list of, to be furnished clerk of each dis- 
 trict. — A list of trial jurors for each district of the munici- 
 pal court of the city of New York, must be selected by the 
 commissioner of jurors or other officer whose duty it is by 
 law to select jurors in each of the counties included within 
 New York city, and must be selected for each of said districts 
 by said officer in whose county the said district is situated, 
 and must consist of two hundred jurors for each district. 
 Each juror so selected shall be exempt from jury duty in 
 every other court. A person shall not be placed upon such a 
 list who does not reside, or have a place where he regularly 
 transacts his business in person, within the district for which 
 he is selected. The said commissioner of jurors or other 
 officer shall on or before the first Monday in September in 
 each and every year, furnish the clerk of the court in each 
 of the districts of said court within the county for which 
 said commissioner or other officer acts, with a list of the 
 names, residence and occupation, of the persons liable to do 
 jury duty, and who are borne upon said list. The clerk of 
 the court who shall receive such jury list, must write on a 
 slip of paper the name of each of the persons so furnished, 
 and place the same in a box, to be called the undrawn jury 
 box. The judge presiding in each district of said court may 
 impose a fine of twenty-five dollars upon each person duly 
 drawn and notified to attend the court as a trial juror, who 
 fails to attend as required by the notice. The clerk of the 
 court .must, within ten days thereafter, transmit to the com-
 
 318 Trial; Trial Juhoes. § 234. 
 
 missioner of jurors or other officer, a certificate showing that 
 the fine has been so imposed, and stating h<»\v the notice to 
 attend was served upon the delinquent, in order that the 
 same proceedings may be had, as in the case of a delinquent 
 juror in a court of record. A clerk who violates this section 
 forfeits one hundred and fifty dollars for each offence. 
 
 Notes to section 233. 
 
 This section is taken from section 1371 of the Consolidation Act 
 (Laws 1882, chap. 410). which latter section was substantially the 
 same as section 1111. Code of Civil Procedure. It also includes section 
 1377, Consolidation Act, which was Laws 1857, chap. 344, § 39. 
 
 For other duties of the clerk, see article I, " Clerks and Officers." 
 §§ 282 to 289. 
 
 False swearing; when perjury. — Any person who swears falsely in 
 an affidavit, or testifies falsely upon an inquiry with regard to trial 
 jurors, is guilty of perjury. Code Civ. Proc. § 1125. 
 
 Qualification, disqualification, and exemption of jurors. — See Code 
 Civ. Proc, title IV. "Trial jurors in New York and Kings counties; 
 mode of selecting them, and procuring their attendance." Sections 1079 
 to 1125, more particularly section 1079, "Qualification of trial jurors." 
 Section 1081, " Persons exempt from service." See also title V, 
 "Trial by Jury." Section 1166, ''Persons drawn, etc., to form the 
 jury,*' which is made applicable to all courts by section 3347, sub- 
 division 14. Section 1166 also contains a provision as to persons who 
 shall be disqualified from sitting as jurors. See also title III, " Trial 
 Jurors, except in New York and Kings, Mode of Selecting Them, and 
 Procuring Their Attendance." §§ 1027 to 1034. 
 
 By section 240 of this act. " the examination and swearing of the 
 jury shall be the same as prevails in courts of record." 
 
 Service in a court not of record — when an excuse. Code Civ. Proc, 
 § 1088. This section is seemingly in conflict with section 233. so that 
 section 20 " governs." See § 20. 
 
 Penalty for physician giving false certificate for the purpose of dis- 
 charging, excusing, or exempting a trial juror. See Code Civ. Proc. 
 § 1120. 
 
 Punishment for bribery of officer, etc., by juror drawn. — Code Civ. 
 Proc, § 1122. 
 
 Punishment for officer accepting bribes. — Code Civ. Proc, § 1123. 
 
 Id.; for concealing offer to take bribe, etc. — Code Civ. Proc, § 1124. 
 
 § 234. Jury of twelve; when. — In an action where the 
 damages, or the value of the chattels as claimed in the com-
 
 §235. Trial; Trial Jurors. 319 
 
 plaint, exceed one hundred dollars, if at the time of joining 
 an issue of fact the defendant demand a trial by a jury of 
 twelve men, the court shall order a jury of twelve to be 
 summoned to try the issues. In such case the clerk shall 
 draw the names of twenty-four persons who shall be sum- 
 moned in the same manner as in other cases required by 
 law, and twelve of such number shall be drawn to try the 
 cause. The jury fee to be deposited in such cases, shall be 
 nine dollars. 
 
 Notes to section 234. 
 
 The commissioners say : " This section is substituted for section 
 1373 of the Consolidation Act" (Laws 1882, chap. 410), without men- 
 tioning that it is also a substitute for section 1369 of the Charter of 
 1897 (chap. 378), as amended by Laws 1901, chapter 466, which has 
 been repealed by this act. In the table showing disposition of laws 
 repealed, it is stated that section 1369 of the Charter has been dis- 
 posed of by sections 4 to 8, inclusive, and subjects stated in that section. 
 
 By the Charter section 1369, in all actions specified in the Charter 
 section 1364, except subdivision 8 (an action in behalf of the People of 
 the State, etc.), and subdivision 10 (an action upon the bond of a 
 marshal), where the damages, or the value of the chattels, exceeds $100, 
 if a jury of twelve men had been demanded, the justice had to order 
 the same, and the proceedings and fees were the same as prescribed in 
 section 1373 of the Consolidation Act. 
 
 Section 1373 of the Consolidation Act was substantially Laws 1869, 
 chapter 410, section 234; also includes section 1377 of the Consolida- 
 tion Act, which was Laws 1857, chapter 344, section 39. 
 
 As to jury trial in an action upon bastardy or abandonment bond 
 and upon the bond of a marshal, see notes to § 1, subds. 4 and 5. 
 
 As to " action to recover a chattel," see § 95. 
 
 Assent to a jury of twelve men. — See Foyer v. N. Y. C. R. R. Co., 
 7 Abb. N. C. 371. 
 
 Constitutional right of jury trial by twelve men in justice's court. 
 — See a decision made in the Oneida County Court in 1868, Baxter 
 v. Putney, 37 How. Pr. 140. 
 
 Six jurymen. — See § 231 and notes. 
 
 Time of deposit for fee for six jurymen. — See § 231 and notes. The 
 time of deposit for the jury fee of twelve jurymen is not expressed in 
 section 234. 
 
 § 235. How jury summoned; notice. — The officer or the 
 person deputed, as provided in section two hundred and six- 
 teen of this act, must thereupon immediately summon each
 
 320 Trial; Trial Jurors. §§236,237. 
 
 person named in the list, by giving him the sum of twenty- 
 five cents and the notice mentioned in the last section but 
 one, personally, or by leaving it at his place of residence or 
 business, with some person of suitable age and discretion, 
 and must return the list to the court, at its opening, on the 
 day for which the jury was drawn, specifying the persons 
 summoned, and the manner in which each was notified. 
 
 Notes to section 235. 
 
 Thi9 section is taken from section 1374 of the Consolidation Act 
 (Laws 1882, chap. 410), which was substantially the same as section 
 35, chapter 344, Laws 1857. It also includes section 1377 of the Con- 
 solidation Act, which was Laws 1857, chapter 344, section 39. 
 
 The reference to section 216 in this section is an error. Section 216 
 provides for " Deposition to take testimony conditionally." The section 
 intended is section 231. 
 
 § 236. Talesmen. — If a sufficient number of competent 
 and indifferent jurors do not attend, the court must direct 
 to be summoned from the vicinity, sufficient to complete the 
 jury, by a marshal or a person deputed for that purpose. 
 
 Note to section 236. 
 
 This section is the same as section 1375 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as section 37, chapter 344, 
 Laws 1857. It also includes section 1377 of the Consolidation Act, 
 which was Laws 1857, chapter 344, section 39. 
 
 § 237. Ballots of jurors summoned but not drawn. — The 
 ballots containing the names of the jurors summoned and 
 not drawn, must be returned by the clerk to the undrawn 
 jury box, to be drawn as in the first instance. The ballots 
 containing the names of the jurors who served, must be 
 placed in a box to be called the drawn jury box, until all the 
 other names have been drawn therefrom, and, as often as 
 that happens, the whole number must be returned to the 
 undrawn jury box, as in the first instance. 
 
 Note to section 237. 
 
 This section is the same as section 1376 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as section 38, chapter 344,
 
 §§238,239. Trial; Trial Juboks. 321 
 
 Laws 1857. It also includes section 1377 of the Consolidation Act, 
 which was Laws 1857, chapter 344, section 39. 
 
 § 238. Adjournments after return of jury. — No adjourn- 
 ments can be granted after the return of the jury unless the 
 party requiring- the same in addition to the other conditions 
 imposed upon him, deposit with the clerk the sum of four 
 dollars and fifty cents or nine dollars as the case may be, but 
 no jury fee or sum for summoning of jurors may be included 
 as part of the costs in the judgment, other than the sum 
 originally paid. 
 
 Notes to section 238. 
 
 This section is substantially section 1378 of the Consolidation Act 
 (Laws 1882, chap. 410), which was Laws 1857, chapter 344, section 40. 
 It also includes section 1377 of the Consolidation Act, which was Laws 
 1857, chapter 344, section 39. 
 
 The end of the section beginning with the words " but no jury fee," 
 etc., is new, and means that only one fee for summoning jurors can be 
 taxed, and that the fee paid for summoning another jury upon an 
 adjournment cannot be taxed. 
 
 §239. Verdict; requisites — Except as otherwise provided 
 in this act, the verdict of the jury must be general for the 
 plaintiff for a specific sum, or for the defendant, or where 
 there is a counterclaim or set-off proved for the defendant 
 in a specified sum, but where there are several plaintiffs or 
 defendants, the verdict may be for or against one or more 
 of them, within the limitations and provisions of this act, 
 and the judgment must be entered thereon immediately 
 after the rendering of the verdict. 
 
 Notes to section 239. 
 
 This section is taken from section 1380 of the Consolidation Act 
 (Laws 1882, chap. 410), which was the same as section 42, chapter 344, 
 Laws 1857. 
 
 ]'>y section 1, subdivisions 12 and 19, this court has power to direct 
 or set aside the verdict of a jury and to grant a new trial, etc. 
 
 Absence of plaintiff. — Nothing less than express assent can warrant 
 taking a verdict in plaintiff's absence. People v. Mayor's Court of 
 Albany, 1 Wend. 36. 
 
 Altering verdict. — The verdict is not unalterable when entered in 
 the clerk's minutes, even where it was brought in sealed, if the jury, 
 
 21
 
 322 Trial ; Trial Jurors. § 240. 
 
 on being polled, dissent. Before they have been dismissed from their 
 relation in the case as jurors, their power remains to alter the verdict 
 so as to conform it to their real and unanimous intent. Warner V. 
 A r . Y. Cent. A*. R. Co., 52 X. Y. 437. 
 
 Delay in rendering judgment upon verdict. — Where the justice under- 
 took to set aside the verdict rendered and refused to enter judgment, 
 but several days afterward entered judgment upon it, — Held no error, 
 since the requirement that judgment be entered immediately is directory 
 merely. Hecht v. Mothner, 4 Misc. Rep. 536; s. c, 54 N. Y. St. Rep. 
 121, 24 N. Y. Supp. 826. 
 
 How judgment is entered. — Merely entering the verdict in the docket, 
 and putting down the items of cost, and adding them up with the 
 verdict, is not rendering a judgment on .such verdict. Judgment must 
 be rendered and entered in some way as a judicial act. Stephens v. 
 Sontee, 51 Barb. 532. 
 
 The clerk has no power to enter judgment upon the verdict of a jury, 
 except by direction of the justice. The court must give the judgment. 
 4 E. D. Smith, 477. 
 
 Joint contract. — In an action on a joint contract the jury may find 
 for one defendant who pleads infancy, and for plaintiffs against the 
 others. Hartness v. Thompson, 5 Johns. 160. 
 
 Jurors dissent. — A jury, when they come to the bar, may dissent 
 from the verdict to which they had previously agreed. No verdict is 
 of force but a public one, given in open court, and till received and 
 recorded it is no verdict. Root v. Sherwood, 6 Johns. 68; Blackley v. 
 Sheldon, 7 Johns. 32. 
 
 Polling the jury. — Either party has an absolute right to have the 
 jury polled on bringing in their verdict, whether it is sealed or oral, 
 unless he has expressly waived it. Laban v. Koplin, 4 N. Y. 547 ; Fox 
 v. Smith, 3 Cow. 23; Jackson v. Hawkes, 2 Wend. 619'. 
 
 Regularity of verdict. — The fact that the jury attempted to commu- 
 nicate the verdict to the party in whose favor it was, after coming into 
 court, and before the verdict was announced, — Held not to be consid- 
 ered as affecting the impartiality, regularity, or purity of the verdict, 
 and it was not sufficient ground for setting aside the verdict. Fash v. 
 Byrnes, 14 Abb. Pr. 12. 
 
 Replevin. — As to verdict or decision in actions in replevin, see § 121, 
 and note § 1726, Code Civ. Proc, thereunder. 
 
 Waiver. — The rendering of a general verdict, and its reception with- 
 out objection by the judge or the parties, is good, notwithstanding 
 failure to find on special questions directed. A party, by so receiving 
 it, waives objection. Moss v. Priest, 1 Robt. 632; s. c, 19 Abb. Pr. 314. 
 
 § 240. Conduct of trial.— On the trial of all causes in 
 the municipal court, the mode of conducting the trial, the
 
 §240. Trial; Trial Jurors. 323 
 
 rules of evidence, the examination and the swearing of the 
 jury, shall be the same as prevail in courts of record. 
 
 Notes to section 240. 
 
 This section is taken from section 1381 of the Consolidation Act 
 (Laws 1882, chap. 410), which was the same as Laws 1857, chapter 344, 
 section 44. It also includes section 1379 of the Consolidation Act, 
 which was Laws 1S57, chapter 344, section 41. 
 
 In the contents of title VI, " Trial ; Trial Jurors," this section is 
 entitled, " Swearing the jury," instead of " Conduct of trial." 
 
 The word " causes " is used instead of " actions " or " special pro- 
 ceedings," as used in the Code of Civil Procedure, and in other parts 
 of this act. 
 
 For definition of the word " causes," see Bouvier's Dictionary, vol. I, 
 p. 427; Wood on Civil Law, p. 301, and Funk & Wagnall's Standard 
 Dictionary of the English language. 
 
 Account must have been ordered to be filed, and party precluded by 
 order from giving testimony for failing to do so, to make the objection 
 available to evidence on the trial. Rosen v. Rosenthal, 22 Misc. Rep. 
 143. See § 165. 
 
 Adjournment of trial. — See §§ 193, 194, 195, and notes. 
 
 Admissions. — No evidence can be received in favor of a party which 
 tends to contradict an admission made by such party in his pleadings. 
 Crosly v. Lang, 6 Bosw. 312. 
 
 When made at or before the submission of a cause it cannot sub- 
 sequently be retracted. Kohler v. Wright, 7 Bosw. 318. 
 
 Testimony given by a party on a former trial, during which he was 
 examined as a witness for the adverse party, and which is directly con- 
 trary to his testimony in a second suit, may be given in evidence as 
 an admission. Pickard v. Collins, 23 Barb. 444. 
 
 A party to an action desiring to avail himself of an admission or an 
 allegation contained in the pleading of his adversary must accept the 
 admission or allegation as an entirety. Shrady v. Shrady, 42 App. 
 Div. 9. 
 
 Admission by member of corporation. Code Civ. Proc, § 839. 
 
 Amendment of pleadings, etc. See § 166, and notes. 
 
 Argument. — Although a justice may, in his discretion, limit the 
 time of a party's argument at the close of the trial, it is error to 
 deprive him of that right altogether. Cornwell v. Dickel, 6 Civ. Proc. 
 Rep. 416. 
 
 Attorneys and counselors not to disclose communications. — Code 
 Civ. Proc, § 834. An attorney or counselor-at-law shall not be allowed 
 to disclose a communication, made by his client to him, or his advice 
 given thereon, in the course of his professional employment.
 
 324 Tkial; Trial Jubobs. § 240. 
 
 By section 836 of the Code of Civil Procedure, certain exceptions are 
 made in this respect. 
 
 Bill of particulars must have been ordered filed, and party precluded 
 by order from giving testimony for failing to do so, to make objection 
 to evidence available on the trial. Rosen v. Rosenthal, 11 Misc. Rep. 
 143. See § 1(55, subds. 1 and 0. 
 
 Case closed. — After the day of the trial is passed, and the cause has 
 been submitted, and the witnesses have departed, this court has no 
 power to open a case for further hearing. Harden v. Woodside, 1 E. 1). 
 Smith, 37; Alburtis v. McCready, 2 E. D. Smith, 39; Lawson v. Jones, 
 12 Week. Dig. 551; Schwartz v. Wechler, 29 Abb. N. C. 332. 
 
 Cause of action, defense, proof, recovery. — Quantum meruit is re- 
 coverable, although complaint also alleges specific contract, Sussdorf 
 v. Schmidt, 55 N. Y. 319. 
 
 Satisfaction of judgment, set up by defendant, may be impeached by 
 plaintiff. Mandeville v. Reynolds, 5 Hun, 338. 
 
 Under allegation of contributory negligence, defendant allowed i» 
 prove contract. Brown v. Elliott, 4 Daly, 329. 
 
 Special contract, performed, provable under general complaint. Hig~ 
 gins v. Neivtown & Flushing R. R. Co., 3 Hun, till. 
 
 Under a general denial in the answer, in an action for conversion, 
 defendant may give evidence explaining his failure to deliver — e. g., 
 that he delivered to a third person, who, by the course of business be- 
 tween the parties, was apparently authorized to receive. Ontario Bank 
 v. N. J. Steamboat Co., 59 N. Y. 510. 
 
 True source of injury, admissible under general denial. fichaus v. 
 Manhattan (las Light Co., 14 Abb. Pr. N. S. 371. 
 
 So of alteration after signature. Boomer v. Koon, 6 Hun, 645. 
 
 So of fact that contract was void against public policy and morals. 
 Russell v. Burton, 66 Barb. .1.39. 
 
 Id.; failure to answer; motion to dismiss. — Failure of defendant to 
 serve a verified answer when required does not preclude him from 
 moving to dismiss the complaint as not stating a cause of action, and 
 -lnh motion is to be treated as a demurrer. Morris v. Hunken, 40 App. 
 Div. 129, 57 N. Y. Supp. 712. 
 
 Certified copies of a paper on file in the office of the clerk shall be 
 ;// ima facie evidence thereof. § 289. See also latter part of § 15. 
 
 Certificate of copies, etc., for form of. — See Code Civ. Proc, § 957. 
 It must he sealed (see Code Civ. Proc, S 858), unless it is in the same 
 court (Code Civ. Proc, § 959). 
 
 Charge of the judge to the jury; additional requests. — -Refusal of a 
 trial justice to receive additional requests to charge, or to have them 
 noted by the stenographer, held to require a reversal. Munster v. 
 Benoliel, 33 Misc. Rep. 586, 67 N. Y. Supp. 1044. 9 X. Y. Annot. Cas. 
 190, revg. 32 Misc. Rep. 630, 60 X. Y. Supp. 493.
 
 § 240. Trial ; Tkial Jurors. 325 
 
 Id.; amount of damages. — A charge in a negligence case, brought in 
 a city court for $2,000, the limit of the court's jurisdiction, that if 
 the jury found any damages, it might be in any amount between one 
 penny and $2,000, sustained. Nash v. bankers R. R. Co., 63 App. Div. 
 315, 71 N. Y. Supp. 594. 
 
 Id.; credibility of witness. — A party who puts a witness on the 
 stand presents him as credible, and he is not in a position to complain 
 of a charge that the jury is not at liberty to disregard his testimony. 
 Grossman v. Lurman, 57 App. Div. 393, 68 N. Y. Supp. 31 1. 
 
 Id.; inference. — It is only where the facts to be found will justify 
 but a single inference, that the court is warranted as matter of law in 
 directing a jury to draw such inference, if they find the testimony true. 
 Kellegher v. Forty-second St., Manhattanville, etc., Ry. Co., 56 App. 
 Div. 322, 67 N. Y. Supp. 767. 
 
 Id.; necessity of objection. — Where a party has taken no exceptions 
 to the charge and made request to charge, he is not in a position to 
 insist upon a proposition which might have been so presented as con- 
 trolling the disposition of the case by the jury. Williams v. First Na- 
 tional Bank of Syracuse, 167 N. Y. 594, 60 N. E. 1122, affg. 45 App. 
 Div. 239. 
 
 Id.; omicsion to charge. — A justice has the right to charge the jury, 
 although it is usual to omit to do so; and his omission or refusal to 
 charge, when requested, is not error. Pettit v. Ide, 12 Abb. Pr. 44. 
 
 Id.; requests to charge. — The court is not required to again charge 
 a rule of law already stated, although the request was in slightly differ- 
 ent language. Wagner v. Buffalo & Rochester Transit Co., 59 App. 
 Div. 419, 69 N. Y. Supp. 113. 
 
 Id.; refusal to charge. — "If upon the whole case the evidence is 
 equally balanced, either upon the question of the defendant's negligence 
 or the plaintiff's freedom from contributory negligence, they must find 
 a verdict in favor of the defendant," where the evidence warrants, is 
 error. Schaefer v. Metropolitan Street Ry. Co., 34 Misc. Rep. 554, 69 
 N. Y. Supp. 980. 
 
 Refusal to charge in a negligence case, that if upon the whole case 
 the evidence is equally balanced, either upon the question of defendant's 
 negligence or of plaintiff's freedom from negligence, defendant must 
 have the verdict, is error. Brockman v. Metropolitan Street Ry. Co., 
 32 Misc. Rep. 728. 
 
 Id.; swearing falsely; interested witnesses. — A charge that "before 
 they can reject the testimony of any witness in the case, the jury must 
 be satisfied that the person willfully, knowingly, and corruptly swore 
 falsely," without excepting the case of interested witnesses, is erroneous. 
 Biegelson v. Kahn, 33 Misc. Rep. 610, C7 N. Y. Supp. 1112. 
 
 Clerks, etc., to search files, to certify, etc. — Code Civ. Proc, § 961. 
 
 Clergymen, etc., not to disclose confession. — Code Civ. Proc, § 833. 
 A clergyman, or minister of any religion, shall not be allowed to disclose
 
 326 Trial; Trial Jtjrobs. §240. 
 
 a confession made to him, in his professional character, in the course 
 of discipline, enjoined by the rules or practice of the religious body to 
 which he belongs. 
 
 As to the application of this section and waiver thereof, see § 836, 
 Code Civ. Proc. 
 
 Commission; deposition. — An order suppressing the same must be 
 obtained, so it cannot be read in evidence. Hedges v. Williams, 33 Hun, 
 546; Denny v. Horton, 11 Daly, 358. And see § 212. 
 
 Contempt of court. — Criminal. See §§ 4 to 8. Contempts punishable 
 civilly. See § 8. 
 
 Continuing trial. — By section 15 the trial of an action or special 
 proceeding may be continued from day to day, or from one day to any 
 other day or days until the same is finished. A special proceeding may 
 be continued before another justice, but not an action. 
 
 Contract; law of place. — All matters bearing upon the execution, 
 interpretation, and validity of contracts, including the capacity of the 
 parties to contract, are determined by the law of the place where the 
 contract is made. Union Nat. Bank v. Chapman, 169 N. Y. 538. 
 
 Copies of records and papers in certain offices; presumptive evidence. 
 — Code Civ. Proc, § 933. 
 
 Id.; records of United States courts. — Code Civ. Proc, § 943. A 
 copy of the record, or any other proceeding, of a court of the United 
 States is evidence, when certified by the clerk or officer in whose custody 
 it is required by law to be. 
 
 Corporation. — When proof of corporate existence unnecessary. See 
 § 176 of this act, and § 1776, Code Civ. Proc. 
 
 Id.; admission by member of corporation. — Code Civ. Proc, § 839. 
 
 Counsel reading to the jury. — When counsel are permitted, under 
 objection and exception, while summing up, to read to the jury an ab- 
 stract from a pamphlet or newspaper, or to exhibit a cartoon, not in 
 evidence, it is good ground for reversal. Koelges v. Guardian Life Ins. 
 Co., 57 N. Y. 638; Williams v. Brooklyn Elevated Co., 126 N. Y. 96; 
 McKeever v. Weyen, 11 Week. Dig. 258; People v. Fielding, 158 N. Y. 
 547. 
 
 Credibility of witness a question for the jury. — Although the evi- 
 dence of defendant and her employee in an action for negligence based in 
 part upon the personal omission of such employee are uncontradicted, 
 their credibility presents a question for the jury. Eastland v. Clarke, 
 165 N. Y. 420, 59 N. E. 202. 
 
 Where a witness is interested in the issue on trial, his credibility is 
 a question for the jury although he is not impeached or contradicted, 
 and the court is not warranted in directing a verdict upon his testi- 
 mony alone. The same rule applies to the testimony of two witnesses, 
 both of whom are equally interested and testifying to the same facts. 
 Saranac & Lake Placid R. R. Co. v. Arnold, 167 N. Y. 368, 60 N. E. 
 647, revg. 41 App. Div. 482.
 
 § 240. Trial ; Trial Jurors. 327 
 
 The jury has the right to credit the testimony of plaintiff as against 
 five witnesses produced by defendant. Wheeler v. Metropolitan St. Ry. 
 Co., 32 Misc. Rep. 764, 66 N. Y. Supp. 477. 
 
 Crime. — Conviction of, not to exclude witness. See § 832, Code Civ. 
 Proc. 
 
 Cross-examination. — The court has power to restrain an abuse of 
 the right of cross-examination, and to prevent an improper or vexatious 
 delay in the progress of a trial, and it is the duty of the court to exer- 
 cise that power, whenever the ends of justice require it. Peck v. Rich- 
 mond, 2 E. D. Smith, 380; Plato v. Kelly, 16 Abb. 188. 
 
 In cross-examining a witness for the purpose of affecting his credit, 
 great latitude is usually allowed to counsel. But where the sole object 
 is to impeach the witness, and the matters inquired about are collateral, 
 and not pertinent to the matter in issue, the extent is entirely discre- 
 tionary with the court. Allen v. Bodine, 6 Barb. 383; La Beau v. Peo- 
 ple, 34 N. Y. 223; Real v. People, 42 N. Y. 270. 
 
 In an action on a contract for services as valet, Held, that it was 
 reversible error to permit cross-examination of defendant concerning 
 his relations with certain women. Mowbray v. Gould, 63 App. Div. 
 158, 71 N. Y. Supp. 365. 
 
 Default; judgment by. — Verified complaint not having been served 
 with the summons, plaintiff cannot take judgment by default without 
 proving his case. Whitman, etc. v. Hamilton, 27 Misc. Rep. 198, 57 
 X. Y. Supp. 760. 
 
 Defendant's failure to appear. — See § 147. 
 
 Demand for judgment. — On trial of issue of fact, prayer for relief 
 not material. Hopkins v. Lane, 2 Hun, 38; Caswell v. West, 3 Sup. Ct. 
 <T. & C.) 383. 
 
 Discontinuance. — The plaintiff, before the action is finally submitted, 
 has a right to discontinue it; and it is the duty of the justice to give 
 judgment, dismissing the action with costs, notwithstanding the defend- 
 ant had interposed a counterclaim. Bidwell v. Weeks, 2 Hilt. 106; 
 Colding v. Victor, 26 Misc. Rep. 728, 56 N. Y. Supp. 1044; Rothenberg 
 v. Filarsky, 30 Misc. Rep. 610, 62 N. Y. Supp. 721; Heineman v. Van 
 Stone, 34 Misc. Rep. 202, 68 N. Y. Supp. 803. An exception to refusal 
 is necessary. Transcendent L. Co. v. Steitz, 35 Misc. Rep. 305, 71 N. Y. 
 Supp. 947. 
 
 Direction of verdict. — Where, if the jury had rendered a verdict for 
 plaintiff in a negligence case, the evidence suffices to sustain it, it is 
 error to direct a verdict for defendant. Tait v. Buffalo Ry. Co., 55 
 App. Div. 507, 67 N. Y. Supp. 403. 
 
 Defendant moved to dismiss the complaint, at the close of plaintiff's 
 case, decision was reserved, defendant called a witness, did not renew 
 his motion or ask that any question be submitted to the jury, and the 
 court directed a verdict for plaintiff, to which defendant took no ex- 
 ception. Held, that there was no authority for filing a decision and
 
 328 Trial ; Trial Jurors. § 240. 
 
 exception thereto. Murray v. City of New York, GO App. Div. 541, 69 
 N. Y. Supp. 959. 
 
 Id.; where both parties move. — Both parties having requested the 
 direction of a verdict, the court has the functions of a jury. Cypress 
 v. Haulenbeek Roasting & Milling Co., 34 Misc. Rep. 81G, 69 N. Y. Supp. 
 <i50. 
 
 Disputed question of fact for the jury. — Whenever there is a dis- 
 puted question of fact the case must go to the jury, though it is under- 
 stood that a verdict for plaintiff will not be permitted to stand. Mar- 
 shall v. City of Buffalo, 63 App. Div. 603, 71 N. Y. Supp. 719; McCon- 
 nell v. N. Y. Cent., etc., R. R. Co., 63 App. Div. 545, 71 N. Y. Supp. 
 616. It may be taken from the jury if the fact is either uncontradicted 
 or the contradiction is illusory, or where the answering evidence is a 
 scintilla merely. Lawrence v. Wilson, 64 App. Div. 562, 72 N. Y. Supp. 
 289. 
 
 Docket. — By section 285, the docket-books of this court, or a tran- 
 script thereof, certified by the clerk or his successor in office, with the 
 seal of the court impressed thereon, are evidence to prove facts as 
 stated therein. 
 
 Documentary evidence as a substitute for oral evidence. — Art. 1, 
 §§ 921 to 931, Code Civ. Proc. 
 
 Estoppel of a former judgment extends to every material matter 
 within the issues which was expressly litigated and determined and also 
 to those matters which, although not expressly determined, are compre- 
 hended and involved in the thing expressly stated and decided, whether 
 they were or were not actually litigated or considered. Malone v. Weil, 
 67 App. Div. 169. 
 
 Evidence; objections to. — The grounds of objection must be stated. 
 Pearson v. Fiske, 2 Hilt. 146; Fountain v. Pettee, 38 N. Y. 184; Stoats 
 v. Hudson River R. R. Co., 22 How. Pr. 463; McCarty v. Edwards, 24 
 How. Pr. 236, 20 Johns. 357, 5 Barb. 398, 8 N. Y. 442, 28 Barb. 462, 2 
 Abb. Pr. 271, note; Mallory v. Perkins, 9 Bosw. 572; Button v. Mc- 
 Cauley, 38 Barb. 413. 
 
 Id.; order of. — It is a general rule that the time, manner, and order 
 of receiving evidence is a matter of discretion with the judge. Caldwell 
 v. New Jersey Steamboat Co., 47 N. Y. 282; Bedell v. Powell, 13 Barb. 
 183 ; Seeley v. Chittenden, 4 How. 265. 
 
 Id.; party may be rebutted. — Code Civ. Proc, § 838. The testimony 
 of a party taken at the instance of the adverse party, orally or by 
 deposition, may be rebutted by other evidence. 
 
 Id.; rebutting is such as contradicts, modifies, explains, or varies 
 the evidence of the other party. Romertze v. East River Bank, 2 
 Sweeny, 82; s. c, 49 N. Y. 577. 
 
 Exhibits. — A justice has no power, upon the trial of an action for 
 breach of warranty of a chattel, to compel a party, or witness, to pro- 
 duce it in court for inspection. Hunter v. Allen, 35 Barb. 42.
 
 § 240. Trial ; Trial Jurors. 329 
 
 Expiration of judge's term of office. — A justice cannot finish, after 
 the end of his term of office, the trial of a case commenced before him, 
 before the expiration thereof. In re Rodding, 14 Civ. Proc. Rep. 48. 
 See also § 16. 
 
 Foreign corporation; book of. — When evidence. See Code Civ. Proc, 
 § 929, and when a copy thereof is evidence, and how the copy is to be 
 verified. See Code Civ. Proc, §§ 930, 931. 
 
 Foreign State, territory, or country. — The unwritten or common law 
 of another State, or of a territory, or of a foreign country, may be 
 proved as a fact, by oral evidence. § 942, Code Civ. Proc. 
 
 Former trial. — When testimony taken on, is admissible. See Code 
 Civ. Proc, § 830; Malcolm v. Weil, 67 App. Div. 169. 
 
 Husband or wife. — When competent and incompetent witnesses. See 
 § 831, Code Civ. Proc 
 
 Immaterial variance in pleading to be disregarded. — See § 171; see 
 also § 2943, Code Civ. Proc. 
 
 Improper statement made to the jury. — If the trial court seeks to cor- 
 rect improper statements made in the presenceof the jury, the correction 
 should be as broad as the error and cover substantially the same ground; 
 and it does not cure the error unless it is sufficiently extensive, clear, 
 and specific to repel the presumption of injury. People v. Fielding, 158 
 N. Y. 542, revg. s. c, 36 App. Div. 401. 
 
 Inspection of premises. — The trial judge, upon the trial of an action 
 of trespass upon land in which the issue is the ownership as between 
 plaintiff and defendants of the disputed premises, where the descriptions 
 in the conveyances are not clear and the testimony makes the identity 
 of the monuments uncertain, may, at the request of the respective par- 
 ties and their counsel, and accompanied by them, make a personal 
 examination of the premises. Weiant v. Rockland Lake Trap-Rock Co., 
 61 App. Div. 383, 70 N. Y. Supp. 713. 
 
 Issues. — Where parties consent to litigate a claim before the justice 
 of which he would have jurisdiction, no objection can be raised to his 
 judgment on the ground that the issues were not within the pleadings. 
 Conyngham v. Shiel, 20 Misc. Rep. 590. 
 
 Jurisdiction. — The fact that jurisdiction over the defendant does not 
 appear is not available if not taken at the trial. Hill v. Moebus, 31 
 Misc. Rep. 134, 63 N. Y. Supp. 1022. See § 248, subd. 3. 
 
 Jurors and juries; challenge, grounds of. — See Ay res v. Hammonds- 
 port, 13 Civ. Proc Rep. 236; Hathaway v. Halimer, 25 Barb. 201; Peo- 
 ple v. Horton, 13 Wend. 9 ; M alloy v. Pelham, 4 N. Y. St. Rep. 828. 
 
 Id.; Id.; peremptory challenge; number of. — By section 1176, Code 
 of Civil Procedure, upon the trial of an issue of fact, joined in a civil 
 action, in a court of record, each party may peremptorily challenge- 
 not more than six, and in a court not of record, each may peremptorily 
 challenge not more than three of the persons drawn as jurors for the 
 trial.
 
 330 Trial ; Trial Jurors. § 240. 
 
 By section 1090, Code of Civil Procedure, the right of challenge to a 
 particular juror at the trial is not impaired by the fact that the com- 
 missioner of jurors must alone decide upon the qualifications and exemp- 
 tions of jurors, as provided in chapter X, title IV, article I, of the Code 
 of Civil Procedure. 
 
 Id.; Id.; trial of. — Exceptions to and review of the determination of 
 the court in reference thereto. — See Code Civ. Proc, § 1180. See 
 Mechanics & F. Bank v. Smith, 19 Johns. 115; Smith v. Floyd, 18 Barb. 
 522. 
 
 Id.; Id.; waiver of. — See Bennett v. Matthews, 40 How. 428; Hayes 
 v. Thompson, 15 Abb. N. S. 220; Salisbury v. McCloskey, 26 Hun, 262. 
 
 Id.; examination and swearing of the jury. — See notes to § 233, 
 " Qualification, disqualification, and exemption of jurors." 
 
 Id.; instructions to JTiry. — On recovery of plaintiff for conversion of 
 personal property, it is proper for the court to direct the jury to award 
 interest on the amount recovered from the date of the conversion. Ein- 
 stein v. Dunn, 61 App. Div. 195, 70 N. Y. Supp. 520. 
 
 Judicial notice.— What is. See Hunter v. N. Y., O. & W. R. R. Co., 
 27 X. Y. St. Rep. 729. where the cases on this subject are collated. 
 
 Id.; justice has power to order. — By section 232, a justice has power, 
 within eight days (now fourteen days) after the conclusion of a trial 
 before him, to direct a trial by jury. See also Zeimer v. Stearns, 14 
 Misc. Rep. 7. The order is to set the case for trial within eight days. 
 § 232. 
 
 Id.; marshal in charge of. — The jury must always be put in charge 
 of a constable (marshal) sworn to attend them, unless they find a 
 verdict without leaving their seats. And this, whether the jury re- 
 tire from the court, or the court leaves them alone in the courtroom. 
 Douglass v. Blockman, 14 Barb. 381. 
 
 Id.; oath to marshal. — You swear, in the presence of Almighty God, 
 that you will, to the utmost of your ability keep the persons sworn as 
 jurors in this trial, together in some private and convenient place, 
 without any meat or drink, except such as shall be ordered by me; 
 that you will not suffer any communication, orally or otherwise, to be 
 made to them; that you will not communicate to them yourself, orally 
 or otherwise, unless by my order, or to ask them whether they have 
 agreed on their verdict, until they shall be discharged, and that you 
 will not, before they render their verdict, communicate to any person 
 the state of their deliberations, or the verdict they have agreed on. So 
 help you God. 3 Rev. Stat. (6th ed.), § 101, p. 415; Hirsh on Juries, 
 § 838, p. 241, and p. 320. 
 
 Id.; oath to. — You, and each of you, do swear, in the presence of 
 Almighty God, that you will well and truly try the matter in difference 
 
 between , plaintiff, and , defendant, and a true verdict 
 
 will give according to evidence. So help you God. Hirsh on Juries.
 
 §240. Trial; Trial Jurors. 331 
 
 Id. ; not sworn. — The defendant moved to set aside the verdict for 
 irregularity on the ground that one of the jurors upon the panel had 
 not been sworn. Held, that such an omission, unaccompanied by in- 
 jury or prejudice, was not a ground for setting aside a verdict. Har- 
 denburgh v. Crary, 15 How. Pr. 307. 
 
 If a trial proceeds, and a verdict is rendered without a jury being 
 sworn, such a verdict is not irregular and void, when neither party 
 asked that the oaths should be administered. Jenkins v. City of Hud- 
 son, 2 How. N. S. 244, 8 Civ. Proc. Rep. 76, 16 Abb. N. C. 137. 
 
 Id.; objections; when to be made. — An irregularity in summoning the 
 jury is good ground for challenge to the array, and must be made in 
 the first instance. If no objection be made until after the jury are 
 impaneled and sworn, it is too late. Mayor of New York v. Mason, 1 
 Abb. Pr. 352. 
 
 After the jury were sworn, but before the trial had commenced, the 
 justice ordered some of the jurors to be withdrawn, and others sub- 
 stituted. His right to do so was considered doubtful, but it was held 
 that the defendant, by not objecting at the time, waived his right to 
 object. Cook v. Ritter, 4 E. D. Smith, 253. 
 
 Id.; taking out papers. — The judge has discretionary power to allow 
 them to take with them any papers read in evidence, when they retire 
 to deliberate on their verdict. Hoicland v. Willetts, 9 N. Y. 170; 
 Porter v. Mount, 45 Barb. 422: Schnappner v. Second Ave. R. R. Co., 
 55 Barb. 497. 
 
 Verdict set aside for delivery to jurors of a paper touching the issue. 
 O'Brien v. Merchants' Fire Ins. Co., 38 N. Y. Super. (J. & S.) 482. 
 
 It is not proper to allow the jury to take minutes of testimony kept 
 by the counsel on one side. Durfee v. Eveland, 8 Barb. 46. 
 
 Id.; withdrawing. — A party surprised by evidence should ask to 
 withdraw a juror. Messenger v. Fourth Nat. Bank, 48 How. Pr. 542. 
 
 Material variances between pleading and proof, how provided for. 
 See § 172. 
 
 Mistakes, omissions, defects, and irregularities; and general regula- 
 tions respecting bonds and undertakings. — Sections 728, 729, 730, and 
 810 to 816. inclusive, of the Code of Civil Procedure, apply to this 
 court by subdivision 6 of section 3347 of said Code. See also § 20 
 of this act, making all sections of the Code applicable when they do 
 not conflict with the provisions of this act. 
 
 By section 70 of this act. sections 106 to 110 and sections 127 and 
 128. relating to undertakings, sureties, and justification, are made 
 applicable. 
 
 Motion to dismiss the complaint; cause of action; unverified answer. 
 — Failure of defendant to serve a verified answer, when required, does 
 not preclude him from moving to dismiss the complaint, as not stating 
 a cause of action, and such motion is to be treated as a demurrer. 
 Morris v. Hunken, 40 App. Div. 129, 57 N. Y. Supp. 712.
 
 332 Tiual; Trial Jurors. §240. 
 
 Id.; at close of case. — Failure to move to dismiss at the close of the 
 case, or ask for a direction of a verdict, or object to the submission of 
 the case to the jury, is a concession that there is evidence tending to 
 prove the facts alleged, and precludes the party from claiming on 
 appeal that the verdict is without evidence. Sullivan v. Brooks et al., 
 10 Misc. Rep. 368. 
 
 Omission to move for a dismissal at the close of the evidence, or for 
 the direction of a verdict, is an admission that there is a question 
 of fact for the jury. Brown v. Levi, 34 Misc. Rep. 812, 68 N. Y. Supp. 
 941; Kafka v. Levenson, 18 Misc. Rep. 202; Hendy v. Eagle, 25 Misc. 
 Rep. 472; Hopkins v. Clark, 158 N. Y. 299. 
 
 Id.; during the progress of the direct examination of a witness, 
 — Held properly denied. Winfield v. Potter, 24 How. Pr. 446. 
 
 Exception to refusal to dismiss complaint. — An exception to a refusal 
 to dismiss the complaint at the close of the plaintiff's case is not 
 available where the motion is not renewed before the final submission 
 of the case to the jury. Scott v. Yeandle, 20 Misc. Rep. 89. 
 
 Id.; grounds for, must be assigned. — The motion must assign grounds 
 upon which it is based, it must point out the specific defect in the 
 proofs. Binsse v. Wood, 37 N. Y. 526; Kafka v. Levensohn, 18 Misc. 
 Rep. 202, 205; s. c, 41 N. Y. Supp. 368, 370; The City of Buffalo v. 
 A T . Y., etc., R. R. Co., 152 N. Y. 276, 283. 
 
 Id.; on opening of the case. — On the dismissal of the complaint on 
 the opening of the case it must be assumed that facts set out in the 
 complaint and stated by the counsel are true. Yapel v. 2V. Y., On- 
 tario, etc., Ry. Co., 57 App. Div. 265. 68 N. Y. Supp. 292. 
 
 Id.; renewal of, at close of entire case. — The motion to dismiss com- 
 plaint, made at the close of plaintiff's case, must be renewed at the 
 close of the entire case, and a failure to do so is a concession that 
 the case was properly one for the jury. Barrett v. Third Ave. R. R. 
 Co., 45 N. Y. 628; Peake v. Bell, 7 Hun, 454; Clement v. Congress 
 Spring Co., 91 Hun, 637; Steinau v. Scherer, 15 App. Div. 5, 7, 8; 
 Griffith v. Staten Island R. T. Co., 80 Hun, 141, 142; Stewart v. Fidelity 
 L. Assn., 19 Misc. Rep. 49, 51; Schicinger v. Raymond, 105 N. Y. 648; 
 O'Connell v. Samuel, 81 Hun, 357; Scott v. Yeandle, 20 Misc. Rep. 89. 
 
 By a renewal of the motion to dismiss at the close of the whole case, 
 defendant has the right to a ruling whether there is at that time 
 evidence to go to the jury. Apati v. Delaware, Lackawanna, etc., R, /?. 
 Co., 64 App. Div. 515, 72 N. Y. Supp. 322. 
 
 Id.; waiver. — Where a motion to dismiss the complaint for insuf- 
 ficiency of the evidence is denied, and the case submitted without ob- 
 jection from the plaintiff, such acquiescence on his part is equivalent 
 to a consent that the cause be determined on the merits, and operates 
 as a waiver. Allen v. The Church of the Beloved Disciple, 16 Misc. 
 Rep. 584.
 
 § 240. Trial ; Trial Jurors. 333 
 
 Motion to strike out. — When evidence tending to prove a material 
 fact in issue is received under objection and requires proof of other 
 facts to make it complete which have not been supplied, its presence 
 in the record is no ground for reversal in the absence of a motion sub- 
 sequently made to strike it out. Hamel v. Brooklyn Heights It. It. Co., 
 59 App. Div. 135, 69 X. Y. Supp. 166. 
 
 No exception was taken to a ruling allowing a question objected to, 
 but an exception was taken to a ruling denying a motion to strike out 
 the testimony adduced. Held, that the refusal of the court to strike 
 out was not error, but the remedy was to ask an instruction to the 
 jury to disregard the evidence. Smith v. Nassau Electric R. R. Co., 
 57 App. Div. 152, 67 X. Y. Supp. 1044. 
 
 When incompetent evidence has been received without objection, the 
 court may, in its discretion, deny a motion to strike out such evi- 
 dence, and the remedy of the party against whom the incompetent 
 evidence is received is to request the court to instruct the jury not 
 to consider it, which is his only recourse. Meislahn v. Irving Nat. 
 Bank, 62 App. Div. 231, 70 X. Y. Supp. 988. 
 
 Negotiable paper; proof of lost. — Code Civ. Proa, § 1917. See also 
 notes to § 1, subd. 1. See Desmond v. Rice, 1 Hilt. 330; Frank v. 
 WesseU, 04 X. Y. 155. 
 
 This provision of the Code does not apply where the note was not 
 lost, but was destroyed by fire. In that event the plaintiff can recover 
 without giving a bond. Scott v. Meeker, 20 Hun, 161 ; Eoxie v. Ken- 
 nedy, 10 X. Y. St. Rep. 786; Dessart v. Leggett, 16 X. Y. St. Rep. 
 582, affg. 5 Duer, 156. 
 
 A tender of a bond is sufficient if made upon trial before verdict. 
 Brookman v. Metcalf, 4 Robt. 568. 
 
 Unless the lost note was negotiable, which is not to be presumed, a 
 bond is not necessary. Wright v. Wright, 54 X. Y. 437, affg. 59 Barb. 
 505. 
 
 Ncnjoinder. — A defendant not pleading or giving notice of the non- 
 joinder of a party cannot raise that objection on the trial. Abbe v. 
 Clark, 31 Barb. 238: Scrantom v. Farmers, etc., Bank of Rochester, 24 
 X. Y. 424; Pachin v. Peck, 38 X. Y. 39. 
 
 Notary public's certificate evidence; affidavit against it. — Code Civ. 
 Proa, § 923. 
 
 In case of death, or insanity, absence, or removal of a notary public, 
 his original protest is proof of demand, also any note or memoranda, 
 or his official register of acts. Code Civ. Proa, § 924. 
 
 For proof of presentment, etc., of foreign bill, see Code Civ. Proa, 
 § 025. 
 
 Notice of motion to set aside verdict. — The statutory provision re- 
 quiring a five days' notice of motion to set aside a verdict may be
 
 334 Trial; Trial Jurors. §240. 
 
 waived. O'Gorman v. Teets, 20 Misc. Rep. 359. See " Grounds of mo- 
 tion to set aside verdict," etc., § 254. 
 
 Oath or affirmation. — As to administration of an oath or affirmation 
 and general mode of swearing, see Code Civ. Proa, §§ 842 to 851. 
 
 Objections and exceptions. — Where the first of a series of similar 
 questions is objected to and exception taken to overruling the objection, 
 and a motion made to strike out the answer, and exception taken 
 to its denial, the objection, motion, and exceptions need not be taken 
 to each question and answer in succession, in order to have the ex- 
 ceptions available. Wilson v. Nassau Electric R. R. Co., 56 App. Div. 
 570, 67 N. Y. Supp. 486. 
 
 An objection that the evidence offered is incompetent raises every 
 ground of incompetency and is available on appeal as to every ground 
 which could not have been obviated at the trial, including that it was 
 not part of the res gestce. Taylor v. Central, etc., R. R. Co., 63 App. 
 Div. 586, 71 N. Y. Supp. 884. 
 
 Official certificates, evidence. — Code Civ. Proc., § 921. 
 
 Order of arrest. — \V here an order of arrest has been granted, and is 
 not vacated, plaintiff need only prove his money demand, and he is 
 then entitled to judgment subjecting defendant to execution against his 
 person. Stern v. Moss, 67 How. Pr. 199; s. c, 12 Daly, 516; Johnson 
 v. Florence, 32 How. Pr. 230. 
 
 Ordinances, etc., of cities, villages, etc., may be read in evidence. — 
 Code Civ. Proc, § 941. 
 
 Party when he can and cannot be examined. — See Code Civ. Proc, 
 § 829. 
 
 Physicians not to disclose professional information. — Code Civ. Proc, 
 § 834. A person, duly authorized to practice physic or surgery, shall 
 not be allowed to disclose any information which he acquired in at- 
 tending a patient, in a professional capacity, and which was necessary 
 to enable him to act in that capacity. 
 
 By section 836 of the Code of Civil Procedure, certain exceptions 
 are made in this respect. 
 
 Plaintiff; failure to appear and dismissal of action. — See §§ 248 and 
 249. 
 
 Pleading; objections to. — There are but two objections that can be 
 taken to a pleading on the trial ; one that the court has no jurisdiction 
 of the action, and the other, that the complaint does not state facts 
 sufficient to constitute a cause of action. Winterson v. Eighth Ave. 
 R. R. Co., 2 Hilt. 389; Luddington v. Taft, 10 Barb. 447. 
 
 Either of these objections may be raised for the first time upon the 
 trial, and will not be waived by an omission to demur. Coffin v. Rey- 
 nolds, 37 N. Y. 640; § 499 of the Code Civ. Proc; De Bussiere v. 
 Holladay, 4 Abb. N. C. 111.
 
 §240. Tkial; Trial Jurors. 335 
 
 The practice of taking objections to a pleading on the trial is not 
 favored by the courts. Smith v. Countryman, 30 N. Y. G55; Mayor v. 
 Fiegel, 34 How. 434. 
 
 It has been held to be wholly within the discretion of the judge 
 whether he will or will not allow the pleadings to be read to the jury 
 during the progress of the trial. Willis V. Forrest, 2 Duer, 310. 
 
 Id. ; facts proven. — The court will conform the pleading to the facts 
 proven. This power is given by statute and is very broad and ample, 
 the intention being not to restrict parties to the formalities of plead- 
 ings, but to try the case broadly upon the merits. Binges v. Evans, 
 1 E. D. Smith, 192. 
 
 Printed copies of laws of another State, and reports of cases may be 
 read in evidence. Code Civ. Proc, § 942. 
 
 Public officer; when certificate of public officer is evidence.— Code 
 Civ. Proc, § 922. 
 
 Request to go to jury. — Defendants' counsel having unsuccessfully 
 moved for dismissal of the complaint, and for a direction of a verdict, 
 excepted to the submission of each and every one of five questions sub- 
 mitted to the jury, but made no request for the submission of any 
 other questions or that the case be submitted in any other form, — 
 Held, that he was not in a position to raise the question on appeal 
 that the findings amounted to a special verdict, and that all the issues 
 were not, and should have been, submitted to the jury. Genung v. 
 Metropolitan Life Ins. Co., 60 App. Div. 424, 69 N. Y. Supp. 1041. 
 
 Right to begin; affirmative of issue; to open and close the case. — The 
 right to begin is a matter of great importance in a jury trial, as the 
 party who begins has the right to make the closing address to the 
 jury. Huntington v. Conkey, 33 Barb. 218. 
 
 It is a general rule that the party upon whom the affirmative of the 
 issue lies is entitled to begin. Lindsey v. European Petroleum Co., 41 
 How. 56; Hoxie v. Green, 37 How. 97; Elvoell v. Chamberlain, 31 N. Y. 
 611; Clafflin v. Barre, 28 Hun, 204. 
 
 Where a complaint is admitted, and nothing remains to be proven 
 but the interest, the defendant has the affirmative of the issue. Bren- 
 nan v. Security Life Ins. Co., 4 Daly, 296; Hunter v. American Pop- 
 ular Life Ins. Co., 4 Hun, 794; Millerd v. Thorn, 56 N. Y. 402. 
 
 In all cases where damages sought to be recovered in the action are 
 unliquidated, the plaintiff has the right to begin. Huntington v. 
 Conkey, 33 Barb. 218. 
 
 The denial of this right is ground for reversal on appeal, unless the 
 court can clearly see that no injury or injustice resulted from the er- 
 roneous decision. Hoxie v. Green, 37 How. 97 ; Fry v. Bennett, 28 N. Y. 
 324; Murray v. N. Y. Life Ins. Co., 85 N. Y. 236. 
 
 Id.; affirmative of issue. — A party holding the affirmative upon an 
 issue of fact has the right to open and close the proof and reply.
 
 336 Twial; Tkial Jubobs. § l ; 40. 
 
 If the plaintiff, without giving any evidence, is entitled to recover 
 upon the pleadings, the affirmative of the issue rests with the defend- 
 ant, and he is entitled to open and close the proof and to reply. Heil- 
 bronn v. Herzog, 1(55 N. Y. 98. 
 
 Where the complaint alleges a sale and delivery of goods, for the 
 price of which the action is brought, and the answer merely alleges 
 that the goods were sold upon a term of credit, which had not expired 
 at the commencement of the action, the affirmative of the issue rests 
 with the defendant and he is entitled to open and close the case. Heil- 
 bronn v. Herzog. 165 N. Y. 98, 58 N. E. 759. 
 
 Id.; opening case. — The object of opening the case is to state briefly 
 the nature of the action, the substance of the pleadings, the points in 
 issue, the facts and circumstances of the case, and the substance of the 
 evidence to be adduced in its support. Ayrault v. Chamberlain, 33 
 Barb. 229. 
 
 The judge cannot dismiss the complaint on the ground that the coun- 
 sel for plaintiff has failed to state a cause of action in his opening. 
 Sawyer v. Chambers, 43 Barb. 622 ; s. c., 44 Barb. 42 ; Stewart v. 
 Hamilton, 28 How. 265; s. c., 18 Abb. 298. 
 
 After the plaintiff has rested, the defendant may open his case to the 
 jury by giving a statement of his answer to the plaintitl s case, and the 
 evidence he proposes to give to sustain it. Ayrault v. Chamberlain, 33 
 Barb. 229. 
 
 Id.; reopening case. — After the parties have rested, but before the 
 case has been finally submitted, while the parties and their witnesses 
 are still present, the admission of additional evidence is entirely in the 
 discretion of the justice. Harpell v. Curtis, 1 E. D. Smith, 7S; Pickert 
 v. Derler, 12 Wend. 153; Reed v. Barber, 3 Code Rep. 160; Lambert v. 
 Seely, 2 Hilt. 430; Hyland v. Sherman, 2 E. D. Smith, 235; Williams 
 v. Hays, 20 N. Y. 58; Anthony v. Smith, 4 Bosw. 503; Solomon v. 
 Central Pic, etc., R. R. Co., 1 Sweeny, 298; Henry v. Lowell, 16 Barb. 
 268; Meyer v. Goedel, 31 How. 456. 
 
 Seal, presumptive evidence of consideration. — Code Civ. Proc, § 840. 
 A seal upon an executory instrument hereafter executed is only pre- 
 sumptive evidence of a sufficient consideration, which may be rebutted, 
 as if the instrument was not sealed. 
 
 Id.- public or corporate, may be stamped, but private seal not. Stat- 
 utory Construction Law (Laws 1892, chap. 677), § 13. 
 
 Second trial. — Where a judgment has been reversed and a new trial 
 ordered, the justice has power, on the second trial, to direct that the 
 trial be had by jury. New York Small Stock Co. v. Third Ave. R. R. 
 Co., 16 Misc. Rep. 64. 
 
 Statute or resolution of the Legislature; how proved.— See Code 
 Civ. Proc, § 932.
 
 § 240. Trial ; Trial Jurors. 337 
 
 Sunday. — Trial in court on Sunday is illegal and void. People ex rel. 
 Donohue v. Walton, 35 Misc. Rep. 320. 
 
 Transcript of proceedings, or papers filed in this court is evidence, by 
 latter part of section 15 of this act. See also § 289. 
 
 Trial. — After the plaintiff has made a prima facie case and rested, 
 the defendant states his case to the jury and calls his witnesses; and 
 after he has rested, the plaintiff may introduce evidence in denial, or by 
 way of avoidance of the defendant's evidence; and if the evidence of 
 plaintiff in reply was in avoidance of defendant's evidence, the defend- 
 ant may introduce new evidence rebutting that given in reply. 
 Ramertze v. East R. Haul:, 2 Sweeny, 82; s. c, 49 N. Y. 577; Ayrault v. 
 Chamberlain, 33 Barb. 229. 
 
 The complaint may be amended on the trial so as to include matters 
 proved upon the trial, where such amendment is in furtherance of jus- 
 tice. Parsons v. Sutton, 60 X. Y. 92. 
 
 The judge has power to adjourn the trial to enable defendant to pro- 
 cure witnesses to meet testimony of plaintiff which could not have been 
 anticipated from the pleading, if, in his discretion, he thinks an ad- 
 journment should be had. Jourdan v. Healy, 46 N. Y. St. Rep. 198. 
 
 Waiver as to confidential and privileged communications of attor- 
 neys and counselors, clergymen, etc., and physicians and surgeons, how 
 to be made. See § 836, Code Civ. Proc. 
 
 Witness; adverse. — Plaintiff, compelled to call defendant as a wit- 
 ness to prove his case, should be allowed a large latitude in conducting 
 the examination. Levin v. Spero, 35 Misc. Rep. 792. 
 
 Id.; conviction of crime not to exclude witness. — See § 832, Code 
 Civ. Proc. 
 
 Id.; credibility; impeaching. — A party having introduced a witness, 
 asserts his credibility, and cannot impeach it by showing that he had 
 previously sworn contrary to his present testimony. Craft v. Brando ic, 
 61 App. Div. 247, 70 N. Y. Supp. 364. 
 
 Id.; impeaching. — And it is in the discretion of the court to inter- 
 pose and protect a witness against any inquiries not relevant to the 
 issue, and having no object in view but the impeachment of the witness. 
 Great Western Turnpike Co. v. Loomis, 32 N. Y. 127; Varona v. Socar- 
 ras, 8 Abb. 302. 
 
 In the impeachment of witnesses, it is the general character alone 
 that is in question, and therefore specific acts of immorality on the part 
 of a witness cannot be given in evidence to impair his credibility. 
 Coming v. Coming, 6 N. Y. 97; Greaton v. Smith, 1 Daly, 380. 
 
 Id.; limiting number of. — The court may exercise a reasonable dis- 
 cretion as to the number of witnesses to be examined on one side, as to 
 what occurred at a given time and place between the parties, and a 
 decision in that respect is not the subject of an exception which can be 
 
 22
 
 338 Trial; Trial Jurors. §241. 
 
 reviewed. Anthony v. Smith, 4 Bosw. 503; Spear v. Meyers, Barb. 
 44r. : People v. Cook, 8 N. Y. 07, 77. 
 
 Id.; qualification of. — Code Civ. Proa, § 850. The court or officer 
 may examine an infant, or a person apparently of in ah- intellect, pro- 
 duced before it or him as a witness, to ascertain his capacity and the 
 extent of his knowledge; and may inquire oi a person produced as a 
 witness, what peculiar ceremonies in swearing he deems most obligatory. 
 
 Id.; recalling after ease is closed is entirely discretionary. Sheldon 
 v. Wood, 2 Bosw. 207; Earpell v. Curtis, \ E. D. Smith, 78; Treadwell 
 v. Stebbins, 6 Bosw. 538; Lambert v. Seely, 2 Hilt. 429; HeiOenheimer 
 v. Wilson, 31 Barb. 039. 
 
 Id.; transactions with deceased. — The maker of a note is disqualified 
 to testify in his own behalf as to personal transactions and communica- 
 tions between himself and the deceased payee thereof under section 829 
 of the Code of Civil Procedure, as against one obtaining title to the 
 note through such payee. Wangner v. Qrimm, 1(J9 N. Y. 421. 
 
 Id.; when not excused from testifying. — Code Civ. Proa, § 837. A 
 competent witness shall not be excused from answering a relevant 
 question on the ground only that the answer may tend to establish 
 the fact that he owes a debt, or is otherwise subject to a civil suit. 
 But this provision does not require a witness to give an answer which 
 will tend to accuse himself of a crime or misdemeanor, to expose him 
 to a penalty or forfeiture; nor does it vary any other rule, respecting 
 the examination of a witness. 
 
 Writing. — The rule that parol evidence is not admissible to vary a 
 writing does not apply to persons not parties to the writing. Williams 
 v. Fisher, 28 N. Y. Supp. 739. 
 
 Id.; disputed. — Comparison of a disputed writing, with any writing 
 proved to the satisfaction of the court to be genuine, shall be permitted 
 to be made by witnesses in all trials and proceedings, and such writings 
 and the evidence of witnesses respecting the same may be submitted to 
 the court and jury as evidence of the genuineness, or otherwise, of the 
 writing in dispute. Laws 1SS0, chap. 30, § 1, amended by Laws 1888, 
 chap. 555, so as not to apply to any proceeding previously commenced. 
 
 As to meaning of the term " disputed writing," as used in the stat- 
 ute, see People v. Molmeux, 108 N. Y. 204. where the history of this 
 subject is collated. 
 
 § 241. Submission of a controversy upon facts admitted. — 
 When an action or summary proceeding has been commenced 
 according to the provisions of this act, upon its being reached 
 for trial, the parties, being of full age, may agree upon a 
 statement of the facts upon which the controversy depends 
 and may present a written submission thereof to the court. 
 Such statement must be accompanied with the affidavit of
 
 §§242,243. Trial; Trial Jurors. 330 
 
 one or more of the parties to the effect that the controversy 
 is real and that the submission is made in good faith, for the 
 purpose of determining the rights of the parties. 
 
 Notes to section 241. 
 
 This section, together with sections 242 and 243, are taken from 
 title II. article II, " Submission of a Controversy, upon Facts Ad- 
 mitted," sections 1279, 1280, and 1281 of the Code of Civil Procedure. 
 
 By section 243 it will be seen that " an order of arrest, warrant of 
 attachment, a writ of replevin, or an execution against the person can- 
 not be granted in such an action." 
 
 For decisions under the foregoing sections, see an annotated Code of 
 Civil Procedure. 
 
 § 242. Papers to be filed. — Such statement, submission and 
 affidavit must be filed in the office of the clerk of the court 
 in the district in which the action was commenced. The 
 filing is a presentation of the submission, and each provision 
 of this act relating to an action or summary proceeding, or 
 the costs therein, applies to the subsequent proceedings ex- 
 cept as otherwise prescribed in the next section. 
 
 Note to section 242. 
 
 See notes to section 241. 
 
 § 243. Subsequent proceedings regulated. — An order of ar- 
 rest, warrant of attachment, writ of replevin or execution 
 against the person, cannot be granted in such an action. The 
 action must be tried by the court upon the statement alone 
 and the statement, submission, affidavit and the judgment 
 rendered, and any order or papers necessarily affecting the 
 judgment constitute the judgment record. If the statement 
 of facts is not sufficient to enable the court to render judg- 
 ment, an order must be made dismissing the submission with- 
 out costs to either party, unless the court permit Jhe parties, 
 or, in a proper case, their representative, to file an additional 
 statement, which it may do in its discretion, without preju- 
 dice to the original statement. 
 
 Note to section 243. 
 
 See note to § 242. 
 
 Note. — There are no sections from 243 to 248.
 
 34:0 Judgments. 
 
 title vii. 
 
 Judgment and Execution. 
 Article I. Judgments. 
 11. Executions. 
 
 ARTICLE I. 
 
 Judgments. 
 
 Section 248. Nonsuit; when authorized. 
 
 249. Judgment of dismissal on merits; when. 
 
 250. Judgment when sum exceeds jurisdiction. 
 
 251. Judgment where defendant liable to arrest. 
 
 252. Court may direct verdict; when. 
 
 253. Court may open default. 
 
 254. Motion to set aside verdict or vacate or amend judgment. 
 
 255. New trial; fraud or newly-discovered evidence. 
 
 256. Court may impose conditions, et cetera. 
 
 Notes to title VII, article I. 
 
 There are ten sections in this title under article I, " Judgments,'' 
 from sections 248 to 257 both inclusive. While the above " Contents "' 
 only has nine, from sections 248 to 256, thus omitting to mention sec- 
 tion 257 in the contents, which is a provision for an appeal from an 
 order as provided in sections 253 to 256, inclusive. 
 
 In addition to the " Judgments " specified in tnis article, this act 
 contains the following provisions about " Judgments." 
 
 Judgment; chattel; requisite of, in action to foreclose lien on a. — 
 See § 141. 
 
 Id.; counterclaim when equal or unequal. — See §§ 153 and 154. 
 
 Id.; default. — See § 147, and notes. 
 
 Id.; Docketed, becomes a judgment of Supreme Court. See § 261, and 
 notes. 
 
 Id.; Id. — Binds real property for ten years. See § 263, and notes. 
 
 Id.; Id. — In another county. See § 269. 
 
 Id.; Id. — Effect of, against defendants jointly indebted when all are 
 not served. See § 267. 
 
 Id.; executor or administrator. — See § 156. 
 
 Id.; fictitious name. — Judgment against defendant by a, may be 
 amended. Lien of. See § 1251, Code Civ. Proc, as amended by Laws 
 1902, chap. 318, and § 27 of this act, and notes. 
 
 Id.; issues joined after trial. — See § 230, and notes. 
 
 Id.; joint debtors. — Effect of, against defendants jointly indebted 
 when all are not served. See § 264, and notes. 
 
 Id.; marshal. — Against. See § 270. 
 
 Mechanic's lien. — See § 1, subd. 10. 
 
 Id.; offer to allow, or compromise. — See § 148, and notes.
 
 1 248. Judgments. 341 
 
 Id.; plaintiff to prove his case, except on contract where there is a 
 verified complaint. See § 147, and notes. 
 
 Id.; replevin. — Final judgment in. — See § 12:!. and notes. 
 
 Id.; return of execution and satisfaction. — See § 277. 
 
 Id.; satisfaction of; when presumed. — See § 262, and notes. 
 
 Id.; wage-earners. — In favor of. See § 274. 
 
 Attorney; when judgment void. — Where a person not regularly ad- 
 mitted to practice in the courts of record of the State of New York, 
 and not a party to an action, conducts it in this court, the judgment 
 rendered therein is void as violative of the Code of Civil Procedure, 
 sections 63, 64. Kaplan v. Berman, 37 Misc. Rep. 502. 
 
 Entry of, is the final step in the action, and completes it. People v. 
 Judge, 13 How. Pr. 398; People v. Colhorne, 20 How. Pr. 380; Wetmore 
 v. Rolseman, 14 Abb. Pr. 311: Willey v. Shaver, 1 Sup. Ct. (T. & C.) 
 327. 
 
 Interest on judgment is allowed from the time it is entered. See 
 Code Civ. Proc, § 1211. 
 
 Married woman. — Judgment for, or against, may be entered as if 
 she were single. See § 1206, Code Civ. Proc. 
 
 Motion costs to be included in the judgment, or offset against it. 
 Faber v. Flauman, Mil Misc. Rep. (127, 62 V Y. Supp. 784. 
 
 Voluntary nonsuit. — The plaintiff may elect to be nonsuited on his 
 own election, if he fails in his proof by reason of incompetency or in- 
 sufficiency of evidence. Peters v. Diossy, 3 E. D. Smith, 116. 
 
 The plaintiff must elect to be nonsuited, at the trial, before the com- 
 ing in of the verdict. If the cause is submitted to the justice, and he 
 reserves his decision, the cause is then sub judice on the merits, and the 
 plaintiff has no longer the right to submit to be nonsuited, nor the jus- 
 tice power to grant it. Peters v. Diossy, 3 E. D. Smith, 116; Ehoell v. 
 McQueen, 10 Wend. 521: Hess v. Beekman, 11 Johns. 457: Bennett v. 
 Hull, 10 Johns. 364; Clements v. Benjamin, 12 Johns. 299; Hess V. 
 Beekman, supra. 
 
 A nonsuit ordered aLer the cause has been finally submitted by the 
 plaintiff, on a trial on the merits, even if ordered with the plaintiff's 
 consent, must be regarded as a judgment for the defendant, and is a bar 
 in any other litigation between the parties. Gillian v. Spratt, 8 Abb. 
 Pr. N. S. 13; s. c, 3 Daly, 440. 
 
 § 248. Nonsuit; when authorized. — Judgment that the ac- 
 tion be dismissed with costs, without prejudice to a new 
 action, shall be rendered in the following cases: 
 
 Note to section 248. 
 
 This section is taken from section 1382 of the Consolidation Act 
 (Laws 1882, chap. 410), which was Laws 1857, chap. 344, § 45.
 
 $42 Judgments. §248. 
 
 1. Where the plaintiff voluntarily discontinues the action 
 before it is finally submitted. 
 
 2. When he fails to appear at the time specified in the 
 summons or upon adjournment. 
 
 Notes to section 248, subdivision 2. 
 
 Dismissal of complaint; unverified answer. — Failure of defendant to 
 serve a verified answer does not preclude him from moving to dismiss 
 the complaint as not stating ;i cause of action, and such motion is to 
 be treated as a demurrer. Morris v. Hunken, 40 App. Div. 129, .",7 
 N. Y. Supp. 712. 
 
 Failure to appear on adjourned day, and dismissal of the action 
 therefor, causes loss of jurisdiction of defendant, and plaintiff cannot 
 thereafter restore the case and take an inquest. Abrams v. Fine, 28 
 Misc. Rep. 533, 59 N. Y. Supp. 550. 
 
 Id.; counterclaim. — Defendant had set up a counterclaim, and had 
 commenced his proof, and the cause was adjourned by consent; on the 
 adjournment day the plaintiff failed to appear; the justice proceeded 
 with the trial, and rendered judgment for the defendant for amount 
 of his counterclaim. Held, that the justice erred, and that he ought 
 merely to have dismissed the action. ~Norris v. Bleakley, 3 Abb. Pr. 
 107; s. c, 1 Hilt. 90. 
 
 3. When it is objected at the trhl, and appears by the 
 evidence that the court has not jurisdiction, but if the objec- 
 tion be taken and overruled, it is cause only of reversal on 
 appeal, and does not otherwise invalidate the judgment; if 
 not taken at the trial it is waived, and the court Avill be 
 deemed to have jurisdiction. 
 
 4. Where the plaintiff does not prove his cause of action. 
 
 Notes to section 248, subdivision 4. 
 
 What to be deemed a failure of proof. — See § 173. 
 
 Contract; damages; wages. — The complaint in an action for a wrong- 
 ful discharge from employment, having stated every fact essential to 
 a cause of action for damages for breach of the contract, should not 
 be dismissed because the demand is in the form of an amount due for 
 wages. Williams v. Couriers, 53 App. Div. 599, 66 X. Y. Supp. LI. 
 See also Lester v. Seilliere, 50 App. Div. 239, 63 X. Y. Supp. 748. 
 
 Cause of action for arrest and contract. — Though the complaint by 
 an unskilled laborer, under a statute authorizing an execution against 
 the person, fails to state a cause of action to bring the case within 
 the statute, but sets out a sufficient cause of action for service-, plaintiff
 
 §249. Judgments. 343 
 
 should not be nonsuited. Wahkee v. Young, 29 Misc. Rep. G58, 01 N. Y. 
 Supp. 894. See also Russell v. Corning Mfg. Go., 49 App. Div. 610, 
 63 N.'Y. Supp. 040. 
 
 Replevin. — Failure to make out a case in replevin where defendant 
 does not claim title to himself does not entitle him to a judgment of 
 possession of the property and damages, but only to a dismissal of the 
 complaint. Nichols v. Potts, 35 Misc. Rep. 273. 
 
 Set-off. — Where the complaint was for damages io plaintiff's prop- 
 erty, and the defendant answered by simply averring a set-off, — Held 
 error to order a nonsuit, no evidence having been offered by either 
 party. The defendant admitted plaintiff's claim, and not offering any 
 evidence, judgment should have been rendered for the plaintiff. Greg- 
 ory v. Tralnor, 4 E. D. Smith, 58. 
 
 Sunday. — A judgment cannot be entered on Sunday (Hoghtaling v. 
 Osborn, 15 Johns. 119), and if entered is void. Hastings v. Farmer, 4 
 N. Y. 293. 
 
 Tort and contract. — A complaint stating a cause of action upon con- 
 tract is not necessarily made for conversion by alleging that defendant 
 wrongfully converted a balance of account upon the sale of goods con- 
 signed to him for sale upon commission, and in such case the complaint 
 should not be dismissed at the close of plaintiff's case, if he has made 
 out a cause of action for the proceeds received for sales. Fyfc v. Jack- 
 son, 55 App. Div. 74, 66 N. Y. Supp. 972. See also Garter v. Eighth 
 Ward Bank, 33 Misc. Rep. 128, 07 N. Y. Supp. 300. 
 
 Where, in an action for tort, in wrongfully taking and converting 
 plaintiff's property, there is an entire failure to show that it was 
 wrongful or tortious, or that there was any fraudulent intent, there 
 should be a nonsuit. 16 N. Y. 250, 21 How. Pr. 289, 5 Duer, 389; 
 Hanson v. Wetmore, 39 Barb. 104; Hawkes v. Burke, 34 Misc. Rep. 189. 
 
 § 249. Judgment of dismissal on merits ; when. — Judgment 
 that the action be dismissed on the merits with costs may 
 he rendered in the following cases : 
 
 1. Where, at the close of the whole case, the court is of 
 the opinion that the plaintiff is not entitled to recover as a 
 matter of law. 
 
 2. Where the court sustains a demurrer, and no leave to 
 plead over is granted, as provided in this act. 
 
 Notes to section 249. 
 
 This section is new. 
 
 Dismissal and merits. — Dismissal of an action on the merits for 
 failure of proof is error calling for a reversal, dismissal without preju-
 
 344 Judgments. §§ 250, 2*51. 
 
 dice, with costs, being all thai is within the power of the justice to 
 order. Merkin v. Gersh, 30 Misc. Rep. 758, <i.') X. V. Supp. 75. 
 
 Dismissal of the complaint at the close of plaintiff's case 'hies not 
 justify judgmenl for defendant <>n the merits. Lampert v. Ravid, 33. 
 Misc. Rep. 115, 67 N. Y. Supp. 82. 
 
 A judgment of nonsuit, or its equivalent — a dismissal of the com- 
 plaint not upon its merits in this court — is error, if there was suffi- 
 cient evidence to req lire a decision on the merits, tichlcsinger v. Jud, 
 (II App. Div. 453, 70 N. Y. Supp. 616. 
 
 The judgment should simply provide that the action is dismissed, 
 with costs, without prejudice to a new action. Kieffer v. Metropolitan 
 Street Ry. Co., 31 Misc. Rep. 780, 05 N. Y. Supp. 228. 
 
 § 250. Judgment when sum exceeds jurisdiction. — Where 
 the amount found 'due to either party exceeds the sum for 
 which the court is authorized to enter judgment, such party 
 may remit the excess and judgment may be entered for the 
 residue. 
 
 Note to section 250. 
 This section is the same as section 1385 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as section 49, chapter 344, 
 Laws 1857, from which latter section, section 3176 of the Code of Civil 
 Procedure is taken. 
 
 § 25.1. Judgment where defendant liable to arrest. — When 
 a judgment is rendered in a case where the defendant is 
 subject to arrest and imprisonment thereon, it must be so 
 stated in the judgment and entered in the docket. The clerk 
 of the court in the district in which such judgment is en- 
 tered, must in any transcript issued by him, as prescribed in 
 this act, insert the words " defendant liable to execution 
 against his person " and a like note must also be made in the 
 docket of a judgment by a county clerk, where such a tran- 
 script is filed with such clerk. 
 
 Notes to section 251. 
 
 This section is the same as section 1386 of the Consolidation Act 
 (Laws 1882. chap. 410), which is the same as Laws 1857. chapter 344, 
 section 50, down to the words " and entered in the docket." The bal- 
 ance is taken from section 1393 of the said Consolidation Act. 
 
 Adjudication. — The judgment appealed from containing nothing to 
 show that defendant was subject to arrest and imprisonment. — Held,
 
 §251. Judgments. .'545 
 
 that without such adjudication he could not be arrested and impris- 
 oned. Banton v. Torrey, 29 Misc. Rep. 742. 
 
 Conversicn. — Upon recovery by plaintiff in an action for conversion 
 of personal property, he is entitled to have inserted in the judgment 
 a provision for execution against the person of defendant. Searing v. 
 Goodstein, 11 Daly, 230: s. c, 11 Abb. N. C. 450; s. c, 2 Civ. Proc. 
 Rep. 464 j Babcock v. Smith, 47 N. Y. St. Rep. 118. 
 
 Id.; boarding-house-keeper's lien. — An action to enforce a boarding- 
 house-keeper's lien upon property of a boarder which he has clandes- 
 tinely removed is one for conversion of personal property, and the 
 justice is bound to insert in the judgment the liability of the defendant 
 to arrest upon execution. Babcock v. Smith, 47 N. Y. St. Rep. 118, 
 19 N. Y. Supp. 817. 
 
 Damages and costs. — Judgment for plaintiff suing for conversion 
 should be for the damages and such disbursements and fees as the 
 statute allows and such costs as the trial justice in his discretion 
 deems proper within the statutory limit. Wilson v. Vallin, 32 Misc. 
 Rep. 739. 
 
 Docket; entry in, afterward. — A judgment is sufficiently rendered 
 when an entry is made by the justice in his minutes, or a memoranda 
 of it is made on the papers or copies thereof, if made in five days, 
 although no entry is made in the docket until afterward. Risk v. Uffel- 
 man, 7 Misc. Rep. 133. 
 
 Id.; altering. — The alteration of the docket, after judgment, does not 
 affect the validity of the judgment. Dauchy v. Brown, 41 Barb. 555. 
 
 Id.; omission to keep. — The omission by a justice to keep his docket 
 in the manner which the law prescribes does not render a judgment 
 void, as the proceedings before him can still be proved by himself. 
 Baker v. Brintnall, 52 Barb. 188; s. c, 5 Abb. Pr. N. S. 253. 
 
 Duty of judge. — It is the duty of the justice to pass upon the ques- 
 tion of the defendant's liability to an arrest, as definitely as upon that 
 of his liability in the action, and to embody his conclusion in his 
 judgment. 
 
 The judgment must state that the cause is one in which the defend- 
 ant is subject to arrest and imprisonment. Carpentier v. Willett, 18 
 How. Pr. 400: s. c, 6 Bosw. 25, 31 N. Y. 90, 1 Keyes, 510. 28 How. Pr. 
 225. This is a part of his judicial labor and duty. After judgment the 
 justice has no jurisdiction; he is functus officio. Carpentier v. Willett, 
 31 N. Y. 90: s. c. 28 How. Pr. 225, 1 Keyes, 510; People, etc. v. Calla- 
 han, 7 Daly. 434. 
 
 It is the duty of the justice to state in the judgment where an arrest 
 was granted, that it was rendered in a case where the defendant was 
 subject to arrest and imprisonment, and so enter it in his docket; and 
 for his failure to do so, the judgment will, on appeal, be reversed. 
 Coles v. Eannigan, 8 Daly, 43. See also Searing v. Goodstein, 11 Daly, 
 236; s. c, 11 Abb. N. C. 450, 2 Civ. Proc. Rep. 4G4.
 
 340 Judgments. §252. 
 
 Indorsement en summons. — By section 39, it is required that where 
 execution against the person may issue and no verified complaint is 
 served, the summons must be indorsed in the following form: " Plaintiff 
 claims defendant i- liable to arrest and imprisonment in this case." 
 
 Effect of; judgment. — The insertion in a judgment after denial of a 
 motion to vacate an order of arrest obtained in the action, that de- 
 fendant is liable to arrest and imprisonment, is not conclusive upon 
 application for the i ischarge of the imprisoned debtor as to whether 
 the debtor's proceedings are just and fair. Matter of Zeitz, 12 Civ. 
 Proc. Rep. 423. 
 
 Goods sold; arrest for fraud; proof on trial. — In an action for goods 
 sold and delivered upon affidavits that the goods were obtained by false 
 and fraudulent representations, an order of arrest A\as obtained and 
 defendant was arrested. A motion to vacate the order of arrest was 
 denied. Held, that upon the trial, proof by plaintiff of the sale and 
 delivery of the goods and nonpayment therefor, without proof of the 
 fraud averred in the affidavits, was sufficient to entitle him to recover, 
 and to have execution against the person of defendant. Stem v. Mess, 
 12 Daly. 516. 
 
 Nature of the action. — 'The right to a judgment making defendant 
 liable to execution against his person depends upon the nature of the 
 action and not upon the manner of commencing it. Searing v. Good- 
 stein, 04 How. 427. 
 
 Professional misconduct. — The action being brought in this court to 
 recover the sum of $20, deposited by plaintiff with defendant as se- 
 curity for dental work, which the latter agreed to perform and neg- 
 lected and refused to do, and refused to return the money on demand, 
 an inquest was taken and all the allegations proved except the fact 
 that defendant was licensed and authorized to practice his profession, 
 — H<1>1. that the justice was obliged to insert the words, "defendant 
 liable to arrest and imprisonment on execution,'* in the judgment, 
 under Code Civ. Proc, § 2895. subd. 2, as for " misconduct or neglect 
 in a professional employment, fraud, or deceit," the section being made 
 applicable to justice's court by section 3018. Haight v. Martin, 62 
 App. Div. 40iJ, 70 N. Y. Supp. 758. 
 
 § 252. Court may direct verdict; when. — On the trial of an 
 issue of fact, before the court and a jury, the court may, 
 in a proper case, direct that the jury render a verdict as 
 follows : 
 
 1. In favor of the plaintiff or petitioner. 
 
 2. Tn favor of the defendant, respondent, tenant, under- 
 tenant, assignee, receiver, squatter or person holding over.
 
 § 253. Judgments. 347 
 
 3. Where the damages are liquidated, in favor of the 
 plaintiff, for a specif ed sum. 
 
 4. Where the defendant has interposed a counterclaim, 
 and the damages are liquidated, in favor of the defendant 
 for a specified sum. 
 
 5. Where the plaintiff has proved his case, but the dam- 
 ages are uncertain, that the jury render a verdict in favor 
 of the plaintiff and determine the amount. 
 
 0. Where the defendant has interposed a counterclaim 
 and proved his case, and the damages are uncertain, that the 
 jury find a verdict in favor of the defendant and determine 
 the amount. 
 
 Notes to section 252. 
 
 This section is new and gives this court power similar to that pos- 
 sessed by a judge of a court of record, under section 1187 of the Code 
 of Civil Procedure. 
 
 For decisions under this section, see the Annotated Codes of Civil 
 Procedure, § 1187. 
 
 Defects cured by verdict, etc., and by judgment. — See § 721, Code 
 Civ. Proc. 
 
 Jurisdiction. — Under section 1, subdivision 19, this court is given 
 power to direct a verdict, etc. 
 
 § 253. Court may open default. — The court, in a district 
 in which a default is taken, in an action or summary pro- 
 ceeding, may at any time, upon motion made upon such 
 notice as the court may direct, open such default, and set 
 aside, vacate or modify any judgment or final order entered 
 thereon, and set the action or proceeding down for pleading, 
 hearing or trial, as the case may require, upon such terms 
 and conditions as the court may deem proper. 
 
 Notes to section 253. 
 
 This section is taken from the first part of section 1367 of the Con- 
 solidation Act (Laws 1882, chap. 410), which was Laws 1862, chapter 
 484, section 16. The " court " may at any time open the default, upon 
 such notice as it may direct, in either an action or " summary pro- 
 ceeding." This was not formerly so in summary proceedings. See 
 Cochran v. Reich, 20 Misc. Rep. 593, and Boyd v. Milone, 24 Misc. Rep. 
 734.
 
 .1 I DGMENTS. § 253. 
 
 This section vests this court with greater power than that possessed 
 by a court of record, in thai it can " open such default and set aside, 
 vacate, <t modify any judgment or final order entered thereon, at any 
 time," while a court of record can only do this "at any time within 
 one yedr after notice thereof.'" See S 724, Code Civ. Proc. This an- 
 nul- the decision in Feist v. The Third Ave. /.'. A'. ''".. 13 Misc. Rep. 240. 
 where it was held. " The justice of a District Court has no power to 
 open a default alter the Lapse of twenty days from the entry of the 
 judgment. Section 724 of the Code of Civil Procedure, declaring the 
 power of the courts to open defaults within one year, applies only to 
 court- of record." 
 
 Adjournment. — After return day the court has no power in the interim 
 to render judgment as upon defendant's default in answering. Whit- 
 man, etc. v. Hamilton, 27 Misc. Rep. 198, 57 X. Y. Supp. 760. 
 
 Affidavit of merits by the defendant is necessary upon a motion to 
 open a default, and this must be drawn according to Rule 23 of the 
 Supreme Court, which is as follow-: 
 
 "Whenever it -hall he necessary, in any affidavit, to swear to the 
 advice of counsel, the party shall, in addition to what has usually been 
 inserted, swear that he has fully and fairly stated the ease to his coun- 
 sel, and shall give the name and place of residence of such counsel. 
 When an affidavit of merits has once been filed and served, no other 
 shall be necessary. But on making a motion, such service and filing 
 must he shown by affidavit.' 
 
 The affidavit must pursue language of rule. Bank of Utica v. Root, 
 4 Hill, 535. 
 
 An affidavit of merits is required, or service and filing thereof must 
 be shown by affidavit, Thornall v. Turner, 23 Misc. Rep. 363, 51 N. Y. 
 Supp. 214. See also Davis v. Solomon, 25 Misc. Rep. 695. 
 
 An affidavit on which a default on the part of defendant and judgment 
 for plaintiff were opened, which does not state that an affidavit of 
 merits was made or filed, and that manifest injustice has been done, to 
 defendant is fatally defective. Cahill v. Lilienthal, 30 Misc. Rep. -12!). 
 62 X. Y. Supp. 524. 
 
 An order of this court opening a defendant's default will be reversed, 
 if no affidavit of merits has been made or served and no defense proved. 
 Sandowitz v. Duane, 30 Misc. Rep. 630, 62 X. Y. Supp. 744. 
 
 For cases applicable to the sufficiency of an affidavit of merits see 
 
 cases under this rule in Gumming & Gilbert's Official Court Rules, p. 90. 
 
 Appeal from order opening default. — By section 257, ''no appeal lies 
 
 in the first inst<ii>e< from an order opening a default and vacating a 
 
 judgment entered thereon." 
 
 The remedy is by appeal from the judgment, Bcebc v. Nassau Show 
 Case Co., 41 App. Div. 456, 56 N. Y. Supp. 769. See notes to §§ 257 
 and 310.
 
 § 253. Judgments. 349 
 
 Default; what is a. — Where a defendant is personally absent, and 
 his counsel makes an application for a postponement, which is denied, 
 and defendant's counsel remains during the inquest and cross-examines 
 plaintiff's witnesses merely, such cross-examination does not change 
 the inquest or default into a trial. It is a default within the meaning 
 of the statute giving District Court judges power to open defaults. 
 People v. Langbein, 12 Week. Dig. 20, 11 Rep. 746. 
 
 Id.; discretionary. — Opening defaults are discretionary, and there- 
 fore are not reviewable on appeal, except perhaps they exhibit an abuse 
 of discretion. Keller v. Feldman, 49 N. Y. St. Rep. 718; s. c, 29 Abb. 
 N. C. 426. See also Tooker v. Booth, 7 Misc. Rep. 421; Hurry v. Coffin, 
 II Daly, 180. 
 
 Id.; summons not personally served, and defendant not appearing, is 
 not a default, for the defendant was not served. The remedy is not by 
 motion to open the default but by appeal from the judgment as is pro- 
 vided by section 311, which see and notes. 
 
 Denial of motion with leave to renew; judgment entered by default. 
 The remedy is to open the default, and not an appeal from the judg- 
 ment. Edelson v. Epstein. 27 Misc. Rep. 543. 58 N. Y. Supp. 334. 
 
 Dishonest, immoral, and unconscionable defenses. — Where the de- 
 fenses which the defendant seeks to interpose are dishonest, immoral, 
 and unconscionable, the default and judgment should not be opened. 
 The defense should be to the merits. Lovett v. Cowman, 6 Hill, 225; 
 Beach v. Fulton Bank, 3 Wend. 585, 10 Paige, 374, 3 Wend. 561; King 
 v. Merchants 7 Ex. Co., 2 Sandf. 603, 697: Jackson v. Varish, 2 Wend. 
 294. 
 
 Id.; usury, and the statute of limitations are unconscionable defenses, 
 which the court will not allow a defendant to plead in opening a default 
 regularly taken. Wagner v. fickle, 3 Paige. 407; National Fire Ins. Co. 
 v. Sackett, 11 Paige, 669; Quincy v. Foot, 1 Barb. Ch. 496; Watt v. 
 Watt, 2 Barb. Ch. 371; Jackson v. Varish, 2 W T end. 294; Lorett v. 
 Cowman, 6 Hill, 225; Jackson v. Murray, 1 Cow. 158; Utica Ins. Co. 
 v. Scott, 6 Cow. 606; Hallayen v. Golden, 1 Wend, 302. See also 
 Fulton Bank v. Beach, 1 Paige, 429, 3 Wend. 573, 585; Utica Ins. 
 Co. v. Scott, 6 Cow. 606; Law v. Merrills, 6 Wend. 268, 277, 279; 
 Hawes v. Hoyt, 11 How. Pr. 454; Morris v. Slattery, 6 Abb. Pr. 74; 
 Farish v. Corlies, 1 Daly. 274; Toole v. Cook, 16 How. Pr. 454; Sagory 
 v. N. Y. d X. H. R. R. Co., 21 How. Pr. 455; McQueen v. Babcock, 22 
 How. Pr. 229 ; s. c. 13 How. Pr. 268. Leave was refused to add a plea 
 of the statute of limitation. Cox v. Robt, 2 Wils. 253; Coit v. Skinner, 
 7 Cow. 401; Wollcott v. McFarlan, 6 Hill, 227. 
 
 Id.; insolvent discharge cannot be allowed upon opening a default. 
 Dcsobry v. Morange, 18 Johns. 336; Price v. Peters, 15 Abb. Pr. 197. 
 
 Id.; technical objections. — A default will not be opened to enable a 
 party to raise technical objections. Champlin v. Mayor, 3 Paige, 573; 
 Gary v. Gay, 10 Paige, 369; Winship v. Jewett, 1 Barb. Ch. 173.
 
 350 Judgments. §253. 
 
 Id.; penalty or forfeiture. — The defendant will not be allowed any 
 grounds of defense which are in the nature of a penalty or forfeiture. 
 Wagner v. Sickle, 3 Paige, 407. 
 
 Good faith; doubtful defenses. — If the good faith of the defense is 
 doubtful, the default will not be opened. Onderdonk v. Rawlett, 3 Hill, 
 323; Irroy v. Xuthan, 4 E. D. Smith, 58; Peace v. Gleason, 8 Johns. 
 409; Rawson v. Crow, 4 E. D. Smith, 18. 
 
 Excuse for opening default. — A satisfactory excuse must be shown, 
 and also that manifest injustice has been done. A mere affidavit of 
 merits is not sufficient. Jewel v. Heiwsel, C> Daly, 411; Fouler v. Colyer, 
 2 E. D. Smith, 125; Armstrong v. Craig, 18 Barb. 387. 
 
 It is not sufficient to state mere conclusions from facts, but the facts 
 themselves must be stated in such a manner that the court will be 
 authorized to infer from such facts that injustice has been done. Same 
 cases above mentioned; Haughley v. Wilson, 1 Hilt. 259; Sheldon v. 
 Campbell, 5 Hill, 508. 
 
 The manner in which the injustice has been done should be pointed 
 out in the affidavit. Mayer v. Greene, 1 Hilt. 390. 
 
 The neglect must be the result of an honest accident or mistake. 
 Macumber v. Mayor, 17 Abb. Pr. 35. 
 
 A party who seeks to prove that injustice has been done to him 
 should offer proof other than his own affidavit, especially if contra- 
 dicted by plaintiff's affidavits. If he cannot obtain the affidavit of an- 
 other witness, he should at least show that there are witnesses who 
 refuse to give their affidavit, and which, if produced, would reduce or 
 disprove plaintiff's claim. Lent v. Jones, 4 E. D. Smith, 52; Silkman 
 v. Bolger, 4 E. D. Smith, 236; Foster v. Capewell, 1 Hilt. 47. 
 
 Id.; sufficient excuses. — Where the defendant was under the necessity 
 of leaving town, that he had prepared his defense, and had given the 
 matter in charge of a person who was to see his attorney and inform 
 him to attend on the return day of the summons; that the person 
 forgot the message, it was held to be a sufficient excuse. Camp v. 
 Stewart, 2 E. D. Smith, 88. 
 
 Where the defendant delivered the summons to his attorney, but 
 such attorney was under the necessity of leaving the city, and who 
 therefore placed the summons into the hands of another attorney, who 
 promised to appear; that the latter had the summons locked up, and 
 had lost the key and went to the wrong court, and in consequence 
 thereof a judgment w T as taken, this was considered a sufficient excuse. 
 Lent v. Jones, 4 E. D. Smith, 52. 
 
 Where it appears that a defendant really, intends to appear and de- 
 fend an action, and that he has a good defense, and that he failed to 
 appear in consequence of any excusable mistake, the court will relieve 
 him upon proper terms. Seymour v. Elmer, 1 E. I). Smith, 199; s. c, 
 1 Abb. Pr. 412; Bissell v. Dean, 3 E. D. Smith, 172; Gottsberger v.
 
 § '2o'3. Judgments. 351 
 
 Harned, 2 E. D. Smith, 128; Gardner v. Wight, 3 E. D. Smith, 334. 
 Where the acts of the plaintiff are the cause of defendant's not ap- 
 pearing, and a default is taken, this will be a good excuse. Beach v. 
 McCann, 1 Hilt. 250; s. c, 4 Abb. Pr. IS; Beebe v. Roberts, 3 E. D. 
 Smith. 194. 
 
 The manner of serving the summons may be such as to excuse the 
 defendant from appearing in the action, and to entitle him to relief 
 against a judgment entered by default upon such service. 2 Wait's 
 Law and Practice, 68: Carroll v. Goslin, 2 E. D. Smith, 37G. 
 
 Where the plaintiff obtains judgment by default upon a false state- 
 ment that the defendant does not intend to appear and defend, the de- 
 fault will be opened. Beach v. McCann, 1 Hilt. 256. 
 
 Where the summons stated that the defendant was required " to 
 answer the complaint of the plaintiff for professional services," and 
 it appeared that the defendant believed, from the wording of the sum- 
 mons and the facts within his knowledge, that the action was for a 
 claim which he admitted to be due, and for that reason he failed to 
 appear, whereupon the plaintiff recovered judgment for a greater, and 
 for an entirely' different claim, — Held sufficient as an excuse. Bissel 
 v. Dean, 3 E. D. Smith, 172. See also Lent v. Jones, 4 E. D. Smith, 
 52. 
 
 Id.; insufficient excuses. — Engagements of defendant and of his at- 
 torney elsewhere, without stating the nature of those engagements, are 
 not a. sufficient excuse. Mulhern v. Hyde, 3 E. D. Smith, 177. 
 
 Attending to other business is not necessarily a good excuse for 
 opening a default. Fowler v. Collyer, 2 E. D. Smith, 125. 
 
 When merits are not disclosed and clearly apparent, the mere ab- 
 sence of counsel will not be held a sufficient excuse. 6 Abb. Pr. 74; 
 Ward v. Ruckmun, 22 How. Pr. 230. 
 
 Or the misconduct or negligence of the attorney. 4 Abb. Pr. 11. 
 
 Putting the summons in a pocket and forgetting it till the time of 
 its return had passed is not an excuse for a default. Ball v. Mandcr, 
 10 How-. Pr. 468. 
 
 Neither is ignorance of law- proceedings (Mayor, etc., of New York 
 v. Green, 1 Hilt. 303), or forgetting the matter until after judgment 
 is rendered (Ball v. M under, 19 How. Pr. 468; Beebe v. Roberts, 3 E. D. 
 Smith, 194; Mica v. Warte, 1 E. D. Smith, 614), or not hearing the 
 cause called, although present in court. Forster v. Capewell, 1 Hilt. 
 47. Relying upon the promise of another, that the case would be 
 adjourned, is not a sufficient excuse, unless it is shown the party in- 
 tended to deceive. Travis v. Bassett, 3 E. D. Smith. 171. 
 
 Laches. — A motion to open a default with leave to come in and 
 defend, made six years after entry of judgment, and after supple- 
 mentary proceedings to reach property in the hands of a third party 
 have been commenced, where no satisfactory explanation for the delay 
 is given, should be denied. Tooker et al. v. Booth, 7 Misc. Rep. 421.
 
 ; ; 5 2 Judg m e n ts. § 254. 
 
 Not matter of right. — If the judgment was regularly obtained, the 
 defendanl is ool fii t it i . ■» 1. as a matter of right, to have it opened. The 
 
 granting of the motion rots in the discreti >f the court. Farish v. 
 
 Corlies, 1 Daly. 227. It i> a matter of grace and favor, and if either 
 granted or refused, is final and not appealaole. Bard v. Ford, 1 
 NT. Y. 43. 
 
 Defaults and judgments are only opened in furtherance of strict 
 moral justice. Eau >& \. Hoyt, 11 How. Pr. 4.54; Leighton v. Wood, 
 17 Abb. Pr. 177. 
 
 Poor person. — Leave to sue as a poor person does not deprive the 
 court of power to impose costs against such person as a condition upon 
 which a judgment by default will be opened. Newgroske v. Manhattan 
 R. R. Co., 1 \. Y. St. Rep. 302: Elwin v. Routh, 1 Civ. Proc. Rep. 131. 
 
 Order vacating order opening default for noncompliance with condi- 
 tions. — See Schwartz v. Schendel, 23 Misc. Rep. 470, 51 X. Y. Supp. 415. 
 
 Reversal of order setting aside defendant's default. — All proceedings 
 taken thereunder fall with it, and judgment for defendant rendered, 
 pending the appeal from the order, must be reversed. Weinberg v. 
 Frank, 25 Misc. Rep. 788, 50 N. Y. Supp. !)20. 
 
 Statute. — The statute is remedial, and should be liberally construed 
 for the purpose of advancing the remedy to be obtained. 4 Wait's Pr. 
 470; People v. Campbell, 18 Abb. Pr. 1. 
 
 Writ of prohibition will not lie to prevent the exercise of the judge's 
 discretion upon an application to open the default. People v. Lang- 
 bein, 12 Week. Dig. 20; s. c, 11 Rep. 740. 
 
 Summons not personally served, and defendant not appearing, he is 
 allowed to appeal within twenty days after personal service upon him 
 of written notice of entry of judgment. See § 311 and notes. The 
 remedy is not by motion to open the default, for there is no default, 
 as the defendant was not served. 
 
 Sunday. — An order returnable on Sunday is a nullity. Arctic Fire 
 Ins. Co. v. Hicks, 7 Abb. Pr. 204. 
 
 § 254. Motion to set aside verdict or vacate or amend judg- 
 ment. — A motion to set aside the verdict of a jury, and 
 vacate, amend or modify a judgment rendered thereon, or 
 to vacate, amend or modify any judgment rendered upon a 
 trial, by the court, without a jury, may be made upon the 
 exceptions taken at the trial, or because the verdict is for 
 excessive or insufficient damages, or otherwise contrary to 
 the evidence, or contrary to law, provided said motion is 
 made at the close of the trial or within five days from the 
 time the judgment was rendered and in the latter case at
 
 § 254. Judgments. 353 
 
 least two days notice of said motion is given, to the opposing 
 attorney, or party if there be no attorney of record. The 
 judge who presided at the trial may make an order setting 
 aside the verdict or amending, modifying or vacating the 
 judgment and awarding a new trial, and setting the cause 
 down for trial for a time to be specified in the order, as the 
 case may require. 
 
 Notes to section 254. 
 
 This section is taken from section 1367 of the Consolidation Act 
 (Laws 1882, chap. 410), which was Laws 1862, chap. 484, § 16, and 
 is somewhat similar to section 999 of the Code of Civil Procedure. 
 
 Section 1, subdivision 19, "Jurisdiction," gives power to this court 
 to direct a verdict, etc. 
 
 By section 1. subdivision 15, this court has power to grant a stay 
 of proceedings not to exceed five days. 
 
 Application is one of right. — Entry of judgment by the justice before 
 deciding the motion works no injustice, as the application is one of 
 right. Cunningham v. Nassau Elec. R. R. Co., 40 App. Div. 211, 58 
 N. Y. Supp. 22. 
 
 Bias, prejudice, or passion. — A verdict should not be set aside ex- 
 cept where the court can fairly say that the jury were led away from 
 a proper consideration of the evidence by bias, prejudice, or passion, 
 or that they failed to give some of the proof the weight which it obvi- 
 ously deserved. Forst v. Farmer, 21 Misc. Rep. 64. 
 
 Damages; excessive. — -Where the only damages shown to have re- 
 sulted from an eviction were $14 for removing goods, and an excess of 
 rent of $15 a month for five months, which the party was compelled to 
 pay for other premises, a verdict for $150 is clearly excessive. O'Gor- 
 man v. Teets, 20 Misc. Rep. 359; Eschlbach v. Hughes, 7 Misc. Rep. 172. 
 
 Id. ; improper elements of. — A verdict will not be set aside, because 
 of improper elements of damage, evidence as to which was not ob- 
 jected to at the time. Murphy v. Street R. R. Co., 19 Misc. Rep. 194. 
 
 New trial in furtherance of justice. — On appeal, new trial ordered 
 under Curley v. Tomlinson, 5 Daly, 283, on the ground that the ends 
 of justice required it. Jourdan v. Healy, 46 N. Y. St. Rep. 198; s. c. 
 22 Civ. Proc. Rep. 157, 19 X. Y. Supp. 240. See also McLaughlin v. 
 Harriott. 14 Misc. Rep. 343, and cases cited. 
 
 Notice of motion; irregularity; setting aside verdict. — Defendant's 
 moving to set aside the verdict immediately after it is brought in, 
 instead of giving the five days' notice prescribed by statute, is merely 
 an irregularity, waived by plaintiff's proceedings to the argument 
 without objection. Cunningham v. Nassau Elec. R. R. Co., 40 App. Div. 
 211, 58 X. Y. Supp! 22. 
 
 23
 
 354 Judgments. §§ 255, 256. 
 
 Id.; notice of motion; waiver of. — The statutory requirement of not 
 less than five days 1 notice of motion to sel aside a verdict may be 
 waived, and is so waived by failure to object on the ground of in- 
 sufficiency of notice when the motion is made. Krakower v. Davis, 20 
 Misc. Rep. 350. 
 
 Where a verdict is sei aside, if the appellant is entitled to the five 
 days" notice prescribed in section 1309 of the Charter, the right to 
 notice is waived if the objection to its omission is not made at the 
 time. Scharmann & Sons v. Bard, (i»> App. Div. 449, 69 X. Y. Supp. 
 1033. 
 
 Order setting the case down, etc. — An order of this court, vacating 
 and setting aside a judgment against plaintiff absolutely, without set- 
 ting the ease down for pleading, hearing, or trial. — Held unauthor- 
 ized. Woldock v. Tombarelli, 32 Misc. Rep. 694, 66 X. Y. Supp. 504. 
 
 For further authorities under this section, see notes to § 999, Code 
 Civ. Proc. 
 
 § 255. New trial; fraud or newly discovered evidence. — The 
 court may also in a proper case, grant or deny a motion for 
 a new trial on the ground of fraud or newly discovered 
 evidence, and from the order an appeal shall lie as from a 
 judgment in said court. 
 
 Notes to section 255. 
 
 This section is new. 
 
 By section 1. " Jurisdiction,'' subdivision 19, this court is given 
 power to "grunt a new trial, open a default, or in a proper case grant 
 a new trial on the ground of fraud or newly-discovered evidence.'' 
 That section does not, by its terms, give the court power to deny a 
 new trial, the words "or deny" being omitted. This jurisdiction or 
 power is however given by this section by express words "grant or 
 deny." 
 
 In Robb v. Osgoodby, 20 Misc. Rep. G22, it was held that, under 
 Laws 1896, chap. 748, amending the Consolidation Act, § 13G7, an 
 appeal from an order granting a new trial was authorized, but that 
 it did not authorize an appeal from an order denying a motion for a 
 new trial. 
 
 By section 1. subdivision 15, this court has power to grant a stay 
 of proceedings not to exceed five days. 
 
 For appeals generally, see tit. IX, "Appeals," §§ 310 to 327. 
 
 § 256. Court may impose conditions, et cetera. — The court 
 may award such costs, not exceeding ten dollars, for opening
 
 §257. Judgments. 355 
 
 any default, or vacating, amending, modifying or setting 
 aside any judgment against any party to the action as in its 
 discretion shall be just and proper. It may as a condition 
 for opening any default, or vacating, amending, modifying 
 or setting aside any judgment, order any defendant in de- 
 fault to deposit the amount of the judgment with the clerk 
 of the court or to give an undertaking with sufficient sureties 
 to the effect that such defendant will not sell, assign, or 
 transfer any of his property with intent to hinder, delay or 
 defraud the plaintiff in the collection of his claim or demand, 
 if the plaintiff shall prevail on the trial of such action, and 
 that such defendant or his sureties will pay the amount of 
 any judgment recovered against such defendant in such 
 action. 
 
 Notes to section 256. 
 
 This section is taken from section 1307 of the Consolidation Act 
 (Laws 1882, chap. 410), which was Laws 1862, chap. 484, § 16. See 
 § 253, " Court may open default," and notes. 
 
 Compliance with order. — Where a default is opened upon terms, 
 the defendant must comply with the terms or he will lose the benefit 
 of the order. Mitchell v. Merikel, 1 Hilt. 142. 
 
 As to feeling aggrieved a t the terms, noncompliance therewith, and 
 appeal, see Witowski v. Maisner, 21 Misc. Rep. 487; s. c, 47 N. Y. 
 Supp. 500. 
 
 Referee's fees. — A justice of this court has no power however, 
 upon granting a motion to open a default, to order a judgment in 
 favor of the defendant for the fees of a referee before whom the par- 
 ties were directed by the justice to appear for an examination upon the 
 disputed question of facts as to whether the summons had been served, 
 and the consent of the parties that the unsuccessful one should pay 
 the referee's fees confers no jurisdiction. Xzcrlip v. Baier et al., 21 
 Misc. Rep. 331. 
 
 This court has no power to appoint a referee on consent. Barber v. 
 Lane, 60 App. Div. 87. 
 
 § 257. An appeal shall lie from an order granting or 
 denying a motion, made as provided in the last four sections; 
 as from a judgment; except, that no appeal shall lie in the 
 first instance from an order opening a default and vacating 
 a judgment entered thereon.
 
 356 Judgments. §257. 
 
 Notes to section 257. 
 
 Tliis section ia now, and i-> omitted from the contents or enumeration 
 of sections in title VII, article 1. which states only sections 248 to 
 256. See note to art. I, "Judgments." 
 
 As to appeals generally, see tit. IX, "Appeals," § 310, etc. 
 
 Appeal from order opening a default. — This section declares that 
 an appeal shall lie from an order granting or denying a motion made 
 as provided in the Last four sections, as from a judgment. Thi.; in- 
 cludes section 253, " Court may open default." Section 257 continues, 
 "except that no appeal shall lie in the first instance from an order 
 " opening *' a default," etc. Thus, after including section 253 by the pro- 
 visions of the first half of section 257, it is excepted and excluded by 
 the other half of the same section. Assuming that the last declara- 
 tion, or provision, controls, the situation is that, in three of the sec- 
 tions, sections 253, 254, and 255, an appeal from an order may be 
 taken directly from the order, as if the order was a judgment, or as 
 if the appeal was from the judgment, but, in the case of an order 
 " opening a default," no appeal can be taken directly from the order 
 in the first instance, but the appeal must be taken from the judgment 
 entered, which, of course, must contain the order. It must be observed 
 that this provision does not apply to an order denying a motion to 
 open a default. Laws 1896, chap. 748, amending the Consolidation 
 Act, § 1367, authorized an appeal from an order granting a new trial, 
 but did not authorize an appeal from an order denying a motion for 
 a new trial; a motion to dismiss the appeal was therefore granted. 
 Nobb v. Osgocdby. 20 Misc. Rep. 622. 
 
 Appeal from judgment. — -No appeal lies from an order of this court 
 denying a motion to open a default ; the remedy is by appeal from 
 the judgment. Beebe v. Nassau Show Case Co., 41 App. Div. 456, 58 
 N. Y. Supp. 769. 
 
 Noncompliance with terms of order opening default. — Where the 
 defendant's default is opened, by an order, upon terms by which he con- 
 siders himself aggrieved, he must, in order to procure a review of the 
 terms, appeal from the order, as his appeal from the judgment, after 
 having failed to comply with the terms, is ineffectual for such a review. 
 Witowski v. Maisner, 21 Misc. Rep. 487; s. c. 47 X. Y. Supp. 599. 
 
 On reversal of an order setting aside defendant's default, all pro- 
 ceedings taken thereunder fall, and judgment for defendant rendered 
 pending the appeal from the order must be reversed. Weinberg v. 
 Frank, 25 Misc. Rep. 788, 56 X T . Y. Supp. 920. 
 
 Note. — There are no sections from 257 to 260.
 
 200. Execution. 357 
 
 ARTICLE II. 
 
 Execution. 
 Section 2G0. How issued. 
 
 261. Transcript, how to issue; judgment of supreme court; 
 
 when docketed. 
 2(12. When satisfaction of judgment presumed. 
 203. Real property bound for ten years by a judgment thus 
 docketed. 
 
 264. Judgment, and effect of, against defendants jointly in- 
 
 debted when all are not served. 
 
 265. Execution; indorsement thereupon. 
 
 266. How collected. 
 
 267. Judgment, how docketed; effect of docketing, 
 2GS. Action against joint debtors. 
 
 269. Docketing judgment in another county. 
 
 270. Judgment against marshal. 
 
 271. Execution; requisites. 
 
 272. Arrest. 
 
 273. Removal of execution. 
 
 274. Judgment in favor of wage-earner. 
 
 275. Arrest and sale of property limited. 
 270. Marshal; when liable to execution. 
 
 277. Return of execution and satisfaction of judgment. 
 
 Note. — The word "Removal,"' in above contents, section 273, should 
 be " Renewal." See § 273. 
 
 §260. How issued. — An execution may be issued on a 
 judgment of the municipal court at the option of the judg- 
 ment creditor, either by the county clerk directed to the 
 sheriff as prescribed by law, after the filing of a transcript. 
 of judgment, as provided in the next section, or by the clerk 
 of the municipal court in the district in which the judgment 
 was entered, within six years thereafter, directed to a mar- 
 shal. But no execution shall issue out of the municipal court 
 after a transcript has been issued, and no transcript shall be 
 issued while an execution of the municipal court remains 
 unreturned, except a transcript showing that a judgment 
 has been vacated, set aside or modified. 
 
 Notes to section 260. 
 
 This section is taken from section 1392 of the Consolidation Act 
 (Laws 1882, chap. 410), by which a judgment creditor had his option
 
 358 Execution. §261. 
 
 after the filing of a transcript to issue execution either to the sheriff 
 or to a marshal. By the presen) section no execution can be issued to 
 a marshal after the filing <>f a transcript, and no transcript can be 
 issued by the clerk while a marshal has an execution. 
 
 Section 1392 of the Consolidation Act ( Laws 1882, chap. 410 1 did not 
 contain any time within which an execution could be issued. Provision 
 is now made that it may he issued within six years after the judgment 
 was entered in accordance with the decision in Diffenbach v. Roch, 11- 
 N. Y. 621 -, Herman v. Stalp, 24 X. Y. St. Rep. 4U. And see Herder v. 
 Qollyer, 6 X. V. Supp. 513. 
 
 Action to foreclose a lien upon a chattel. — Execution againsl the 
 person in such an action shall not issue if the provisions of tin-, act re- 
 lating to the indorsement upon the summons (s§ 38, 39) have not been 
 complied with, and the marshal must make a return that the property 
 is not available for levy and execution. See § 140 of this ait. 
 
 Execution issued on the day of, but after the debtor's death held 
 void; the law takes notice of fractions of a day when there are con- 
 flicting rights. — See § 1380, Code Civ. Proc. ; Wallace v. Swi/nton, 04 
 X'. Y. 188; Broom's Legal Maxim's 134; 1'rcntiss v. Bowden, 8 Misc. 
 Rep. 420, 28 X T . Y. Supp. 666. See also Douglass v. tieifert, 18 Misc. 
 Rep. 188. 
 
 Id. — Upon judgment for defendant when plaintiff is an executor or 
 administrator. See § 156. 
 
 Id.— For return of property, see § 118, this act. 
 
 Mechanic's lien actions. — Executions in such actions are provided for 
 by section 3408, Code of Civil Procedure. 
 
 Stipulation to issue. — An attorney cannot issue an execution in this 
 court under a stipulation ; the clerk must do so, otherwise it io invalid. 
 Thompson v. Jenks, 2 Abb. Pr. N. S. 229. 
 
 Taking oysters out of the Harlem river. — Executions upon recovery 
 in an action for violations of law in this respect are specially provided 
 for by section 770 of the Consolidation Act (Laws 1882, chap. 410). 
 
 § 261. Transcript how to issue; judgment of supreme court, 
 when docketed. — The clerk of the court in the district in 
 which a judgment is rendered must, upon the application 
 of the party in whose favor the judgment was rendered, de- 
 liver to him a transcript of the judgment, except as provided 
 in the last section. The county clerk of the county in which 
 the judgment was rendered, must, upon the presentation of 
 the transcript and payment of the fees therefor, indorse 
 thereupon the date of its receipt, file it in his office, and 
 docket the judgment, as of the time of the receipt of the
 
 § 201. Execution. 359 
 
 transcript, in a book kept by him for that purpose, as pre- 
 scribed by law, and if the judgment be one which is rendered 
 for the recovery of a chattel which has been delivered to the 
 unsuccessful party, or for the value thereof, must also enter 
 in the docket the particulars of the judgment as stated in 
 the transcript. Thenceforth the judgment is deemed a judg- 
 ment of the supreme court and may be enforced accordingly. 
 But nothing in this section shall be construed to prevent 
 the municipal court from vacating, sotting aside or modi- 
 fying the judgment as hereinbefore provided. 
 
 Notes to section 261. 
 
 This section is taken from section 1392 of the Consolidation Act 
 (Laws 1882, chap. 410), which was the same as section 3019, Code of 
 Civil Procedure. 
 
 The change is made to the Supreme Court on account of the abolition 
 of the Court of Common Pleas. Section 1392 of the Consolidation Act 
 made an exception as to the delivery of a transcript in an action to 
 recover a chattel, which provision was embodied in section 1394 of 
 said act; it is now contained in this section, therefore, obviating the 
 necessity of a separate section. 
 
 Amendment of judgment after filing transcript. — The court may 
 amend a judgment, after filing the transcript thereof with the county 
 clerk, by correcting first name of defendant, which was fictitious, and 
 so stated in the summons. Hilton v. Sinsheimer, 5 Civ. Proc. Rep. 355. 
 
 Effect of filing transcript. — The filing of a transcript of a judgment 
 does not make it a judgment of the Common Pleas, now Supreme Court, 
 for any other purpose than for its enforcement. Edel v. McCone, 31 
 N. Y. St. Rep. 553. 
 
 Irregularity. — Where an execution issued upon a judgment docketed 
 in the county clerk's office was issued by the plaintiff's attorney alone, 
 and not by the county clerk, — Held, that tne irregularities in the form 
 and issuance of the execution were not sufficient to deprive the court 
 of jurisdiction to entertain supplementary proceedings founded thereon. 
 Bareither v. Brosche, 19 Civ. Proc. Rep. 447. 
 
 Mechanic's lien actions. — Transcripts of judgment in these actions 
 are provided for by section 3410, Code of Civil Procedure. 
 
 Plaintiff only has right to file transcript.— A judgment debtor has 
 no right to file a transcript of a judgment recovered against him with 
 the county clerk, so as to make an application to have such judgment 
 set off against another in his favor. The Code provides that the clerk 
 shall issue a transcript of a judgment to the party in whose favor the 
 judgment was rendered; the transcript so issued, and none other, is
 
 360 Execution. §§262,263. 
 
 the only one to be filed with the county clerk. Cunningham v. Eiseman, 
 4 Civ. Proc. Rep. 220. 
 
 62. When satisfaction of judgment presumed. — A final 
 judgment for a stun of money, or directing the payment of 
 a sum of money, heretofore or hereafter rendered, and 
 docketed in the office of a county clerk as prescribed in this 
 article, is presumed to be paid and satisfied after the expira- 
 tion of twenty years from the time, when the party recover- 
 ing it was first entitled to a mandate to enforce it. This 
 presumption is conclusive, except as against a person who, 
 within twenty years from that time, makes a payment or 
 acknowledges an indebtedness of some part of the amount 
 recovered by the judgment or decree, or his heir or personal 
 representative, or a person whom he otherwise represents. 
 Such an acknowledgment must be in writing, and signed by 
 the person to be charged thereby. 
 
 Note to section 262. 
 
 This section is taken from section 376 of the Code of Civil Procedure. 
 It and the following one were made necessary in consequence of the 
 decision in Dieffenbach v. Roch, 112 N. Y. 621, holding that prior to 1894 
 a judgment of this court, even though docketed by the filing of a tran- 
 script, was only ^ood for six years. By chapter 307, Laws 1894, such 
 judgments, when docketed, were made good for twenty years. See also- 
 §§ 376, 382, and 3017, Code Civ. Proc, and the case of Raphael v. 
 Mencke, 28 App. Div. 91, holding that chapter 307, Laws 1894, amending 
 sections .",76, 382, and 3017 of said Code made the twenty years statute 
 of limitations, with its persumption of payment, apply to judgments in 
 this and justices' courts, the same as to judgments of courts of record. 
 
 § 263. Real property bound for ten years by a judgment thus 
 docketed* — - Except as otherwise specially prescribed by law, 
 a judgment, hereinafter rendered, which is docketed in a 
 county clerk's office, as prescribed in this article where it 
 is for the sum of twenty-five dollars or more, binds, and is a 
 charge upon, for ten years after the filing the judgment roll, 
 and no longer, the real property and chattels real, in that 
 county, which the judgment debtor has, at the time of so 
 docketing it, or which he acquires at any time afterwards,, 
 and within ten years.
 
 § 264. Execution. 361 
 
 Notes to section 263. 
 
 This section is taken from section 1251 of the Code of Civil Pro- 
 cedure, and the latter part of section 1392 of the Consolidation Act 
 (Laws 1882, chap. 410), with the words, "where it is for the sum of 
 twenty-five dollars or more," added. See note to § 202. 
 
 Section 1403 of the Consolidation Act (Laws 1882, chap. 410) made 
 section 3043 of the Code of Civil Procedure, relating to justices' courts, 
 applicable to this court, and it is also included in section 2G3. 
 
 Amount less than $25. — A transcript of a judgment, though for less 
 than $25, may be docketed with the county clerk, and becomes a judg- 
 ment of the County Court, which can be enforced like other judgments, 
 except it is not a lien on real property. Candec v. (Jundclslicimer, 8 
 Abb. Pr. 43.K 
 
 Judgments against persons sued by a fictitious name. — By chap- 
 ter 318, Laws 15)02, section 1251, Code of Civil Procedure, was amended 
 to take effect the same day this act takes effect, viz.: September 1, 
 1902, by adding thereto alter the words, " and within ten years," as 
 follows: "Except that any judgment rendered, having the name, or 
 any part of the name, of the judgment debtor designated as fictitious, 
 shall not bind, or be a charge upon the real property or chattels 
 real of any person. A judgment having the name, or any part of the 
 name, of a judgment debtor designated as fictitious, may be amended 
 at any time within ten years after the docketing thereof, by inserting 
 the true name of said judgment debtor, upon such notice to him as the 
 court may direct, and such judgment shall thereafter be a lien upon 
 the real property and chattels real, which the judgment debtor then 
 has, or may thereafter acquire, but not for a longer period than ten 
 years. after the original docketing of such judgment." 
 
 § 264. Judgment, and effect of, against defendants jointly 
 indebted when all are not served — . In an action, wherein the 
 complaint demands judgment for a sum of money against 
 two or more defendants, alleged to be jointly indebted upon 
 contract, if the summons is served upon one or more, but 
 not all of the defendants, the plaintiff may proceed against 
 the defendant or defendants, upon whom it is served unless 
 the court otherwise directs; and, if he recovers final judg- 
 ment, it may be taken against all the defendants thus jointly 
 indebted. Such a judgment is conclusive evidence of the 
 liability of each defendant upon whom the summons was 
 personally served or who appeared in the action, and as 
 against a defendant not summoned, it is evidence only of the
 
 362 Execution. §§ 265, 2G6. 
 
 extent of the plaintiff's demand, after the liability of that 
 defendant lias been established, by other evidence. 
 
 Notes to section 264. 
 This section, together with sections 265, 266, 267, and 268, applicable 
 to courts of record, are taken from section-- 1394, 1395, and 1396 of 
 
 the Consolidation Ac: (Laws 1882, chap. 410), and from the sections 
 of the Code of Civil Procedure therein referred to. It combines sections 
 1932 and 1933 of said Code, applicable to courts of record. 
 
 Parties, who may be joined. Parties-plaintiff, or defendant. — See 
 § 42. 
 
 Application of this article to defendants jointly liable. — (There is no 
 "•article." it is title II, "Actions; Summons; Parties). See § 43. 
 
 Partners. — Judgment in an action against copartners is properly 
 rendered against all of them although they were not all served with 
 summons. Steiger v. Theiss, 1!) ^\Iisc. Pep. 170. See also Kramer v. 
 Schatzkin, 27 Misc. Rep. 206, 57 N. Y. Supp. 803, 29 Civ. Proc. Rep. 86. 
 
 § 2G5. Execution; indorsement thereupon. — An execution 
 or a transcript issued upon such a judgment, as prescribed 
 in the foregoing- section, must be issued, in form, against all 
 the defendants; and the clerk of the court in the district 
 where such judgment is entered, must indorse thereupon the 
 name of each defendant who was not summoned. If the 
 execution be issued to the sheriff upon a judgment docketed 
 in the office of the county clerk there must be indorsed 
 thereupon a direction to the sheriff, containing the name of 
 each defendant who was not summoned, and restricting the 
 enforcement of the execution, as prescribed in the next 
 section. 
 
 Note to section 265. 
 
 This section is taken from section 1395 of the Consolidation Act 
 (Laws 1882, chap. 410), which made section 1934 of the Code of Civil 
 Procedure applicable to this court, substituting the duty of the attorney 
 for the judgment debtor, to the clerk of the court, to indorse on the 
 judgment the name of each defendant not summoned. See also notes to 
 § 264. 
 
 § 266. How collected. — An execution against the person, 
 issued upon a judgment, as prescribed in section 264 of this 
 act, shall not be enforced against the person of a defendant,
 
 §§ 267, 268. Execution. 363 
 
 whose name is indorsed thereupon, as not summoned, as pre- 
 scribed in the foregoing section. An execution against 
 property, issued upon such a judgment, shall not be levied 
 upon the sole property of a defendant not summoned; but it 
 may be collected out of personal property, owned by him, 
 jointly with the other defendants, who were summoned, or 
 with any of them; and out of the real and personal property 
 of the latter, or any of them. 
 
 Notes to section 266. 
 
 This section is taken from section 1395 of the Consolidation Act 
 (Laws 1882, chap. 410), which made section 1935 of the Code of Civil 
 Procedure applicable to this court, and is substantially the same as 
 the latter. 
 
 See also notes to § 264. 
 
 § 267. Judgment how docketed; effect of docketing. — Where 
 a judgment has been taken, as prescribed in section two 
 hundred and sixty-four of this act, the clerk of the court in 
 the district in which the judgment is entered, must write 
 upon his docket, and the county clerk with whom a transcript 
 is filed, as provided in this act, must write upon his docket, 
 opposite or under the name of each defendant, upon whom 
 the summons was not served, the words " not summoned." 
 The judgment does not, by virtue of its being docketed, bind 
 any real property, or chattel real, owned by such a defend- 
 ant. But this section does not affect the plaintiff's right of 
 action, to charge the judgment upon any real property. 
 
 Notes to section 267. 
 
 This section is taken from sections 1398 and 1400 of the Consolidation 
 Act (Laws 1882, chap. 410), the former of which made section 1936 
 of the Code of Civil Procedure applicable to this court, adding the 
 provision requiring the clerk of this court to docket the judgment. 
 
 See also notes to § 264. 
 
 § 268. Action against joint debtors. — After the recovery 
 of a judgment against joint debtors, as prescribed in section 
 two hundred and sixty-four of this act, an action may be 
 maintained by the judgment creditor, against one or more
 
 004- Execution. § 269. 
 
 of the defendants who were not summoned in the original 
 action, to procure a judgment charging his or their property 
 with the sum remaining unpaid upon the original judgment. 
 
 Notes to section 268. 
 
 This section is taken from section 1396 of the Consolidation Act 
 (Laws L882, chap. 410), which made section 1937 of the Code of Civil 
 Procedure applicable to this court, and this section is substantially the 
 same as the latter. 
 
 See also notes to § 2G4. 
 
 Action in any court. — The defendant not summoned may be sued in 
 any court having jurisdiction of the action. Johnson v. Smith, 14 Abb. 
 Pr. 421 ; F ride man v. Kennedy, 4 Abb. N. S. 417. 
 
 Judgment; partners. — A summons issued in 1892 against defendant 
 and his partner was served on the latter alone, and judgment was 
 taken against both, and against the partner personally, and in 1898, 
 before the statute expired, an action was brought against the partner 
 as sole defendant, under a second judgment taken against him. Held, in 
 an action thereafter against defendant alone, to charge him under 
 the Code of Civil Procedure, section 1937, that he could not avail him- 
 self of the statute under section 1939, since that defense did not exist 
 when the first action was broug-it, the provisions of the Code having 
 been made applicable to this court by section 1396 of the Consolidation 
 Act, and section 1369 of the Charter of 1897. Kramer v. Schatzkin, 
 27 Misc. Rep. 206, 57 N. Y. Supp. 803, 29 Civ. Proc. Rep. 86. 
 
 § 269. Docketing judgment in another county. — The county 
 clerk with whom a transcript is filed, as prescribed in this 
 act, must furnish to any person applying therefor, and paying 
 the fees allowed by law, one or more transcripts of the docket 
 of the judgment, attested by his signature. A county clerk 
 to whom such a transcript is presented, must, upon payment 
 of the fees therefor, immediately file it, and docket the 
 judgment in the appropriate docket-book kept in his office, 
 in like manner as the judgment was docketed by the first 
 county clerk. The judgment, when docketed, as prescribed 
 in this section, has the like effect, with respect to the enforce- 
 ment thereof, or any proceedings thereunder, or by virtue 
 thereof, in the county where it was so docketed, as it has in 
 the county in which it was docketed upon the transcript from 
 the municipal court.
 
 §§ 270, 271. Execution. 365 
 
 Notes to section 269. 
 
 This section is taken from, and is substantially the same as section 
 1397 of the Consolidation Act (Laws 1882, chap. 410), which was the 
 same as section 3022 of the Code of Civil Procedure. 
 
 Transcript. — To make the judgment enforceable in any other county 
 within the city, a transcript must first be docketed in the county in 
 which it was rendered, and a transcript of the latter judgment be 
 filed and docketed in the county where it is going to be enforced, the 
 clerk of the last-mentioned county issuing the execution. Matter of 
 Stumpp, 32 Misc. Eep. 41, 06 N. Y. Supp. 172. 
 
 § 270. Judgment against marshal. — Whenever any judg- 
 ment shall be rendered against any city marshal or his 
 sureties, in any district of the municipal court, a transcript 
 thereof shall be filed with the county clerk in the county 
 wherein such district of the municipal court is situated, and 
 from the filing of such transcript such judgment shall be 
 deemed to be a judgment of the supreme court and shall be 
 enforced in the same manner as other judgments of that 
 court. And no execution on such judgment shall issue to 
 any other officer, than the sheriff, and all such executions 
 must be made returnable to the county clerk 
 
 Notes to section 270. 
 
 This section is taken from section 1398 of the Consolidation Act 
 (Laws 1882, chap. 410). 
 The word "' district " means judicial district. 
 Return of execution. — (See Bartels v. Cunningham, 8 Abb. N. C. 226. 
 
 § 271. Execution; requisites. — The execution, when issued 
 out of the municipal court, must be directed to a marshal, 
 subscribed by the clerk of the court, in the district in which 
 the judgment was rendered, or by his successor in office, and 
 must bear date of the day of its delivery to the officer to be 
 executed. It must intelligibly refer to the judgment by 
 stating the names of the parties, the district where, and the 
 time when rendered, and the amount of the judgment, and 
 if less than the whole is due, the true amount due thereon; 
 it must require of the marshal, substantially as follows: 
 
 1. If it be a case where the defendant cannot be arrested, 
 it must direct the officer to collect the amount of the judg-
 
 3G6 Execution. § 271. 
 
 mentj or the amount duo thereon, out of the personal prop- 
 erty of the debtor, and to pay the same to the party entitled 
 thereto. 
 
 2. If it be a case where the defendant may be arrested, 
 in addition to the foregoing, it may direct the officer, if 
 sufficient property of the defendant liable to execution can- 
 not be found to satisfy the judgment, that lie arrest the de- 
 fendant and commit him to the jail of the county wherein 
 the district in which the judgment was entered is situate, 
 until he pay the judgment or be discharged accordinc; to 
 law. 
 
 3. It must further, in all cases, direct the officer to make 
 return of the execution and a certificate thereon showing 
 the manner in which he had executed the same, in twenty 
 days from the time of his receipt thereof, to the court from 
 which the execution issued. 
 
 Notes to section 271. 
 
 This section is substantially the same as section 1399 of the Conr 
 solidation Act (Laws 1882, chap. 410), which was the same as section 
 52, chapter 344, Laws 1857. 
 
 Section 1403 of the Consolidation Act (Laws 1882, chap. 410) made 
 section 3024 of the Code of Civil Procedure, relating to justices' 
 courts, applicable to this court. The latter section prescribes the 
 time within which an execution may be issued by the justice, and 
 is substantially covered by the present section, subdivision 3. 
 
 See also § 272, and notes. 
 
 Attachment. — As to execution where property has been attached, see 
 § 91. 
 
 Causes of action united; arrest. — Where a cause of action for which 
 a defendant might be arrested is united with a cause of action for 
 which he cannot be arrested, an execution against the person of the 
 defendant cannot be issued vipon the judgment. See § 1 40, subd. G. 
 
 Description. — The debtor must be correctly described by the judg- 
 ment and execution. The marshal can only execute the process against 
 the property of the person named therein. It is not enough that the 
 right person be made to pay the debt. Farnham v. Hildreth, 32 Barb. 
 277. 
 
 Id.; execution against the person. — An execution against the body 
 of the defendant must state in the judgment and the docket that the 
 case is one in which the defendant is subject to arrest and imprisonment.
 
 § 272. Execution. 307 
 
 Carpentier v. WiMett, IS How. Pr. 400; s. c, G Bosw. 25; less fully 
 reported, s. c., 31 N. Y. 90, atfg. G Bosw. 25, 28 How. 225. 
 
 Exemption of property from levy and sale under execution. See 
 §§ 1389 to 1404, inclusive. Code Civ. Proc. 
 
 Levy upon personal property, when superseded by appeal. — See § 1311, 
 Code Civ. Proe., and notes to § 31G. 
 
 Marshal's return is presumptive evidence in an action against sure- 
 ties. See § 127. 
 
 Mechanic's lien actions. — Execution may be issued upon a judgment 
 obtained in an action to enforce a mechanic's lien against real property 
 in a court not of record, which shall direct the officer to sell the title 
 and interest of the owner in the premises, upon which the lien set forth 
 in the complaint existed at the time of filing the notice of lien. Code 
 Civ. Proc, § 3048. 
 
 Replevin.— Contents of executions in action in replevin. See § 124 
 and notes. 
 
 Sale on execution. — When and how conducted. See § 1384, Code Civ. 
 
 Proc. 
 
 Id.; notice of, penalty for tearing down, or defacing.— ! 1385, Code 
 
 Civ. Proc. 
 
 Id.; purchases on such sales by certain officers prohibited. — § 1387, 
 Code Civ. Proc. 
 
 Id.; validity of sale when not affected by marshal's default.— 
 § 1386, Code Civ. Proc. 
 
 Trespass of marshal; judgment creditor.— A judgment creditor is 
 not liable for the trespass of the marshal in making a wrongful levy, 
 unless he aided, abetted, directed, or took some part therein. Fischer v. 
 Hetherington, 11 Misc. Kep. 575. 
 
 § 272. Arrest. — When the execution directs the arrest of 
 the defendant for want of sufficient personal property, if 
 there be not sufficient subject to levy known to the officer, 
 or if upon demand by the officer of the defendant, he fail 
 to produce sufficient property, the officer may, without fur- 
 ther delay, arrest the defendant; when arrested, the de- 
 fendant must be conveyed to the common jail of the county, 
 wherein the district where the judgment is entered is situate, 
 and there kept in custody until the execution, with costs, 
 be paid, or be discharged by due course of law. 
 
 Notes to section 272. 
 
 This section is substantially the same as section 1401 of the Con- 
 solidation Act (Laws 1882. chap. 410), which was the same as section 
 54, chapter 344, Laws 1857.
 
 368 Execution. §§ 273, 274. 
 
 See also §§ 260, 271, and notes. 
 
 Action to foreclose a lien upon a chattel. — The marshal must make 
 a return on the execution to the clerk that the property is not available 
 for levy and execution before execution against the person can issue. 
 § 140. 
 
 § 273. Renewal of execution. — An execution may, at the 
 request of the judgment creditor, be renewed before the 
 expiration of the twenty days by the word " renewal " being 
 written thereon, with the date thereon, subscribed by the 
 clerk of the court or his assistant; such renewal has the same 
 effect as an original issue, and may be repeated as often as 
 may be necessary. If an execution be returned unsatisfied, 
 others may be issued on the like request from time to time 
 until the judgment be satisfied. 
 
 Notes to section 273. 
 
 This section is substantially the same as section 1402 of the Con- 
 solidation Act (Laws 1882, chap. 410). which was the same as section 
 55, chapter 344, Laws 1 s .1 7 . 
 
 Section 1403 of the Consolidation Act made section 3027 of the 
 Code of Civil Procedure, relating to justices' courts, applicable to this 
 court, and it is also included in section 273. 
 
 § 274. Judgment in favor of wage earners. — In an action, 
 brought in the municipal court, by a journeyman, laborer, 
 or other employee whose employment answered to the gen- 
 eral description of wage earner, for services rendered or 
 wages earned in such capacity, if the plaintiff recovers a 
 judgment for a sum not exceeding fifty dollars, exclusive of 
 costs, and the action shall have been brought within one 
 month after the cause of action accrued, no property of the 
 defendant is exempt from levy and sale by virtue of an 
 execution against property, issued thereupon; and, if such 
 an execution is returned wholly or partly unsatisfied, the 
 clerk must, upon the application of the plaintiff, issue an 
 execution against the person of the defendant for the sum 
 remaining uncollected, if the indorsement required by this 
 act to the effect that defendant was liable to arrest was com- 
 plied with. A defendant arrested by virtue of an execution
 
 '§ 274. Execution. 369 
 
 so issued against his person, must be actually confined in the 
 jail, and is not entitled to the liberties thereof; but he must 
 be discharged after having been so confined for fifteen days. 
 After his discharge another execution against his person 
 cannot be issued upon the judgment, but the judgment 
 creditor may enforce the judgment against property as if the 
 execution, from which the judgment debtor is discharged, 
 has been returned, without his being taken. 
 
 Notes to section 274. 
 
 This section is taken from section 1405 of the Consolidation Act 
 (Laws 1882, chap. 410), which was the same as section 3321 of the 
 Code of Civil Procedure. 
 
 The Commissioners of Revision, in a note to this section, say that it 
 ■" is substantially the same as section 1405 of the Consolidation Act, 
 the only change being that the words ' if the indorsement required by 
 this act to the effect that defendant was liable to arrest was complied 
 with,' are added after the words ' remaining uncollected.' " 
 
 A comparison will show that this is incorrect. Section 1405 related 
 only to a "working woman,'' as expressed in the title, and in the 
 text to "a female to recover for services performed by her," whereas 
 by section 274 the expression is " a journeyman, laborer, or other em- 
 ployee whose employment answered to the general description of wage- 
 earner for services rendered, or wages earned in such capacity." No 
 such words, or expression, are found in section 1405, and it is obvious 
 that male as well as female have been included. The section then pro- 
 ceeds to require not only that a judgment for a sum not exceeding 
 $50 shall be recovered, and that " the indorsement required by this 
 act (§ 39), to the effect that defendant was liable to arrest, was 
 complied with, but also, that " the action shall have been brought loithin 
 one month after the cause of action accrued. ,, No limitation whatever 
 as to when the action must be brought is contained in section 1405, 
 therefore this is another change, and a most radical one. 
 
 The wage-earner " had six years to sue on his contract with his 
 employer, and obtain the benefits of a judgment and execution for 
 arrest." Now he is limited to one month. It is the shortest statute 
 of limitation in which to commence an action ever enacted. 
 
 Action by employee. — See § 44, " Where employee is a party." 
 
 Amount less than $50. — The issue of an execution against the per- 
 son, on a judgment obtained by a female for services less than $30, 
 Under section 1405 of the Consolidation Act, after a return of execution 
 against property unsatisfied, cannot be issued unless the judgment ami 
 docket contains a statement that defendant is subject to arrest and 
 imprisonment as provided in section 1386, the duty of the clerk in 
 
 24
 
 370 Execution. §§ 275, 276- 
 
 issuing the execution being purely ministerial. People ex rel. 
 Rosenzweig v. Costigan, 54 App. Div. 186. 
 
 Costs in action by working woman. — See § 340. 
 
 Marshal must discharge party imprisoned under execution after fif- 
 teen days 1 confinement. Padreshefsky v. Walton, 65 App. Div. 432. 
 
 Nurse. — Where services are rendered by a woman as a nurse in a 
 family, she is entitled t > the benefit of this section, but she cannot have 
 $10 extra costs under sections 3222 and 3131 of the Code of Civil 
 Procedure. Dillon v. Porter, 12 Week. Dig. 207. 
 
 Statement in judgment. — Under sections 1383 and 1405 of the Con- 
 solidation Act, a female having a judgment for less than $50. rendered 
 for services, execution on which has been returned unsatislied, cannot 
 have execution issue against the person of the judgment debtor, unless 
 the justice has caused to be inserted in the juagment a statement that 
 defendant is subject to arrest. Matter of Rosenzweig, 66 N. Y. Supp. 
 376. 
 
 § 275. Arrest and sale of property limited. — A defendant 
 cannot be arrested nor his property sold on execution after 
 twenty days from its issue or renewal, but property levied on 
 within the twenty days, may be sold after renewal. 
 
 Note to section 275. 
 
 This section is the same as section 1406 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as section 56, chapter 344, 
 Laws 1857. 
 
 §276. Marshal; when liable to execution; creditor. — A 
 
 marshal is liable to a party in whose favor an execution is 
 issued to him for the amount thereof in the following cases : 
 
 1. Where he suffers the twenty days to elapse without 
 making a true return thereof, and filing the same with the 
 clerk of the court, and paying to him or to the party entitled 
 thereto, the money collected thereon by him. 
 
 2. Where he willfully or carelessly omits to levy on prop- 
 erty of the defendant, or if the defendant be liable to arrest,, 
 to arrest and imprison him within the twenty days, or having 
 arrested the defendant, fails to commit him to the county 
 jail within the twenty days. 
 
 Notes to section 276. 
 
 This section is the same as section 1407 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as Laws 1857, chap. 344, 
 § 57.
 
 §276. Execution. 371 
 
 As to "marshals," generally, see tit. VIII, art. 11, §S 293 to 306; as 
 to " marshals" fees," see SS 354 and 350; under the latter section the 
 marshals' " fees " and " expenses " are tabulated. 
 
 Agreement with debtor. — A marshal to whom an execution had been 
 duly delivered made an agreement with the judgnu.it debtor without 
 the knowledge or consent of the judgment creditor or his attorney, a 
 day or two before the execution was returnable, to await payment one 
 week, and on the return day, at his own instance, procured from the 
 clerk of the court a renewal of the execution, and afterward returned 
 the execution unsatisfied, the judgment debtor having, after the re- 
 newal, left for parts unknown. Held, that the marshal was liable to 
 the judgment debtor for such damages as the latter had sustained by 
 reason of the neglect of duty by the marshal. McGuire v. Baushcr, 52 
 App. Div. 270, 05 N. Y. Supp. 382. 
 
 Defendant, to whom an execution was delivered as marshal, extended 
 the judgment debtor's time for payment beyond the time specified 
 therein, and, without consultation with the judgment creditor, procured 
 its renewal, and finally returned it unsatisfied, and the attorney for the 
 creditor testified that on the day execution issued he saw the judgment 
 debtors in possession of property more than sufficient to satisfy it, 
 which he told witness belonged' to him. Held, that the evidence was 
 sufficient to establish a claim for damages by reason of defendant's re- 
 newal of the execution. McGuire v. Bausher, 57 App. Div. 201, 08 X. 
 Y. Supp. 284. 
 
 Contempt; error or mistake of marshal. — Misbehavior in office, Avill- 
 ful neglect of duty, and disobedience to a lawful mandate of the court, 
 all imply bad faith and not a simple mistake or error of judgment. If 
 a party to an action is injured by a mistake of the sheriff* in the dis- 
 charge of an official duty, he can hold him and his sureties liable in 
 damages, but cannot proceed against him as for a contempt. He should 
 not be fined and imprisoned because he did not correctly decide difficult 
 and important questions at law, in relation to which learned counsel 
 differ and on which the court may well hesitate. Second Nat. Bank of 
 Osicego v. Dunn, 03 How. 434. 
 
 Delegation. — When an execution is duly issued to a marshal it be- 
 comes his duty to execute it in person. He has no power to substitute 
 another marshal in his place. Downs v. M'Glynn, 2 Hilt. 14, Abb. 
 Pr. 241. 
 
 Fictitious name. — Where an attachment against the property of a 
 person whose first name appears on the face thereof was fictitious, such 
 attachment and all proceedings thereunder are absolutely void, and a 
 marshal who executes such process will be equally liable with the 
 attaching creditor in an action for conversion of the goods levied upon; 
 and notwithstanding the evidence clearly shows that the party against 
 whom it was intended to proceed by attachment is the owner of the 
 property taken. J'<itrirl: v. Solintfer, 9 Daly, 149.
 
 872 Execution. J< 276. 
 
 A levy upon goods of a person served without having properly speci 
 ficd a fictitious name, under a judgment recovered in the action, is a 
 trespass. Fischer \. Eetherington, II Misc. Hep. ."iT."). 
 
 Exemption. — It is not necessary to claim the exemption of chattels 
 levied on at the time of the levy, but notice to the sheriff at any time 
 before actual sale is sufficient, and notice having been given, the ex- 
 emption is not waived by the presence of the debtor at the sale on 
 execution of the goods levied upon under an attachment, without then 
 claiming exemption. Hart maun v. Wood, 57 App. Div. 23. 
 
 Indemnity for a levy; sureties. — The acceptance by a marshal of a 
 sum of money as indemnity for a levy, instead of an undertaking, is 
 not an act within his official capacity, so as to make the sureties on 
 bis bond liable on his failure to return the money. De Sisto v. Stimmcl, 
 31 Misc. Rep. 711. 65 N. Y. Supp. 314. 
 
 Insufficient process. — The mere possession of personal property by 
 an officer who took it under insufficient process is enough to sustain 
 an action against him. Obericarth v. McLean, 7 Daly. 70. 
 
 Money not collected. — A constable does not incur the statutory 
 penalty of being liable for the amount of the execution by a failure to 
 make and file a return within the twenty days, where he has not col- 
 lected any money under the execution. Curry v. Farley, 8 Daly, 228. 
 
 Property taken and no return. — In an action against a constable and 
 his sureties it is proper to- join claims that he took sufficient goods on 
 plaintiff's execution to satisfy it; that be has failed to make return 
 and keeps and detains the money. Moore v. Smith, 10 How. 361. 
 
 Protection. — It is well settled that process regular and valid on its 
 face, issuing from a court having authority to issue it, and possessing 
 jurisdiction of the subject-matter to which the process relates, protects 
 the ministerial officer executing it. Imbert v. Hallock, 23 How. Pr. 
 456; Day v. Bach, 87 N. Y. 61. See also Crounsc v. Johnson, 47 N. Y. 
 St. Rep. 559; s. c., 65 Hun, 337. 
 
 Where a replevin process is valid on its face, the sheriff has no right 
 to look behind or beyond it. and he will be protected if he obeys it. 
 Second Nat. Bank of Osicego v. Dunn, 63 How. 434; s. c, 2 Civ. Proc. 
 Rep. 259. 
 
 An officer, acting under process apparently valid, but actually void, 
 may avail himself thereof for defense but not for aggression. Where 
 therefore an officer, who. by virtue of a process valid upon its face but 
 void for want of jurisdiction in the courl issuing it. has levied upon and 
 takes possession of property, brings an action to recover the property 
 against another officer, who, by virtue of process against the owner, 
 apparently valid, has taken it from plaintiff's possession, the character 
 of such possession is a subject of inquiry and attack, and the invalidity 
 of the process tinder which plaintiff acted may be shown; but defend- 
 ant's process protects him, and its validity cannot be assailed. Plain-
 
 § 277. Execution. 373 
 
 tiff's process however and his possession under it establish, prima facie, 
 a right of action. Clearwater v. Brill, 4 Hun, 728; revd., Clearivater 
 v. Brill, o3 N. Y. 027. 
 
 A requisition upon the sheriff in an action to recover the possession of 
 personal property only protects him in taking the property specified 
 1H m the possession of the defendant named; where however the actual 
 possession remains in the defendant, although there has been a transfer 
 of title and a constructive change of possession, the process is a protec- 
 tion. Bullis v. Montgomery, 50 N. Y. 352. 
 
 Recovering back money paid to marshal. — The payment to a marshal 
 of money by a wife, the owner of property, to secure it from a threat- 
 ened seizure under an execution against her husband, is not a voluntary 
 payment, and can be recovered back in an action against the marshal. 
 (\,<uly v. Curry, 8 Daly, 59. 
 
 Release. — The sheriff being once relieved from liability, the court 
 has no power to renew the liability. Lewis v. Stevens, 93 N. Y. 57. 
 
 Stranger's property. — Where a sheriff, under a warrant of attach- 
 ment, seizes property in the possession, and owned by, a person other 
 than the one against whose property the warrant is issued, he is liable 
 in an action of replevin to such person. Deutsch v. Reilly, 8 Daly, 132. 
 
 Wrong district. — Where, after levy of execution, the judgment is re- 
 versed upon appeal, because an objection, taken at the trial, that the 
 action was brought in the wrong district, was overruled, which " is 
 cause only of reversal on appeal, and does not otherwise invalidate the 
 judgment,'' no action can be maintained against the officer levying the 
 execution as for a wrongful taking of the property levied on. Burrow* 
 cliff v. Harrison, 9 Daly, 473. 
 
 § 277. Return of execution and satisfaction of judgment. — 
 
 AY heiierer an execution has been returned satisfied in whole 
 or in part, where a transcript of the judgment has been filed 
 in the county clerk's office, a certificate thereon, signed by 
 the clerk of the court in which the judgment was rendered 
 may be filed in the office of the clerk of the county, who 
 shall thereupon enter satisfaction for the amount so satisfied; 
 judgments docketed in these courts may be satisfied in the 
 same manner as judgments docketed in courts of record. 
 
 Note to section 277. 
 This section is the same as section 1408 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as Laws 1857, chap. 344, 
 § 58. " These courts " in this section mean this court, as there is only 
 one court. 
 
 Note. — There are no sections from 277 to 282.
 
 374 Clekks and Officees. Chae. ; ^ 1373. 
 
 TITLE VLTI. 
 
 Article I. Clerks and officers. 
 II. Marshals. 
 
 ARTICLE I. 
 
 Clerks and Officers. 
 
 Section 282. Duties of clerk. 
 
 283. To collect and account for fees, et cetera. 
 
 284. Docket, what to contain. 
 
 285. Entries, how to be made. 
 
 286. Index. 
 
 2£7. To be delivered by clerk to his successor. 
 
 288. Successor may issue execution on former unsatisfied 
 
 docket. 
 
 289. Certified copies; prima facie evidence. 
 
 Notes to title VIII, article I. 
 
 The commissioners appointed to revise and codify the laws relating 
 to this court by chapter 218, Laws 1901, in their report to the Legisla- 
 ture, under the above contents, say in a note, " The provisions of 
 sections 1373 and 1378 of the Charter are not included in this act, but 
 are preserved as Charter enactments." 
 
 Section 1383 of the Charter has not been repealed or disposed of, and 
 is preserved as a Charter enactment. It relates to provisions for the 
 removal of the clerks, and should have been included in the above note. 
 
 These three sections are as follows: 
 
 Clerks and assistant clerks. 
 
 CHARTER, § 1373.- There shall be in and for 
 each district a clerk of said court and in each district 
 in the boroughs of Manhattan, Brooklyn, The Bronx, 
 and the first district of Queens, an assistant clerk, 
 who shall be appointed by the justice elected in said 
 district, as hereinafter provided, and shall hold office 
 for the terra of six years from the date of appoint- 
 ment ; and before entering upon his duties each such 
 clerk or assistant clerk shall file in the office of the 
 comptroller of The City of New York a bond in the
 
 Char., § 1373. Clerks and Officers. 375 
 
 penal sum of five thousand dollars, conditioned for 
 the faithful discharge of his duty and the due account- 
 ing for and payment of all money by him received or 
 with him deposited in any action as such clerk tr 
 assistant clerk, to be approved by the said comptroller 
 to be indorsed thereon. Each such clerk and assist- 
 ant clerk shall receive a salary of three thousand 
 dollars per annum, except in the boroughs of Queens 
 and Richmond, wherein the salary of the clerks and 
 assistant shall be two thousand dollars per annum 
 each. Such salaries shall be paid in equal, monthly 
 installments ; and neither said clerks nor assistant 
 clerks nor other employees of said court shall receive 
 any fee or compensation whatever for their own use for 
 any services performed by them by virtue of their 
 offices other than their salaries ; and the duties of 
 such clerks and assistant clerks shall be the same as 
 those now imposed by law upon the clerks and assist- 
 ant clerks of the district courts in The City of New 
 York. No such clerk, assistant clerk or other em- 
 ployee of such courts shall hold any other office or be 
 interested in any other business, except as permitted 
 by the next section, but shall give their whole time to 
 their respective duties and shall reside in the borough 
 in which the district for which they are appointed 
 respectively is situated. For any breach of said bond 
 the appellate division of the supreme court or any 
 justice of the supreme court in the judicial depart- 
 ment wherein the district for which such clerk or 
 assistant clerk is appointed is situated, may order the 
 same to be prosecuted in the name of any person
 
 370 Clerks and Officers. Char., § 1373. 
 
 damaged by such breach. The clerks, assistant clerks, 
 stenographers, interpreters and attendants of the dis- 
 trict courts in The City of New York, and of the 
 justices' courts of first, second and third districts of 
 the city of Brooklyn, who shall be in office on the first 
 day of January, eighteen hundred and ninety-eight, 
 shall continue until the expiration of their respective 
 terms, in the like capacities as officers of the said 
 municipal court. Each justice upon appointing a 
 clerk or assistant clerk shall make duplicate certifi- 
 cates of such appointments, stating the term of the 
 appointment and when it will expire, and one of such 
 duplicates shall be filed by him in the office of the 
 city clerk, and the other with the secretary of the 
 board of justices provided for in the next section. 
 The said justices shall in like manner also appoint the 
 officers necessary to attend the court in each district, 
 not exceeding three, at an annual salary of one 
 thousand dollars, and a stenographer ' in and for each 
 district at an annual salary of two thousand dollars, 
 and in and for each district in the boroughs of Man 
 hattan and Brooklyn an interpreter at an annual salary 
 of twelve hundred dollars. Each of said attendants, 
 stenographers and interpreters shall be appointed for 
 two years or to fill the residue of an unexpired term. 
 The said justices may remove any of said attendants, 
 stenographers or interpreters, provided that before 
 removal such officers shall have notice of the cause of 
 their proposed removal and an opportunity to make 
 an explanation ; and the reasons for any removal shall 
 be briefly entered on such minutes.
 
 Char., § 1373. Clerks and Officers. 377 
 
 Notes to Charter section 1373. 
 
 This section is taken from the Consolidation Act (Laws 1882, chap. 
 410), §§ 1427, 1429, 1430, 1432, and 1434. 
 
 Section 1427 was superseded by section 1373 of the Charter of 1897 
 (Laws 1897, chap. 378). 
 
 Section 1373 was amended by Laws 1899, chapter G99, so as to in- 
 clude an interpreter for each district in the borough of Brooklyn. 
 
 Section 1429 was repealed by Laws 1902, chapter 580, and now con- 
 stitutes section 283 of this act. 
 
 Sections 1430, 1432, and 1434 were also superseded by section 1373 of 
 the Charter (Laws 1901, chap. 466), which latter has been left unre- 
 pealed. 
 
 Appointment. — The power conferred by the Charter section 1351 
 upon justices elected or appointed pursuant to the act to appoint clerks 
 of their courts for the term of six years does not apply to an existing 
 justice of the peace in Brooklyn who is transferred by the act into this 
 court. Stuber v. Coler, 164 N. Y. 22, 58 N. Y. St. Rep. 17, revg. 49 
 App. Div. 88, 63 N. Y. Supp. 723. 
 
 Assistant clerk can hold two civil offices simultaneously. — Gilchrist 
 v. Murray, 73 N. Y. 535, revg. 8 Daly, 347. 
 
 Id.; no second assistant clerk. — The effect of the adoption of the 
 Charter of 1897 was to authorize the retention of a clerk and an assist- 
 ant clerk of each of the former district civil courts of Brooklyn; and 
 all other clerkships in connection therewith were abolished, and a 
 second assistant clerk, though a veteran, has no right to a mandamus 
 retaining him in office. People ex rel. Joyce v. Van Wart, 36 App. Div. 
 518, 55 N. Y. Supp. 68; aft'd., without opinion, in 158 N. Y. 721. 
 
 Attendant. — Definition of " term," as applied to term of office. 
 See People ex rel. Batcy v. Tierney, 31 App. Div. 309. 
 
 Constitutionality of, was questioned in Green v. The Mayor, etc., 5 
 Abb. 507, upon the ground that it violated the provisions of the Consti- 
 tution which give the election or appointment of the clerks to the 
 people, or to the local authorities. 
 
 Definition of the word " clerk."— See § 360, subd. 3, and § 3343, subd. 
 4, Code Civ. Proc. 
 
 Interpreter. — It is now settled that in order to become entitled to 
 salary as an interpreter, he must be able to speak at least two languages. 
 Conroy v. The Mayor, 6 Daly, 49; affd., 67 N. Y. 610. 
 
 Id.; not an officer of the city government. — The interpreter of a 
 District Court is an officer of the court and not an officer of the city 
 government, and he is not prohibited from holding two offices at the 
 same time. Goettman v. The Mayor, 6 Hun, 132. 
 
 Id.; can hold two civil offices simultaneously. — See cases cited under 
 § 1549 of the Charter, p. 871. Second edition Charter by Ash, 1901.
 
 378 Clekks am) Officers. CiiAi:., § i:>73. 
 
 Janitor not an officer. — A janitor of a District Court in the city of 
 New York is not an officer but an employee under the city government. 
 Sullivan v. The Mayor, 48 How. 238. 
 
 Member of Assembly may be appointed clerk. — Article 3 of section 
 7 of tlie Constitution of the State of New York, which provides that 
 ' No member of the Legislature shall receive any civil appointment 
 within this State, or the Senate of the United States, from the Governor, 
 the Governor and Senate, or from the Legislature, or from any city gov- 
 ernment, dining the time for which he shall have been elected, and all 
 such appointments and all votes given tor any such member for any 
 such office or appointment shall be void," does not render invalid an 
 appointment by a justice of a member of assembly to a clerkship — 
 such a justice not being an officer of the city government. Stewart v. 
 Mayor, etc., 15 App. Div. 548. 
 
 Not officers of city government. — Clerks of this court are not such 
 officers as are connected with the political organization of the city 
 government. Whitmore v. The Mayor, 67 N. Y. 21, affg. 5 Hun, 195, 
 followed in People ex rel. Gilchrist v. Murray, 73 N. Y. 535, revg. 8 
 Daly, 347. 
 
 Duty of clerk. — As to the duty of the clerk in keeping and paying 
 out moneys received by him as such, and instructions and advice gener- 
 ally as to his official duties, see In the Matter of Spear, " Law Journal " 
 of January 16, 1901, where the opinion of the Appellate Division is 
 published in full. The case is referred to in 56 App. Div. 625, as fol- 
 lows: "In the Matter of Howard Spear, charges dismissed; opinion 
 by Hatch, J. (opinion not published by direction of the court). See 
 also as to this case note to Charter § 1383. 
 
 As to removal of clerk, see Charter § 1383, and cases cited. 
 
 Tenure of office. — This section does not include an officer appointed 
 to hold office at the pleasure of the appointing power. It was intended 
 to cover only officers of the court, appointed for a fixed term of office. 
 In re Batey, 31 App. Div. 309; s. c, 52 N. Y. Supp. 871; In re Good- 
 win, 30 App. Div. 418; s. c, 51 N. Y. Supp. 355. See however McKenna 
 v. City of H'ew York, 34 App. Div. 152; s. c, 54 N. Y. Supp. 634; 
 People ex rel. Joyce v. Van Wart, 25 Misc. Rep. 215, 55 N. Y. Supp. 68. 
 
 A justice has power to appoint a clerk to serve during the unexpired 
 portion of his term of office. Stuber v. Coler, 164 N. Y. 22, revg. 49 
 App. Div. 88; s. c, 63 N. Y. Supp. 723. 
 
 Stenographer. — The fees of stenographers for transcript of minutes 
 on appeal are ten cents for every hundred words. § 353. 
 
 Term of office. — The term of office of the clerks of the District Courts 
 in the city of New York is for a period of six years, and is not de- 
 pendent upon the expiration of the term of office of the justice. People 
 ex rel. Healy v. Leask, 67 N. Y. 521.
 
 Char., §§ 1378, 1383. Clerks and Officers. 379 
 
 For the various laws concerning the appointment of these clerks, 
 and their terms of office since 1851, see the able opinion of the lamented 
 Judge Hamilton \V. Robinson, in above case, reported in People ex rel. 
 Healy v. Leask, 6 Daly, 517, which was affirmed on appeal. 
 
 One appointed to the office of clerk of these courts, on the death, 
 resignation, or removal of an incumbent thereof, prior to the expira- 
 tion of his term of office, is appointed for a term of six years from 
 the date of the appointment. People ex rel. Clarke v. Breen, 53 N. Y. 
 Super. (J. & S.) 167. 
 
 In court of justice of peace of first district of Brooklyn, term of 
 office not affected by an action of the board of estimate, etc., of the 
 city of New York, as to his compensation. MeKenna v. City of New 
 York, 34 App. Div. 152 ; affd., Court of Appeals, 100 N. Y. 658. 
 
 Clerks to administer oaths. 
 
 CHARTER, § 1378. The clerks and assistant 
 clerks of the said municipal court are authorized to 
 administer oaths in The City of New York in the 
 same manner and with the like effect as clerks of 
 courts of record. 
 
 Notes to Charter section 1378. 
 
 This section supersedes section 1431 of the Consolidation Act (Laws 
 1882, chap. 410). 
 
 By section 282, subdivision 5, of this act, it is made the duty of the 
 clerk " to administer oaths in an action, in the presence of the court 
 and under its direction." The word " clerk " includes " assistant 
 clerk " by subdivision 3, section 360. 
 
 Officer, etc., may charge fee paid for oath, postage, etc. — See § 3291, 
 Code Civ. Proc. 
 
 No fee for administering certain oaths. — See Code Civ. Proc, § 3289. 
 
 Fees generally. — See notes to § 282. 
 
 Removal. 
 
 CHARTER, § 1383. The justices of said court 
 and the clerks and assistant clerks thereof may be re- 
 moved for cause after due notice and an opportunity 
 of being heard by the appellate division of the su- 
 preme court in the judicial district wherein the dis-
 
 380 Cleeks and Officees. §282. 
 
 trict for which said justices were elected or appointed, 
 or wherein the district for which such clerks or assist- 
 ant clerks were appointed, is situated. 
 
 Notes to Charter section 1383. 
 
 See also Const. 1894, art. 6, § 17. and Laws 1880, chap. 354, § 25. 
 
 Charges and hearing. — The application must be to the Appellate 
 Division, upon specific charges, with opportunity to the representa- 
 tives of the city to prove the charges, and to the accused to be repre- 
 sented by counsel, to cross-examine the witnesses produced to prove 
 the charges, and to call others in defense. Matter of Du Mahaut, 43 
 App. Div. 50, 59 N. Y. Supp. 353. See also In re Thomas, 2 N. Y. 
 Supp. 38. 
 
 Neglect of duty; carelessness and neglect. — When paying out money 
 to parties, or their attorneys, clerks should take a proper receipt 
 therefor; should keep the city's money separate from their own, and 
 should properly account for the same ; should deposit the money in 
 a bank and no checks should be drawn thereon except such as relates 
 exclusively to the court's business, and such as the clerk is required to 
 discharge in the ordinary course of his duties. In the Mutter of Spear, 
 Law Journal, January 16, 1901, where the opinion of the Appellate 
 Division is published in full. The case is referred to in 56 App. Div. 
 625, as follows: "In the Matter of Howard Spear, charges dismissed; 
 opinion by Hatch. J. (opinion not published by direction of the court)." 
 The opinion contains instructions to the clerk, how he is to keep and 
 pay out moneys received by him, and also instructions and advice gen- 
 erally as to his official duties. See also notes to § 282, " Duties of the 
 clerk."' 
 
 §282. Duties of the clerk. — It shall be the duty of the 
 clerk of the court in each district : 
 
 1. To keep the seal of the court, and affix it to the certifi- 
 cate of the transcript of the docket of judgment, or any other 
 certificate, when required so to do. 
 
 2. To record the proceedings of the court. 
 
 3. To keep the records and other books appertaining to 
 the court. 
 
 4. To file papers delivered to him for that purpose in any 
 action. 
 
 5. To attend the sitting of the court of which he is clerk, 
 to administer oaths in an action, in the presence of the court
 
 § 282. Clerks and Officees. 381 
 
 and under its direction, and to receive the verdict of the 
 jury, and in the absence of the justice to adjourn causes to a 
 time agreed upon between the parties or, when no justice 
 appears, to adjourn causes to the next judicial day. 
 
 6. To authenticate by certificate or exemplification, as 
 may be required, the records or proceedings of the court, or 
 any other papers appertaining thereto and filed with him. 
 
 7. To exercise the powers and perform the duties con- 
 ferred and imposed upon him by this act. 
 
 8. In the performance of his duties to conform to the 
 direction of the court. 
 
 9. To keep his office open for the transaction of business, 
 every judicial day, from nine o'clock in the forenoon to four 
 o'clock in the afternoon. 
 
 Notes to section 282. 
 
 This section is taken from section 1428 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as Laws 1857, chap. 344, 
 § 72, adding to subdivision 5 the power to the clerk, in the absence 
 of tne justice, to adjourn causes to a time agreed upon between the 
 parties, or to the next judicial day. 
 
 We suppose the words " any action " in subdivision 4 might be 
 held to also include '"any proceeding,' so as to include a summary 
 proceeamg. 
 
 The word " clerk " includes " assistant clerk " by subdivision 3, 
 section 260. 
 
 As to other duties of the clerk as specified in subdivision 7. and not 
 included in this title and article, see §§ 3. 18, 29. 30. 30. 44. 7"). 205, 
 215. 232, 234, 238, 242, 251. 2G0. 201. 265, 267. 271, 277. 311, 316, 
 317. 330, 341. 343, 347, 349 and 350, and Charter §§ 1373 and 1378. 
 
 " Fees property of the city." See § 349. 
 
 As to "Fees payable to clerks," see § 347. 
 
 For Tabulated fees of the clerk, see end of § 356. 
 
 Certificate of fines of jurors to be sent to commissioner of jurors; 
 penalty for neglect. — See § 233. 
 
 Duties are ministerial; mandamus. — The duties of the clerk are en- 
 tirely ministerial {Dalton v. Laughlin, 4 Abb. N. C. 188), and there- 
 fore he cannot be required to insert in a transcript anything that does 
 not appear in and by the judgment itself. A motion for a mandamus 
 for that purpose was therefore denied. People ex rel. Fox v. Clerk 
 Eleventh Dist. Ct., McAdam, J.. X. Y. L. J.. March 30. 1894. 
 
 Fees. — All fees shall be prepaid before the service shall be performed. 
 See § 347, subd. 7.
 
 382 Glebes and Officebs. § 282. 
 
 Id.; to be paid before required to transmit papers. — See Code Civ. 
 Proc, § 3292. 
 Id.; no service until fees paid. — See § 283. 
 Id.; clerk to collect and account for. — See § 283. 
 Id.; property of the city. — -See § 349. 
 
 Id.; general provision as to fees to be accounted for. — See § 3286, 
 Code Civ. Proc, and f 283 of this act. 
 
 Id.; penalty for extortion. — For violation of any of the provisions of 
 sections 3280 and 3281 of the Code of Civil Procedure, see § 3282, 
 Code Civ. Proc. 
 
 Id.; taking for service not rendered, prohibited. — See § 3281, Code 
 Civ. Proc. 
 
 Id.; taking fees not prescribed by law, prohibited. — -See § 3280, Code. 
 Civ. Proc. and § 347 of this act. See also §§ 3281 and 3282, Code 
 Civ. Proc. 
 
 Transcript. — The clerk of the court in the district in which judg- 
 ment, where defendant is liable to arrest, is entered must, in any tran- 
 script issued by him, insert the words " defendant liable to execution 
 against his person." See § 251. 
 
 Rules of the Municipal Court. — The board of justices of this court, 
 as provided by section 12, has adopted "Rules Relative to Clerks and 
 Attendants." which will be found in extenso under said section. 
 
 Saturday. — By Laws 1887, chap. 185, p. 205, this court and the 
 clerks' offices thereof may be closed on each Saturday at one o'clock in 
 the afternoon, from the first day of July to the first day of October, 
 both days included, in each year, provided such court is not engaged 
 in the actual trial or hearing of actual proceedings. 
 
 Searching records; certificate of search; fees; penalty for neglect. — 
 See § 901, Code Civ. Proc. 
 
 For fees of the county clerk, referred to in this section, see Code 
 Civ. Proc, §§ 3301, 3304, and 3305. 
 
 Summary proceedings. — The duties of the clerk as respects summary 
 proceedings are to be found in chapter 17, title 2, sections 2231 to 2205, 
 of the Code of Civil Procedure, which supersedes all the former laws 
 on the subject of summary proceedings in this court except the session 
 laws enacted relating thereto, which were left unrepealed. 
 
 By section 2239 of said Code, the petition by which these proceed- 
 ings are now commenced must be filed with, and the precept issued by, 
 the clerk of the court; there are other provisions respecting the duties 
 of the clerk, hut, as already stated, it is not the province of this work 
 to treat of " Summary Proceedings," and the practitioner must be 
 referred to the sections of the Code of Civil Procedure, already men- 
 tioned, for information on this subject. 
 
 Summons. — The clerk must indorse upon the summons and upon the 
 copy thereof, in an action where an execution may issue against the
 
 §§ 283, 284. Clekks a.nd Officers. 383 
 
 person, a general reference to that fact in the following form : 
 " Plaintiff claims defendant is liable to arrest and imprisonment in this 
 case." See § 39. 
 
 § 283. To collect and account for fees, et cetera. — It shall 
 be the duty of the clerk in each district, to collect and receive 
 all the fees, including the fees allowed by law in summary 
 proceeding's to recover lands, and to account for and pay 
 the same into the city treasury monthly, under oath, on the 
 first day of each and every month, or within three days 
 thereafter, which account shall contain the title of each case 
 and the amount of fees received therein, and the salary of 
 such clerk shall not be paid until he shall have so accounted 
 and paid, and he shall perform no service until he shall have 
 received the legal fees therefor. 
 
 Notes to section 283. 
 
 This section is taken from section 1429 of the Consolidation Act 
 (Laws 1882. chap. 410), which was the same as section 73, chapter 
 344, Laws 1857. 
 
 Fees; provisions of law as to. — See notes to § 282. 
 
 Id.; Tabulated statement ot. — See the end of § 356. 
 
 § 284. Docket; what to contain — The clerk of the court 
 in each district must keep a book, denominated a docket, in 
 which must be entered by him: 
 
 1. The title of every action or proceeding, in which a 
 summons or precept is issued. 
 
 2. The date of the summons or precept, and the time of 
 its return, and if an order of arrest, warrant of attachment 
 or writ of replevin was issued such facts must also be stated. 
 
 3. The time when the parties, or either of them appeared; 
 a minute of their pleadings, if in writing, referring to them; 
 if not in writing a concise statement of the pleadings. 
 
 4. Every adjournment, and to what time. 
 
 5. When a trial by jury is demanded, the demand must 
 be stated, and by whom made, and the time appointed for 
 the trial, and the return of the jury. 
 
 6. The names of the jury sworn.
 
 381 Glebes and Officers. §285. 
 
 7. The verdict of the jury and when received; if the jury 
 disagree and arc discharged, that fact must be stated. 
 
 8. The judgment of the court, its amount, arid the costs in 
 the action. 
 
 9. The issuing of execution, when issued, and to whom; 
 the renewals thereof, if any, and when made; the return and 
 when made, and a statement of money paid to or by the 
 clerk, and when, and by or to whom. 
 
 10. The giving of a transcript to he filed in the county 
 clerk's office, and when and to whom given. 
 
 11. The receipt of a notice of appeal or order to make or 
 amend a return, stating the time of the receipt thereof, and 
 the time of filing 'a return on appeal. 
 
 12. Any other order as the court may direct. 
 
 Notes to section 284. 
 
 This section is taken from section 1409 of the Consolidation Act 
 (Laws 1882, chap. 410), which was the same as section 59, chapter 
 344, Laws 1857. 
 
 When judgment may be entered. — The clerk is a co-operative part of 
 the court, performing its 7 ministerial duties, while the functions of 
 the justice are judicial. The entry or recording of the decision as a 
 judgment, whether by a clerk, or by the entry of it by the justice in 
 his docket, is, from its ministerial character, merely directory, and 
 niay be validly performed after the time fixed by the statute. Dalton 
 v. Loughlin, 4 Abb. N. C. 188. 
 
 Ine clerk has no power to enter judgment even upon the verdict of 
 a jury, except by the direction of the justice. The court must give 
 the judgment. De la Figanierre v. Jackson, 4 E. D. Smith, 477. 
 
 § 285. Entries; how to be made. — The several particulars 
 in the last section specified must be entered under the title 
 of the action or proceeding to which they relate, and at the 
 time when they occur. Such entries in the docket, or a 
 transcript thereof, certified by the clerk or his successor in 
 office, with the seal of the court thereon impressed, are 
 evidence to prove the facts as stated therein. 
 
 Note to section 285. 
 
 This section, together with sections 286, 287, 288, and 289, are taken 
 from sections 140!), 1410, 1411, 1412, 1413, and 1414 of the Consolida-
 
 §§ 286, 287, 288, 289. Clerks and Officers. 385 
 
 tion Act (Laws 1882, chap. 410), which are the same as Laws 1857, 
 chap. 344, §§ 59, GO, 61. 62, 63, and 64, with the exception of the word 
 " deputy "' changed to " assistant." 
 
 § 286. Index. — The clerk must keep an index to his 
 docket, in which must be entered the names of the parties to 
 each summons or precept, with a reference to the page of 
 entry; the names of the parties respectively, must be entered 
 in the index in alphabetical order. 
 
 Note to section 286. 
 
 See note to § 285. 
 
 § 287. To be delivered by clerk to his successor. — It is the 
 duty of the clerk to deliver to his successor in office his 
 official dockets and papers on file in his office, as well his own 
 as those of his predecessors which may be in his custody, 
 there to be kept as public records. 
 
 Note to section 287. 
 
 See note to § 285. 
 
 § 288. Successor may issue execution on former unsatisfied 
 docket — A clerk with whom the docket of his predecessor is 
 deposited, may issue execution on a judgment there entered 
 and unsatisfied, in the same manner and with the same effect 
 as though he was clerk of the court at the time the judgment 
 was rendered. 
 
 Note to section 288. 
 
 See note to § 285. 
 
 § 289. Certified copies; prima facie evidence. — A copy of 
 a paper on file in the office of the' clerk, certified by him or 
 his assistant as such, shall be prima facie evidence thereof. 
 
 Note to section 289. 
 
 See note to § 285- 
 
 Note.— There are no sections from 289 to 293. 
 
 25
 
 386 Marshals. Char., § 1424. 
 
 ARTICLE II. 
 
 Marshals. 
 
 Section 293. Marshal not to appear, et cetera. 
 
 294. Bond to be executed by. 
 
 295. Prosecution of bond. 
 
 29G. In what court bond may be prosecuted. 
 
 297. Judgments against marshals; transcript and execution. 
 
 298. Entry of judgment to be endorsed on bond; how. 
 
 299. Amount collected to be credited on bond. 
 
 300. City clerk to report cancelled bonds to mayor; renewal 
 
 of bond. 
 
 301. Appointment deemed waived for failure to file bond. 
 
 302. Process to be served by marshals. 
 
 303. Marshal may serve process within city limits. 
 
 304. Certain laws in relation to sheriffs made applicable. 
 
 305. Marshal to keep entry book and indorse, et cetera. 
 
 306. Removal and suspension of marshals. 
 
 Notes to article II. 
 
 Marshals. — The commissioners to revise and codify the laws relat- 
 ing to this court by chapter 218, Laws 1902, in their report" to the 
 Legislature, under the above contents, say. " Sections 1424, 1425, 1426 r 
 and 1427 of the Charter are not included in this act, but are pre- 
 served as Charter enactments." 
 
 These sections are as follows: 
 
 Marshals of the cities of New York and Brooklyn continued. 
 CHARTER, § 1424. The marshals in the city of 
 New York as heretofore known and bounded, and the 
 marshals and constables in the cities of Brooklyn and 
 Long Island City, and in the several towns mentioned 
 in section one of chapter one of this act, in office at 
 the time this act shall take effect, shall continue to 
 hold such offices and perform the duties thereof until 
 midnight of the thirty-first day of January, eighteen 
 hundred and ninety-eight, and said terms of office 
 shall then expire, except those of the marshals in the 
 late city of New York and the marshals in the late
 
 Chab., § 1425. Marshals. 387 
 
 city of Brooklyn who shall continue to be marshals of 
 The City of New York, as hereby constituted, till the 
 expiration of their respective terms. 
 
 Note to Charter section 1424. 
 
 The law relating to " City Marshals " was principally contained in 
 chapter 20, title 1. sections 1699 to 1711, both inclusive, of the Con- 
 solidation Act (Laws 1882, chap. 410). The sections have all been 
 repealed and sections 293 to 300 enacted in their place. This section 
 takes the place of section 1099 of the Consolidation Act. 
 
 Mayor to appoint marshal; term of office. 
 
 CHARTER, § 1425. On or before the twentieth 
 day of January, eighteen hundred and ninety-eight, 
 the mayor of The City of New York shall appoint ten 
 marshals in the manner provided in the next section, 
 who shall hold their respective offices for six years; 
 and there shall be appointed in like manner every 
 sixth year thereafter the same number of marshals for 
 the like terms. Any person appointed after the com- 
 mencement of the term, as herein prescribed, shall 
 hold only until the expiration of the term and until a 
 successor is duly appointed and has qualified. 
 
 Notes to Charter section 1425. 
 
 This section supersedes the Consolidation Act, §§ 106 and 1699. See 
 also § 1427, Charter. 
 
 Appointing power. — The power of appointment by the mayor under 
 this section is an executive power of the State vested by the Con- 
 stitution and law in him, and the judicial power can neither inquire, 
 into his motives in the exercise of this power, nor control him in 
 such exercise. People ex rel. Roosevelt v. Edson, 52 N. Y. Super. 
 (J. & S.) 53, revg. 51 N. Y. Super. (J. & S.) 238; s. c, 51 N. Y. Super. 
 (J. & S.) 22. 
 
 Must be in writing. — No appointment to office can be made verbally 
 except where permitted by the terms of the statute conferring the 
 appointing power; in the absence of such permission, the appoint- 
 ment must be by commission, viz., a formal writing signed by the
 
 388 Marshals. Chae., §§ 1426, 1427. 
 
 official with whom the appointing power rests. People ex rel. Babcock 
 v. Hurray, 70 X. V. 521, revg. 8 Hun, 577. See People ex rel. Kressen 
 v. Fitzsimmons, 68 N. Y. .">14. 
 
 Certificate of appointment. — By the Charter section 1547 every per- 
 son appointed or elected shall record a certificate designating the 
 terms for which said person has been appointed or elected. 
 
 Id. ; marshals for the boroughs of Queens and Richmond. 
 
 CHARTER, § 1426. Six of said marshals so to be 
 appointed shall be residents of the borough of Queens, 
 and four residents of the borough of Richmond ; and 
 said marshals shall be assigned by the mayor to such 
 duty within the boroughs wherein they reside respect- 
 ively as is or may be provided by law. 
 
 Successors to present marshals of New York city. 
 
 CHARTER, § 1427. On the expiration of the 
 terms of said marshals of the city of New York men- 
 tioned in the last clause of section fourteen hundred 
 and twenty-four of this act, the said mayor shall 
 appoint their successors for terms of six years respect- 
 ively. 
 
 Notes to Charter section 1427. 
 
 Tli is section supersedes section 1699 of the Consolidation Act (Laws 
 1882, chap. 410). See also § 1425 and notes. 
 
 Action by marshal. — He cannot serve a summons in his own action, 
 where he is plaintiff. See Smith v. Burlis, 23 Misc. Rep. 544. 
 
 Appearance or acting on behalf of either or any party by a marshal in 
 an action or proceeding is prohibited by section 293. And see § 63, 
 Code Civ. Proc. 
 
 Arrest; duties of marshal. — See § 66. 
 
 Id.; Id.; execution on. — See §§ 266, 272. 
 
 Id.; dumping garbage into the waters of the port of New York. — 
 See § 880, Charter. 
 
 Id.; order of, must be directed to marshal. — See § 56. 
 
 Id.; Id.; must be served by marshal. — See § 59. 
 
 Id.; marshal may require sureties in undertaking on, to justify. — 
 "See § 63.
 
 Char., § 1427. Marshals. 389 
 
 Bond of a marshal.— § 203. 
 
 Bonds; prosecution of. — § 205. 
 
 Compensation of marshal are his lawful fees and necessary expenses 
 for taking the property and keeping it " as taxed by the court out of 
 which the proceeding issued." See § 104 of this act. Formerly, 
 under section 1711 of the Consolidation Act (Laws 1882, chap. 410), 
 the compensation was left to the discretion of the justice. See Stew- 
 art v. Fidelity L. Assn., 10 Misc. Rep. 49. 
 
 Contempt; when guilty of. — Dailey v. Fenton, 47 App. Div. 418, 62, 
 N. Y. Supp. (0G St. Rep.) 337. 
 
 Civil office; not to hold any other. — By the Charter section 1549 no 
 appointive officer under the city government can hold any other civil 
 office. 
 
 Definition of the word " Marshal."— See § 360, subd. 4. 
 
 Execution to marshal, its requisites; notice of sale, sale, and other 
 provisions concerning marshals. See § 271 and notes. 
 
 For unpaid taxes. § 853, Consolidation Act. Revised in Charter, 
 § 926. 
 
 Duties of marshal thereon. §§ 855 and 856. Revised in Charter, 
 §§ 928 and 929. 
 
 On judgment in action wherein a warrant of attachment was had, 
 how executed. § 91, this act. 
 
 Against marshal on judgment against him. §§ 270 and 297, this act. 
 
 Exempt property from levy and sale. — See §§ 1389 to 1404, Code Civ. 
 Proc. 
 
 Fees of marshal.— See § 354, and Code Civ. Proc, § 339. 
 
 Id.; replevin. — See § 104; Stewart v. Fidelity, etc., 19 Misc. Rep. 
 
 419. 
 
 Id.; tabulated.— See end of § 356. 
 
 Jury. — Marshal in charge of. See § 240. 
 
 Judgment against marshal. §§ 270 and 297. this act. 
 
 Liability of marshal to execution creditor. — See § 276 and notes. 
 See also §§ 113, 114. 
 
 Being once relieved from liability, the court has no power to renew 
 his liability. Lewis v. Stevens, 03 N. Y. 57. 
 
 Oath to marshal. — See notes to § 240. 
 
 Order of arrest must be directed to a marshal (§ 56, this act), and 
 must be served by him. § 50, this act. Duties on executing. §§ 61, 
 62, 63, 64, and 65, this act. 
 
 Powers of.— See § 330, Code Civ. Proc. 
 
 Process must be served and executed by a marshal. §§ 55 and 303, 
 this act. By the latter section, anywhere in the city of New York. 
 
 Removal of marshal by mayor. — § 306, this act. 
 
 Return of marshal shall be presumptive evidence in action against 
 sureties. § 127, this act.
 
 390 Marshals. §294. 
 
 Summary proceedings. — Service of precept in § 36, this act. 
 
 Summons, service of. § 31, this act. Alias summons. § 30, this 
 act. 
 
 Transcript of judgment against marshal. — §§ 270 and 297, this act. 
 
 Sale on execution, when and how conducted. See § 1384, Code Civ. 
 1'roc, and notes to § 271 of this act. 
 
 § 293. Marshal not to appear, et cetera. — A marshal of the 
 city of New York cannot appear or act on behalf of either 
 or any party in an action or proceeding in said municipal 
 court. 
 
 Note to section 293. 
 
 This section is taken from section 1369 of the Charter (Law3 1397, 
 chap. 378, as amended in 1901). 
 
 § 294. Bond to be executed by — No marshal shall be per- 
 mitted to enter upon the duties of the office until he shall 
 execute a bond, with two sufficient sureties, who shall be 
 residents of and shall own real estate within the city of New 
 York, to the amount of double the penalty of the bond, to 
 the city of New York, in the penal sum of two thousand 
 dollars, jointly and severally to answer the city of New York, 
 and any parties that may complain conditioned that such 
 marshal shall well and faithfully execute the duties of said 
 office of marshal, without fraud, deceit or oppression, such 
 sureties to justify in double the amount of such bond. The 
 said bond shall be delivered to the city clerk of the city of 
 New York, who shall judge of and determine the competency 
 of the sureties; and should he approve of the same, he 
 shall note his approval thereon, and shall cause such bond to 
 be filed in the office of the city clerk, forthwith after having 
 been approved by him, and he shall either approve of or 
 reject such bond within five days after the same shall have 
 been presented to him for that purpose. Nothing in this 
 act shall be construed to prevent a surety company author- 
 ized by law to act as surety. 
 
 Note to section 294. 
 
 This and sections 295 and 290 are taken and constructed from sec- 
 tions 1700, 1701, and 1702 of the Consolidation Act (Laws 1882, chap. 

 
 § 295. Marshals. 391 
 
 410) and from section 1428 of the Charter, the provisions of which 
 latter section have been substantially followed in sections 294, 295, and 
 296. The bond of the marshal is increased from $1,000 to $2,000. 
 
 § 295. Prosecution of bond. — Any person who shall be ag- 
 grieved by any official misconduct on the part of any marshal, 
 and who may desire to prosecute his official bond, and who 
 shall have first obtained judgment against such marshal for 
 official misconduct, may move before a justice of the supreme 
 court at special term, in the judicial department, wherein 
 the borough for which such marshal shall have been ap- 
 pointed, is situated, after giving such marshal and his sure- 
 ties eight days previous notice of intention so to do, by 
 personal service of said notice on them, stating when such 
 motion will be made and of the papers to be used on such 
 motion, for leave to prosecute such official bond in his own 
 name, and such leave shall be granted upon it appearing 
 satisfactorily to said court : 
 
 1. That a judgment has been obtained in his favor against 
 such marshal for official misconduct, specifying the time 
 when and the court whereby such judgment was rendered, 
 and the amount thereof. 
 
 2. That such transcript of judgment has been filed against 
 such marshal in the office of the clerk of the county, within 
 which the borough for which said marshal shall have been 
 appointed, is situate; specifying the time when such tran- 
 script was filed and execution issued, and that the sheriff of 
 that county has returned said execution, wholly or partly 
 unsatisfied, after having demanded payment thereof of such 
 marshal; and his neglect or refusal to pay the same, and if 
 any payments have been made on such execution, specifying 
 the amount thereof, but where such marshal shall have died 
 or removed from the city of New York, a demand for the 
 payment of the amount of such execution shall not be neces- 
 sary. 
 
 3. That such judgment is wholly or partly unpaid, speci- 
 fying the amount uncollected or unpaid, and that the sureties 
 or surety, have or has been served, with the notice and 
 papers hereinbefore mentioned.
 
 392 Marshals. § 21)5. 
 
 Notes to section 295. 
 
 See notes to § 294. See § 1, subd. 5, as to action upon the bond in 
 this court. 
 
 Liability of marshal to execution creditor. — See § 270 and notes. 
 
 Liability of sureties; exempt property. — The sureties, are liable for 
 the value of exempt property seized by a marshal. (Jriebe v. NortJirup, 
 60 App. Div. 86. 
 
 Id.; failure of marshal to make return. — In an action against a con- 
 stable and his sureties it is proper to join claims that he took suffi- 
 cient goods on plaintiff's execution to satisfy it; that he has failed to 
 make return and keeps and detains the money. Moore v. Smith, 10- 
 How. 301. 
 
 The surety of a marshal upon his official bond is liable in damages, 
 for the marshal's neglect to return an execution within the time re- 
 quired by statute. Carpenter v. Doody, 1 Hilt. 405. The condition 
 of the bond, that he " shall in all things well and faithfully perform 
 and execute the duties of marshal without fraud, deceit, or oppres- 
 sion," requires two things: First, that he shall perform the duties of 
 his office ; second, that he shall do so without fraud, deceit, or oppres- 
 sion. And, in the action upon the bond for the official neglect, e. g. r 
 to return an execution within the requisite time, it is not neces- 
 sary to show fraud, deceit, or oppression. Wend. 456. In such an 
 action, a judgment, previously recovered against the marshal for the 
 same neglect, is prima facie evidence of the amount for which the 
 surety is liable. Carpenter v. Doody, 1 Hilt. 405. 
 
 Id.; stranger; taking property of. — In an action against the sureties, 
 where the alleged breach of the bond is misconduct of the marshal, in 
 levying upon the goods of one person under an execution against an- 
 other, the judgment in an action by the party whose goods were taken 
 against the marshal for the unlawful taking may be given in evidence, 
 although the record does not show that the judgment was recovered 
 against him as marshal, or for misconduct in his office. Such evi- 
 dence is material to prove the act of taking, and parol evidence dehors 
 the record may be given to show the grounds of the judgment, and that 
 the act was done colore officii. Mayor, etc., v. Ryan, 7 Daly, 430. To 
 the contrary, see Berry v. Schad, 50 App. Div. 132. 
 
 Id.; valid judgment. — The sureties on a marshal's bond are not liable 
 until after a valid judgment has been recovered against their prin- 
 cipal. In re Braiser, 2 How. Pr. N. S. 154. 
 
 Not liable for indemnity money paid to marshal. — A surety upon 
 the official bond of a marshal, conditioned that if the said marshal 
 " shall well and faithfully execute the duties of said office of marshal 
 without fraud, deceit, or oppression, the above obligation shall be void; 
 otherwise shall remain in full force and virtue," is not liable there- 
 under for the failure of the marshal to return to the plaintiff in an
 
 §§ 296, 297. Marshals. 393 
 
 execution a sum of money deposited by the latter with the marshal 
 as security against any damages which the marshal might sustain by 
 reason of a levy made by him under the execution, pursuant to a 
 contract between the marshal and the plaintiff. De Sisto v. Stimmel, 
 58 App. Div. 486. 
 
 § 296. In what court bond may be prosecuted. — A justice 
 referred to in the preceding section, may order such bond 
 to be prosecuted in the municipal court of the city of New 
 York, or in the city court of the city of Xew York, if such 
 borough be within the county of Xew York, or in the county 
 court of the county wherein such borough is situated, if in 
 any other county. Either of said courts shall have jurisdic- 
 tion in actions brought on such bond, upon such leave being 
 granted, and the said justice upon said motion may award 
 the aggrieved party his reasonable costs on such motion, not 
 exceeding the sum 6i ten dollars, which shall be included 
 in the judgment obtained upon such bond. 
 
 Notes to section 296. 
 
 This section is taken from section 1702 of the Consolidation Act 
 (Laws 1882, chap. 410), and section 1428 of the Charter of 1897, as 
 amended in 1901. 
 
 See notes to § 294. 
 
 " Jurisdiction," in such action in this court. See § 1, subd. 5. See 
 also Moog v. Keogh, 4 N. Y. St. Rep. 539; s. c, 42 Hun, 494. 
 
 § 297. Judgments against marshals; transcript and execution. 
 — Whenever any judgment shall be rendered against any 
 marshal or his sureties or surety in any court as provided in 
 the foregoing section, a transcript thereof shall be filed with 
 the county clerk in the county wherein the judgment is so 
 obtained, and from the filing of such transcript the provisions 
 of section two hundred and seventy of this act apply. 
 
 Notes to section 297. 
 
 This section is taken from section 1703 of the Consolidation Act 
 (Laws 1882, chap. 410), which is similar to section 1398 of the Con- 
 solidation Act. The names of the " Marine Court " and " District 
 Courts " have been omitted. The name of the former was changed to 
 " City Court of New York " by Laws 1883, chap. 26, and the latter
 
 304 Marshals. §§298,299. 
 
 court was abolished by section 1350 of the Charter (Laws 1807, chap. 
 378). 
 
 The filing of a transcript in the office of the clerk of the Court of 
 Common Pleas has also been omitted. Said court was abolished since 
 January 1, 1896, by the Constitution of 1894, article 6, section 5. 
 
 Judgment against marshal. — See § 270. 
 
 Return of execution and satisfaction. — See § 277. 
 
 § 298. Entry of judgment to be endorsed on bond; how. — 
 The clerk of the county wherein said judgment is entered 
 shall issue a transcript upon application of the judgment 
 creditor, stating the amount of the judgment and that the 
 sum is a charge against the bond of the marshal. The 
 transcript may be filed with the city clerk in the office 
 wherein the bond of said marshal is filed, and the city clerk 
 shall make a memorandum on the official bond of every mar- 
 shal, upon the filing of every transcript, of a judgment ob- 
 tained against him and his sureties, and of the time when and 
 the court whereby such judgment was rendered, and the 
 amount thereof, and shall be entitled to a fee of fifty cents 
 therefor, which the court rendering judgment shall have 
 power to include in such judgment, together with whatever 
 other disbursements are or may be necessarily incurred in 
 said action, and the said bond shall be cancelled to the 
 amount of such judgment. 
 
 Notes to section 298. 
 
 This section is taken from section 1704 of the Consolidation Act 
 (Laws 1882, chap. 410). 
 
 Transcript. — By this section a transcript of a judgment against a 
 marshal may be filed with the " city clerk." 
 
 § 299. Amount collected to be credited on bond. — Whenever 
 any action shall be commenced against the sureties of any 
 marshal, and such sureties shall pay the amount for which 
 such suit is brought, and the costs and disbursements in- 
 curred therein, or any part thereof, the party or parties so 
 paying shall be entitled to have such sum so paid credited 
 upon such bond, upon presenting the certificate of the plain- 
 tiff or his attorney in such action, acknowledging such pay-
 
 §§300,301,302. Marshals. 395 
 
 ments to such clerk aforesaid, and upon such clerk endorsing 
 such payment on such bond, it shall be cancelled to the 
 amount so paid. 
 
 Note to section 299. 
 
 This section is the same as section 1705 of the Consolidation Act 
 
 (Laws 1882, chap. 410). 
 
 § 300. City clerk to report cancelled bonds to mayor; renewal 
 of bond. — Whenever judgment shall be rendered against the 
 official bond of any marshal, sufficient or partially sufficient 
 to cancel the same, the city clerk aforesaid, shall report to 
 the mayor the fact, and it shall be the duty of the mayor to 
 compel such marshal to renew his official bond, if the same be 
 cancelled in whole, or to furnish an additional bond, for the 
 amount of the cancellation in the penal sum of double such 
 amount, if said bond be cancelled in part, and should said 
 marshal neglect, refuse, or fail so to do, within ten days after 
 being notified, he shall be removed by the mayor aforesaid, 
 or suspended from performing the duties of the office until 
 such time as he shall renew the same, and such bond shall be 
 renewed in the same manner as often as the same shall be 
 cancelled. 
 
 Note to section 300. 
 This section is taken from section 1707 of the Consolidation Act 
 (Laws 1882, chap. 410). 
 
 § 301. Appointment deemed waived for failure to file bond. — 
 
 Every marshal shall, within thirty days after his appoint- 
 ment, enter into a bond in the manner provided in this act, 
 or he shall be deemed to have waived his appointment as 
 such marshal, and some other suitable and proper person 
 shall be appointed in his place and stead to discharge the 
 duties appertaining to such office of marshal. 
 
 Note to section 301. 
 
 Tli is section is taken from section 1708 of the Consolidation Act 
 (Laws 1882, chap. 410). 
 
 § 302. Process to be served by marshals. — Every summons, 
 precept, order of arrest, attachment, writ of replevin, or
 
 396 Maeshals. §303. 
 
 other process issued by or out of the municipal court, and 
 every summons or precept issued by the clerk of the court 
 in any district, and every summons issued by any justice 
 thereof, shall be served and executed by a marshal, except 
 as prescribed in section thirty-six of this act; but no person 
 other than a marshal shall be entitled to any fees or other 
 compensation therefor, except the persons who serve pro- 
 cess for the corporation counsel. 
 
 Notes to section 302. 
 
 This section is taken from section 1709 of the Consolidation Act 
 (Laws 1882, chap. 410), which is the same as Laws 1879, chap. 102. 
 
 This section specifies, "and every summons issued by any justice 
 thereof." The justice does not issue the summons in this court, the 
 clerk of the court issues the summons. See § 27. 
 
 The same error is contained in section 1709 of the Consolidation Act, 
 although by section 1297 of the Consolidation Act, the clerk of the 
 court issued the summons. Attention to this was called in the Fourth 
 Edition of this work, on page 444. 
 
 Process to be served by marshal. — Service of an order of arrest, 
 warrant of attachment, or requisition to replevy. See § 55 and notes. 
 
 Who may serve the summons. — See § 36 and notes. 
 
 Papers to be delivered to arrested person. — See § 59. 
 
 How warrant of attachment to be executed. — See § 77 and notes. 
 
 Service of summons and warrant on defendant. — See § 83 and notes. 
 
 Copy of process to be delivered when served. — See § 101, Code Civ. 
 Proc. 
 
 Execution of process; punishment for violation; may return by mail. 
 — See § 102, Code Civ. Proc. 
 
 § 303. Marshal may serve process within city limits. — A 
 marshal of the city of New York may, and is empowered, 
 and has the authority to serve or execute all process and 
 mandates of the municipal court of the city of New York, 
 in any part of the city of New York, notwithstanding he 
 was appointed for or is a resident in, a particular borough. 
 
 Notes to section 303. 
 
 This section is new, and removes any doubt as to the service, or 
 execution by a marshal of " all process and mandates " in any part 
 of the city of New York, as now constituted, viz.: Four counties and
 
 § 304. Marshals. 397 
 
 five boroughs, under the Charter (Laws 1897, chap. 378), as amended 
 by Laws 1901, chap. 466. See also § 304. 
 
 Process to be served by marshal. — See &§ 55 and 302. 
 
 Mandate is defined by § 3343, subd. 2, Code Civ. Proc. 
 
 § 304. Certain laws in relation to sheriffs made applicable 
 
 All provisions of law in relation to the taking' and restitution 
 of property by sheriffs of counties shall apply to the taking 
 and restitution of property by the said marshals, except that 
 a marshal is not restricted in the performance of his duty 
 as such, to the territorial limits of a county, when engaged 
 in the service or execution of process or mandates, but is 
 authorized to act within the limits of the city of ]STew York. 
 
 Notes to section 304. 
 
 This section is taken from section 1711 of the Consolidation Act 
 (Laws 1882, chap. 410). The addition, after the word "marshals," is 
 new. 
 
 These " provisions of law " are to be found mainly in the Code of 
 Civil Procedure, the Charter, and in the Session Laws. The following 
 are deemed of sufficient importance for insertion here. See also note3 
 to § 302. 
 
 Attachment. — Warrant of, must be served and executed by a mar- 
 shal. § 55, this act. 
 
 Duties on execution of warrant. See §§ 77 to 91, inclusive, this act. 
 
 Return on execution, and duties thereunder. §§ 88, this act. 
 
 Execution on judgment where property has been attached. § 91, this 
 act. 
 
 Marshal to approve sureties on undertakings by defendant on warrant 
 of attachment. § 84, this act. 
 
 Fees of marshals. — See §§ 354 and 356, where, under notes to the 
 latter section, the fees of the marshal, are tabulated. 
 
 Id.; and necessary expenses of marshal in replevin. — See § 104; and 
 see Stewart v. Fidelity Loan Co., 19 Misc. Rep. 49. 
 
 Id. — No officer of the city government except city marshals shall 
 receive fees to their own use. § 56 of the Consolidation Act, revised 
 by Charter, § 1550. See § 354, this act. 
 
 Levy. — Where a sheriff has notice that goods levied upon by him 
 while in the possession of a third person consist partly of goods claimed 
 by the latter, under a chattel mortgage, from the judgment debtor, and 
 partly of goods purchased from another, it is his duty, if he wishes 
 to make any distinction in his sale between the two classes, to ask 
 the person in possession to point them out so that they can be dis- 
 tinguished from each other. Sharp v. Lamrj, 37 App. Div. 136.
 
 398 Makshai.s. §§305,306. 
 
 Liability to execution creditor. — See § 270, and notes. 
 
 Mandate defined.— See § 3343, subd. 2, Code Civ. Proc. 
 
 Id.; direction and execution of. — See § 339, Code Civ. Proc. 
 
 Id.; when execution of, is resisted, sheriff to act. — See § 3158, Code 
 Civ. Proc. 
 
 Oysters around the waters of Harlem river; fines and penalties; 
 seizure and return by marshal. — See §§ 707, 768, 769 of the Con- 
 solidation Act, which remain in force until changed by board of alder- 
 men. 
 
 Rent, liability for. — Where a sheriff had levied upon a tenant's prop- 
 erty, refused to quit in obedience to a warrant of dispossession in 
 summary proceedings, saying that the landlord would get his pay, and 
 continued in possession after service of a notice that if he did so, the 
 landlord would hold him liable for use and occupation at a specified 
 rental, — Held, that tl.ese facts warranted a finding that the relation of 
 landlord and tenant existed, and that the sheriff was liable for the 
 rent. Gregg v. Tumsen, 42 App. Div. 148. 
 
 Replevin; chattel. — Requisition to replevy. § 100, this act. 
 
 Execution of same. § 102, this act. 
 
 Return to requisition. § 105, this act. 
 
 Exception to sureties may be served on marshal. § 106, this act. 
 
 Penalty for wrong delivery by marshal. § 112, this act. 
 
 Claim of title by third person. § 113, this act. 
 
 Action on the undertaking. § 126, this act. 
 
 How taken from a building. — See §§ 1701 and 1702, Code Civ. Proc, 
 and notes under § 103 of this act. 
 
 § 305. Marshal to keep entry book and indorse, et cetera. — 
 Every marshal shall keep a book in which he shall enter 
 immediately upon the receipt thereof all the process and 
 mandates of the court delivered to him for execution, and 
 his disposition thereof; and he shall also endorse upon such 
 process or mandate the date and the hour of receiving the 
 same. 
 
 Notes to section 305. 
 
 This section is new. No punishment or penalty is prescribed in this 
 section, if the marshal does not obey or conform to its provisions. 
 We suppose the next section is applicable. 
 
 Mandate is defined by § 3343, subd. 2, Code Civ. Proc. 
 
 § 306. Removal and suspension of marshals. — The mayor 
 may remove any marshal, after giving him an opportunity 
 to be heard, upon charges in writing preferred against such
 
 § 310. Appeals. 399 
 
 marshal, and filed with the mayor, and may, in his discre- 
 tion, suspend said marshal from the performance of his 
 duties, as such, pending a hearing upon the charges. Upon 
 charges being preferred against a marshal by a justice of 
 the municipal court, the mayor may forthwith cause notice 
 of suspension of such marshal to be served upon him, and 
 such marshal shall thereupon remain suspended until the 
 hearing and determination of such charges by the mayor. 
 
 Note to section 306. 
 
 This section is taken from section 1429 of the Charter (Laws 1897, 
 chap. 378), which superseded section 1706 of the Consolidation Act 
 (Laws 1882, chap. 410). 
 
 Note. — There are no sections from section 306 to 310. 
 
 TITLE IX. 
 
 Appeals. 
 
 Section 310. When appeal may be taken. 
 
 311. When and how taken. 
 
 312. Service of notice upon respondent. 
 
 313. Omission to serve one, how supplied; amendment when 
 
 allowed. 
 
 314. Undertaking to stay execution upon judgment. 
 
 315. Exception to sureties; justification. 
 
 316. Proceedings how stayed. 
 
 317. Return. 
 
 318. Settlement of case on appeal. 
 
 319. When justice is dead, et cetera. 
 
 320. Appeal when adverse party has died. 
 
 321. Proceedings when party dies pending appeal. 
 
 322. Order of substitution. 
 
 323. Restitution upon reversal. 
 
 324. Setting off costs and recovery. 
 
 325. Hearing on appeal, dismissal thereof; reversal on stipula- 
 
 tion. 
 
 326. Judgment. 
 
 327. Clerk appellate court to return papers. 
 
 § 310. When appeal may be taken. — An appeal from a 
 judgment rendered in an action, or a final order made in 
 summary proceedings in the municipal court of the city of
 
 400 " Appeals. § 310. 
 
 New York, or from orders as hereinbefore provided, may be 
 taken to the supreme court. Such appeal shall be heard in 
 such manner and by such justice or justices as the appellate 
 division of the supreme court in the judicial department, 
 embracing the district wherein the action is brought shall 
 direct, except that the appellate division of the second judi- 
 cial department may direct that such appeal may be heard 
 directly before that court. The appellate court may reverse, 
 affirm or modify the judgment, order or final order appealed 
 from, and where a judgment, order or final order is reversed, 
 may order a new trial, in the municipal court in the district 
 in which the action is brought. Where a judgment, order 
 or final order is modified or a new trial is ordered, costs shall 
 be in the discretion of the appellate court. 
 
 Notes to section 310. 
 
 This section is taken from the first subdivision of section 13G7 of the 
 Charter (Laws 1897, chap. 378, as amended by Laws 15)01, chap. 400), 
 which made articles I and II of title VIII, chapter 19, sections 3044 
 to 3002 of the Code of Civil Procedure applicable to this court, out of 
 which sections 310 to 328 of" the present act have been constructed. 
 Section 1367 Consolidation Act was entitled '"Appeals;" this section 
 is entitled " When appeal may be taken," but many other subjects are 
 included, such as hoiv and where the appeal shall be heard, the " dis- 
 position " the appellate court may make of the appeal, in what cases 
 costs are in the discretion of the court. These provisions were con- 
 tained in the former section. The title given to this section as to these 
 provisions is misleading. The provision as to the stenographer's min- 
 utes in the former section have been omitted in this one, and are now 
 to be found in section 353. " The orders as herein provided," referred 
 to in this section, will be found in sections 254 to 258. Section 253 is 
 excluded from these sections by the provisions contained in section 257. 
 
 Section 253 is entitled " Court may open default." 
 
 Section 254 is entitled " Motions to set aside a verdict or vacate 
 or amend a judgment." 
 
 Section 255 is entitled " New trial ; fraud or newly-discovered evi- 
 dence." This section provides that from such an order the appeal shall 
 lie as from a judgment of this court. 
 
 Section 256 is entitled " Court may impose conditions upon opening 
 a default, et cetera," which includes vacating, amending, modifying, or 
 setting aside a judgment. 
 
 Section 257 is not entitled nor is it mentioned in the contents of 
 article I. It prohibits an appeal in the first instance from an order
 
 § 310. Appeals. 401 
 
 opening a default and vacating a judgment entered thereon. There is 
 therefore no appeal froin_ such an order in the first instance, that ia 
 from the order itself, and we take it that the party aggrieved must 
 appeal from the judgment in order to have the order reviewed. See 
 Beebe v. Nassau S. C. Co., 41 App. Div. 456, 58 N. Y. Supp. 769. See 
 also § 326, " Judgment," wherein the power of the court on appeal is 
 again expressed and amplified. It may affirm or reverse in whole or 
 in part, as to any or all parties, for errors of fact or law, and order a 
 new trial where the judgment is contrary to or against the weight of 
 evidence. 
 
 Amount, correcting, modifying, and reversing judgment as to. — 
 Where the judgment is for too large a sum, and there is a particular 
 amount which ought to be deducted, the court may reverse the judg- 
 ment for so much as ought to have been deducted, and affirm it as to 
 the residue. Harris v. Bernard, 4 E. D. Smith, 195; Donohue v. Henry, 
 4 E. D. Smith, 162, 165; La Motte v. Archer, 4 E. D. Smith, 46; Shan- 
 non v. Burr, 1 Hilt. 39. 
 
 Where a justice errs in rendering judgment for too large a sum, it is 
 not necessary that the appellate court should reverse the judgment 
 absolutely. It may be reversed, unless the plaintiff remits the excess. 
 6 N. Y. 97, 104; Weed v. Lee, 50 Barb. 354. 
 
 The court on appeal has power to modify the judgment by eliminat- 
 ing therefrom all provisions other than that plaintiff was entitled to 
 the amount found due him. Egan v. Laemmle, 5 Misc. Rep. 224. 
 
 Id.; increasing recovery. — The power of the Appellate Term to modify 
 a judgment of this court may be exercised to increase the amount of the 
 recovery, where the record presents all the necessary facts upon which 
 a final judgment depends, and discloses no errors of law. Ayvard v. 
 Powers, 25 Misc. Rep. 476, 54 N. Y. Supp. 984. 
 
 Bronx borough, first district.— The portion of Westchester county 
 annexed to the city and county of New York by chapter 934, Laws 
 1895, and which is now embraced within the first district of the borough 
 of The Bronx, still remains part of the second judicial department, and 
 an appeal from that court may be brought directly before the Appel- 
 late Division of the Second Judicial Department. McTurck v. Foussa- 
 dier, 51 App. Div. 218; s. c, 64 N. Y. Supp. 962. See also Duckworth 
 v. Cunningham, 26 Misc. Rep. 403; s. c, 56 N. Y. Supp. 191. 
 
 Brooklyn, borough of. — Though an appeal may be taken either to 
 the Special Term of the Supreme Court or to the Appellate Division, if 
 the appeal is taken to the Special Term no further appeal to the Ap- 
 pellate Division lies. Manheim V. Seitz, 36 App. Div. 352, 55 N. Y. 
 Supp. 321. 
 
 .Construction of statute. — The right of appeal always to be liberally 
 construed; any construction that will work a forfeiture of that right 
 
 26
 
 402 Appeals. § 310. 
 
 is not to be favored. Ackerman v. Emott, 4 Barb. 626; s. c, 3 N. Y. 
 Leg. Obs. 337, 1 Wend. 388, 395. 
 
 In reviewing proceedings, it is the province of the court to give them, 
 and all the acts of the parties upon trial, a fair and reasonable construc- 
 tion, such as it may be supposed was intended by the parties, or under- 
 stood by the court, and so as to save, and not destroy, the rights of the 
 parties. The same precision is not to be looked for either in offers of, 
 or objection to evidence, nor the same care in noting them, that may 
 be expected upon trials in a court of record or on a formal bill of ex- 
 ceptions. Wilson v. Elwood, 28 N. Y. 117. 
 
 Cross-appeal. — Both parties may appeal from the same judgment. 
 Glassner v. Wheaton, 2 E. D. Smith, 352; Beach v. Raymond, 2 E. D. 
 Smith, 406; Bobbins v. Codman, 4 E. D. Smith, 316; Jones v. Owen,. 
 5 Hun, 399. 
 
 The respondent must also appeal to take advantage of any error. 
 When this is not done and the return clearly shows that no error was 
 committed, it will furnish no ground for reversal. Bobbins v. Codman, 
 4 E. D. Smith, 316; Lee v. Schmidt, 13 Abb. 183; s. c, 1 Hilt. 537; 
 Glassner v. Wheaton, 2 E. D. Smith, 352; Berrian v. Elmstead, 4 E. 
 D. Smith, 279. 
 
 The respondent can have no relief on appeal taken by the other party. 
 On an appeal taken by one party, the other can have no relief. Glass- 
 ner v. Wheaton, supra; Beach v. Raymond, supra; Rooney v. Secoml 
 Avenue R. R. Co., 18 N. Y. 3C8. 
 
 Costs on appeal to be taxed by clerk. See § 341. 
 
 Default; judgment. — An appeal lies from a judgment entered upon a 
 default. Spiero v. The Metropolitan St. Ry. Co., 14 Misc. Rep. 21. See 
 Allison v. The T. A. Snider P. Co., 20 Misc. Rep. 367; Szerlip v. Baier, 
 21 Misc. Rep. 692. 
 
 A judgment by default or affirming a judgment by default is not 
 appealable, because it does not affect a substantial right. Keller v. 
 Feldman, 29 Abb. N. C. 26; s. c, 49 N. Y. St. Rep. 718; Jacobs v. 
 Zeltner, 9 Misc. Rep. 455; Tooker v. Booth, 7 Misc. Rep. 421. 
 
 Order, appeal from opening. — By section 257 no appeal from the 
 order is allowed in the first instance; it seems it must be taken from 
 the judgment. See notes to § 257, and notes to this section above. 
 
 Id.; denying a motion to open default.— The order is not appealable. 
 The remedy is by appeal from the judgment. Beebe v. Nassau S. C. 
 Co., 41 App. Div. 456, 58 N. Y. Supp. 769. 
 
 Id.; abuse of discretion. — Where the refusal to open a default is an 
 abuse of discretion the order is appealable. Keller v. Feldmann, 29 
 Abb. N. C. 426; s. c, 49 N. Y. St. Rep. 718. 
 
 Discretion is defined in O'Connor v. Moscoiritz, 48 How. 451. 
 
 Judgment in one's own favor. — A party may have a judgment in 
 his own favor reversed, when he has recovered a less sum than the evi-
 
 § 310. Appeals. 403 
 
 dence shows lie is entitled to. Slaman v. Buckley, 29 Barb. 290; Bissell 
 v. Marshall, Johns. 100. 
 
 Jurisdictional defects. — An appeal may he taken from jurisdictional 
 defects as well as those of irregularity. Although a party is at liberty 
 to treat a judgment or proceeding as void for want of jurisdiction, he 
 may also seek a reversal by appeal. Fitch v. Devlin, 15 Barb. 47. See 
 also 6 Wend. 0.54. But see Hubbard v. Chapin, 28 How. 407. 
 
 Id.; appeal not waived. — Defendant does not waive his right to ap- 
 peal on the ground of lack of jurisdiction, by appearing at the trial 
 and introducing evidence after the ruling'' of the justice retaining the 
 cause. Lcverson v. Zimmerman, .'31 Misc. Rep. 042, 04 N. Y. Supp. 723. 
 
 Manner of hearing appeals by the Appellate Term as directed by the 
 Appellate Division in the First Judicial Department.— By authority of 
 the Constitution of 1894, article V, section 0, and' in accordance with 
 section 3213 of the Code of Civil Procedure, the justices of the Appel- 
 late Division of the Supreme Court (First Judicial Department), bor- 
 oughs of Manhattan and The Bronx, directed that appeals from the 
 Municipal Court of the city of New York in districts in the county of 
 New York shall be heard at the county courthouse, borough of Man- 
 hattan. 
 
 Manner of hearing appeals as directed by the Appellate Division in 
 the Second Judicial Department. — By the same authority, the justices 
 of the Appellate Division (Second Judicial Department), directed that 
 appeals from the Municipal Court in that department shall be heard at 
 the county courthouse in the city of Brooklyn, county of Kings, borough 
 of Brooklyn. 
 
 Rules of the Appellate Division of the foregoing respective judicial 
 departments will be found on pages 434, 435. 
 
 Mechanic's lien actions, appeal in. — See Code Civ. Proc, § 3409. In 
 such action an objection may be removed on an appeal by a modifica- 
 tion of the judgment for which the court has ample authority. 
 Eagan v. Lacmmle, 5 Misc. Rep. 224. 
 
 Orders, appeals from, are allowed by section 257 as provided in sec- 
 tions 253 to 257, except that an appeal from an order " opening " a 
 default is not permitted in the first instance, and it seems must be 
 from the judgment. See notes to § 257, and notes to this section above. 
 And see Becbe v. Nassau 8. C. Co., 41 App. Div. 456, 58 N. Y. Supp. 709. 
 
 Id.; discontinuance. — Where the summons in an action demands but 
 $49, a successful defendant can recover nothing but disbursements; and 
 where there is no proof that he has incurred any, he is not injured by 
 an order discontinuing the action without costs, and therefore he has 
 no grounds for an appeal from the order. Miller v. Fiss ct al., 21 
 Misc. Rep. 06. 
 
 Id. — Granting or denying motion for hew trial on the ground of 
 fraud or neirhj-discovered evidence is appealable as if from a judg- 
 ment by section 255.
 
 404: Appeals. § 311. 
 
 Offer to allow judgment. — As to the effect of an offer in the court 
 below after a removal on appeal, see Mock v. Saile, 52 Hun, 198, 23 
 N. V. St. Rep. 307, 17. Civ. Proc. Rep. 121. 
 
 Payment of judgment Joes not prejudice an appeal, if paid simply 
 in submission to the mandate of the court, and not by way of com- 
 promise or agreement not to appeal. Hardware, etc. v. Young, 27 
 Misc. Rep. 226, 57 N. \. Supp. 753. 
 
 Several claims. — Where two or more independent causes of action or 
 items of claim are in court, and the judgment is right as to one and 
 erroneous as to the others, and this appears on appeal, it is the duty of 
 the court to reverse as to the erroneous and affirm as to the legal part 
 of the judgment. 8 How. Pr. 377; Staats v. Hudson River R. R. Co., 39 
 Barb. 298; s. c, 23 How. Pr. 463; Decker v. Hassel, 26 How. Pr. 528. 
 
 Second Judicial Department may direct that appeal be heard directly 
 before the Appellate Division in that department. § 310. See also 
 Mauheim v. Beitz, 36 App. Div. 352, 55 N. Y. Supp. 321. 
 
 Summons not personally served, and defendant not appearing, he is 
 allowed to appeal within twenty days after personal service upon him 
 of written notice of entry of judgment. See § 311, and by § 253, the 
 " Court may open default." 
 
 § 311. When and how taken. — An appeal must be taken, 
 within twenty days after the entry of the judgment, order 
 or final order in the docket; except that where a defendant 
 appeals from a judgment rendered in an action, wherein he 
 did not appear, and the summons was not personally served 
 upon him, the appeal may be taken within twenty days after 
 personal service upon him, on the part of the plaintiff, of 
 written notice of the entry of the judgment. An appeal 
 is taken by serving upon the clerk of the court or his suc- 
 cessor in office, in the district in which the judgment, order 
 or final order was rendered, and upon the respondent, a 
 written notice of appeal, subscribed either by the appellant 
 or by his attorney in the appellate court. 
 
 Notes to section 311. 
 
 This section is taken from, and is substantially the same as sections 
 3046 and 3047 of the Consolidation Act (Laws 1882, chap. 410), relat- 
 ing to justices' courts, with the exception of the provisions as to orders, 
 the omission of five years to appeal, subscription of the notice of ap- 
 peal, and the provision that the notice of appeal must be served upon 
 the clerk of the court, and not. upon the justice as was done heretofore. 
 
 The provision in section 3047, as to payment of the costs of the action
 
 §311. Appeals. 405 
 
 included in the judgment, has heon omitted. Tn section 317 it is 
 assumed that it is not omitted, for that section provides that within 
 thirty days after service of the notice of appeal " and the payment of 
 the ' cost ' and fees as prescribed in this act " the clerk of the court 
 must make a return, but there is no provision " prescribed in this act " 
 for the payment of the " cost " or costs. 
 
 Section 347. subdivision 3, entitled, " Fees payable to clerks," pro- 
 vides that, " For a return on appeal from a judgment or order two 
 dollars shall be paid to the clerk as court fees," and that is the only 
 provision to be found prescribed in this act to comply with section 317. 
 
 Amendment, when allowed. — See § 313. 
 
 Appeal not in time. — If the appeal was not taken in time, there is 
 no appeal pending, and nothing for the appellate court to dismiss. 
 Raymond v. Richmond, 76 N. Y. 106; Benedict, etc. v. Thayer, 82 N. 
 Y. G10: Carling v. Piircell, 3 Misc. Rep. 55. 
 
 Expiration of time. — The court has no authority to allow an appeal 
 after the time has expired. People v. FAdridge, 7 How. 108. 
 
 Extension of time to appeal. — The court has no power to extend the 
 time. Thorn v. Roods, 47 Hun, 435. 
 
 The time may be extended by stipulation between the parties. Bagley 
 v. Jennings, 33 N. Y. St. Rep. 356, 58 Hun, 57, 19 Civ. Proc. Rep. 199. 
 
 Irregularity of notice of appeal must be taken advantage of by mo- 
 tion to dismiss the appeal. It will not be considered on the argument. 
 Nye v. Ayres, 1 E. D. Smith, 532; Partridge v. Thayer, 2 Sandf. 227. 
 And so when the notice of appeal is not served in time. Mills v. Shult, 
 2 E. D. Smith, 139. See § 313, " Omission to serve one; how supplied; 
 amendment, when allowed.'' 
 
 Judgment must be appealed from in the notice of appeal, not the 
 "decision"' of the justice. Starr v. Silverman, 25 Misc. Rep. 184, 55 
 N. Y. Supp. 611. 
 
 Notice of, when sufficient. — Notice of appeal, to the effect that the 
 plaintiff " appeals to the Appellate Division of the Supreme Court of 
 the State of New York, First Judicial District," — Held sufficient to 
 apprise defendant and to entitle the appeal to be heard by the Appel- 
 late Term, an amendment being granted. Clapp v. Sternglanz, 23 
 Misc. Rep. 641, 52 N. Y. Supp. 156. 
 
 Notice of appeal from this court " to the Supreme Court of the State 
 of New York," is sufficient. Morris v. Hunken, 40 App. Div. 129, 57 
 N. Y. Supp. 712. 
 
 Though under the Charter of New York of 1897, an appeal may be 
 taken to either the Special Term of the Supreme Court or the Appellate 
 Division, from a judgment of the Municipal Court in the borough of 
 Brooklyn, if the appeal is taken to the Special Term, no further appeal 
 to the Appellate Division lies. Manheim v. Seitz, 36 App. Div. 352, 
 55 N. Y. Supp. 321.
 
 40G Appeals. §311. 
 
 Id.; when not sufficient. — Notice of appeal from the decision of a 
 justice of this court, denying defendant's motion to dismiss the com- 
 plaint for a direction of a verdict and for a judgment for defendant on 
 his counterclaim, — Held to bring up nothing for review, the judgment 
 not being appealed from. Starr v. Silverman, 25 .Misc. Rep. 7S4, 55 
 X. V. Sup]., til 1. 
 
 Omission to serve one; how supplied; amendment, when allowed. — 
 See § 313. 
 
 Id.; default; summons not personally served. — Section 2-53 allows 
 the court to open a " default; " strictly there can be no " defaull " on 
 the part of a defendant when he has not been served; his remedy is 
 by appeal, as expressed in this section. 
 
 That a judgment entered by default is not appealable and that a party 
 must seek relief by motion to the court where the action was com- 
 menced, see Briggs v. Bergen, 23 N. Y. 102; Otis v. Spencer, 16 N. Y. 
 610; s. c, 15 How. Pr. 425; Thurber v. Toimsend, 22 N. Y. 517; Perkins 
 v. Famham, 10 How. Pr. 120; Maltby v. Grane, 1 Keyes, 548. 
 
 Notwithstanding the power possessed by this court to open defaults 
 and vacate judgments, an appeal lies to the Appellate Term from a 
 judgment by default where there was no personal service of process. 
 Allison v. The T. A. Snider P. Co., 20 Misc. Rep. 367; Szerlip v. Baier, 21 
 Misc. Rep. 692. See § 3046, Code Civ. Proc., and notes; Burkhard v. 
 Smith, 19 Misc. Rep. 31; Tracy v. Shannon, 22 Abb. N. C. 136. See also 
 Edel v. McCone, 16 Daly, 216. 
 
 Id.; judgment taken by default, opening a, appeal from. — The Ap- 
 pellate Term may in the first instance determine, upon the opposing 
 affidavits, the question of opening a judgment taken by default against 
 a defendant who claims he was not served with the summons and will 
 reverse the judgment if satisfied on the merits ; and defendant is not 
 prejudiced by having paid the judgment simply in submission to the 
 mandate of the court and not by way of compromise, or an agreement 
 not to appeal. Empire, etc. v. Young, 27 Misc. Rep. 226, 57 N. Y. 
 Supp. 753. 
 
 An appeal lies from a judgment taken by default against defendant 
 never served with summons, under Code Civ. Proc., § 3057, authorizing 
 appeals from judgments rendered upon default, where the appeal is 
 taken for error of fact. Iron Clad Mfg. Co. v. Benjamin E. Smith & 
 Sons, 28 Misc. Rep. 172, 59 N. Y. Supp. 332. 
 
 Id.; order, no appeal from. — An appeal does not lie to the Appellate 
 Term from an order of this court vacating a judgment against defend 1 - 
 ant for want of service of summons or appearance, nor from an order 
 vacating a former order and denying the motion therefor. Adolph v. 
 Klein, 23 Misc. Rep. 700, 52 N. Y. Supp. 32. 
 
 It seems that defendant might, in such case, obtain relief by appeal 
 from the judgment under Code Civ. Proc., § 3057.
 
 I 312. Appeals. 407 
 
 Time for appeal. — The time begins to run from the time the judg- 
 ment is actually entered, and not from the date of the decision upon 
 which it was entered. Fuchs v. Pullman, 2 Daly, 210. And see Buerlin 
 v. Hodges, 19 Civ. Proc. Rep. 107; Dorsey v. Pike, 13 Civ. Proc. Rep. 
 147, 4G Hun, 112, 11 N. Y. St. Rep. 227; Young v. Whitcomb, 40 Barb. 
 615; Jennings v. Miller, 10 Misc. Rep. 762; Keller v. Strauss, 34 Misc. 
 Rep. 194; s. c, G8 N. Y. Supp. 777. 
 
 If the appeal was not taken within the time prescribed by statute the 
 notice of appeal served is a nullity. Clapp v. Ilawley, 99 N. Y. G10. 
 
 Judgment was rendered after a trial, but was set aside by the justice 
 on motion within twenty days thereafter and a new trial ordered, but 
 such judgment was subsequently vacated. Held, that the order setting 
 aside the judgment was a nullity, and that the time to appeal ran 
 from the entry of the judgment. Zimmerman v. Blach, 12 Misc. Rep. 
 158. 
 
 The day on which judgment is rendered is to be excluded, and also 
 Sunday when that is the last day. Dorsey v. Pike, 13 Civ. Proc. Rep. 
 147, 40 Hun, 112, 11 N. Y. St. Rep. 227. 
 
 A notice of appeal required to be given within thirty days served on 
 June 27th, appealing from an order of May 27th, was in time. Gallt 
 v. Finch, 24 How. 193. 
 
 § 312. Service of notice upon respondent. — Service of the 
 notice of appeal upon the respondent may be made, by de- 
 livering it in any part of the state, to the respondent per- 
 sonally, or in one of the following methods. 
 
 1. If the respondent is a resident of the city of New York, 
 by leaving it at his residence, with a person of suitable age 
 and discretion. If he is not a resident of the city of New 
 York, and the person who appeared as his attorney upon the 
 trial is a resident thereof, it may be served upon the attor- 
 ney, either personally, or by leaving it at his office or resi- 
 dence, with a person of suitable age and discretion. 
 
 2. If service within the city of New York cannot be 
 made, with due diligence, upon the respondent personally, 
 or in the method prescribed in the foregoing subdivision, 
 the notice of appeal may be served upon him, by delivering 
 it to the clerk of the court in which the judgment was ren- 
 dered, addressed to the respondent. 
 
 Notes to section 312. 
 
 This section is the same as section 3048 of the Code of Civil Pro- 
 cedure, relating to justices' courts, excepting the words "city of New
 
 408 Appeals. §§ 313, 314. 
 
 York " are substituted for the word " county," and " the clerk of the 
 county" for "the clerk of the appellate court." 
 
 Amendment, when allowed. — See § 313. 
 
 Appeal where adverse party has died. — See § 320. 
 
 Manner of service. — See Wells v. Dawson, 7 N. Y. St. Rep. 170, 43 
 Hun, 509; Andrews v. Snyder, 6 Civ. Proc. Rep. 333; Bennett v. Kenyon, 
 5 N. Y. St. Rep. 496. 
 
 Must be served on opposite party. — The notice of appeal cannot be 
 served on the attorney where the client resides in the city of New 
 York. Earll v. Chapman, 3 E. D. Smith, 216. 
 
 Omission to serve one; how supplied; amendment, when allowed. — 
 See § 313. 
 
 Proceeding where party dies pending appeal. — See § 321. 
 
 § 313. Omission to serve one ; how supplied ; amendment when 
 allowed — Where the appellant, seasonably and in good 
 faith, serves the notice of appeal, upon either the clerk or 
 the respondent, but omits, through mistake, inadvertence or 
 excusable neglect, to serve it upon the other, or to do any 
 other act necessary to perfect the appeal, the appellate 
 court, upon proof by affidavit of the facts, may, in its dis- 
 cretion, permit the omission to be supplied, or an amend- 
 ment to be made, upon such terms as justice requires. 
 
 Notes to section 313. 
 
 This section is taken from section 3049 of the Code of Civil Pro- 
 cedure, relating to justices' courts, except the word " clerk " is substi- 
 tuted for " justice." 
 
 Amending notice of appeal. — Amending notice of appeal is discretion- 
 ary with the court. See as to when allowed: Hem v. Roods, 14 N. Y. 
 St. Rep. 345, 47 Hun, 433; Reilly v. Murray, 6 N. Y. St. Rep. 720; Mc- 
 Carthy v. Crowley, 24 N. Y. St. Rep. 815; Gutbrecht v. Pros. Pk., 
 etc., 28 Hun, 497; Boroughs v. Norton, 48 How. 132; Gray v. Wolcott, 
 5 N. Y. St. Rep. 49, 42 Hun, 653; Amos v. Bradley, 15 Week. Dig. 262. 
 
 §314. Undertaking to stay execution upon judgment. — If 
 the appellant desires a stay of execution, he must give a 
 written undertaking, executed by one or more sureties, ap- 
 proved by a justice of the court, to the effect that if the 
 appeal is dismissed, or if judgment is rendered against the 
 appellant in the appellate court, and an execution issued 
 thereupon is returned wholly or partly unsatisfied; the sure-
 
 § 314. Appeals. 409 
 
 ties will pay the amount of the judgment, or the portion 
 thereof remaining' unsatisfied, not exceeding a sum speci- 
 fied in the undertaking, which must be at least one hun- 
 dred dollars, and not less than twice the amount of the judg- 
 ment, or if the judgment of the court is for the recovery of 
 a chattel, that the sureties will pay the sum fixed by that 
 judgment as the value of the chattel, together with the dam- 
 ages, if any, awarded for the taking, withholding, or deten- 
 tion thereof. A copy of the undertaking, with a notice of 
 the delivery thereof, must be served with the notice of ap- 
 peal, and in like manner. Nothing in this section shall be 
 construed to preclude a surety company properly authorized 
 by law to act as such surety or sureties. 
 
 Notes to section 314. 
 
 This section is taken from section 3050 of the Code of Civil Pro- 
 cedure, relating to justices' courts, which made section 1335 of said 
 Code applicable to this court. This latter section has been omitted 
 from this one and is made the next section. The words " with a notice 
 of the delivery thereof " doubtless means delivery to the clerk for filing. 
 The next section uses the words " with notice of the filing thereof." 
 Any justice of this court may now approve the undertaking, instead of 
 as formerly only the justice who rendered the judgment, or a judge of 
 the appellate court. 
 
 The construction of section 3050 of the Code of Civil Procedure, in- 
 cluding and making applicable section 1335 of the Code of Civil Pro- 
 cedure, was decided in Haicley v. Kramer, 35 Misc. Rep. 444, 71 N. Y. 
 Supp. 948. 
 
 Amendment of undertaking can only be had with consent of the 
 sureties. Langley v. Warren, 1 N. Y. 606; s. c, 3 How. Pr. 363; 1 
 Code Rep. Ill; Wilson v. Allen, 3 How. Pr. 369. Consult however 
 Wood v. Kelly, 2 Hilt. 334; Irwin v. Muir, 13 How. Pr. 409; s. c, 4 
 Abb. Pr. 133. See Robinson v. Moran, 23 Week. Dig. 326. 
 
 Duty of justice to approve undertaking. — Where sureties in an un- 
 dertaking are sufficient in law, the justice is judicially bound to ap- 
 prove the undertaking. A judge should have no private reason ; it 
 must be a judicial reason and not an arbitrary, whimsical, capricious 
 reason. O'Connor v. Moschowitz, 48 How. 451. 
 
 Exception to, and justification of, sureties. — By section 70 of this 
 act, sections 106 to 110 and sections 127 and 128 are made applicable 
 to undertakings, sureties, and justification. 
 
 Mistakes, omissions, defects, irregularities, and general rules affect- 
 ing affidavits, bonds, and undertakings. — See notes to § 1, subd. 3.
 
 410 Appeals. §§ 315, 316. 
 
 What is sufficient execution of the undertaking. — See Weisbrod v. 
 M argued, s Abb. X. C. 243. 
 
 § 315. Exception to sureties. — The respondent or his at- 
 torney, may, within five days after the service of a copy of 
 the undertaking with notice of the filing thereof, serve upon 
 the appellant <>r his attorney, a written notice that he ex- 
 cepts to the sufficiency of the sureties. AYithin five days 
 thereafter, the sureties, or other sureties, in a new under- 
 taking to the same effect, must justify before the court in 
 the district in which the judgment was rendered or final 
 order made. At least three days notice of the justification 
 must be given. If the court finds the sureties sufficient, 
 it must indorse its allowance of them upon the undertaking, 
 or a copy thereof. The effect of a failure so to justify and 
 procure an allowance, is the same as if the undertaking had 
 not been given. The court shall also have power, in case 
 it shall be made to appear to its satisfaction, upon motion, 
 that the exception was taken unnecessarily or for purposes 
 of vexation or delay, to set the same aside and approve the 
 undertaking. 
 
 Notes to section 315. 
 
 This section is taken from section 1335 of the Code of Civil Procedure, 
 which was included in section 3050 of said Code, and made applicable 
 to this court, but many radical changes in omissions have been made. 
 The time limit has-been changed; also that it is unnecessary to approve 
 the undertaking, and the appointment of a referee to examine the 
 sureties have been omitted. 
 
 Liability of sureties. — The undertaking mentioned in this section 
 refers to the final judgment in the cause, and the sureties remain liable 
 until that is rendered. Humerton v. Hay, 65 N. Y. 380; Lowery v. Tew, 
 25 Hun, 257. 
 
 The sureties are liable for costs on dismissal of the appeal, as well as 
 where the judgment is affirmed, and they are not released from liability 
 by their failure to justify after being excepted to. McSpedon v. Bouton, 
 5 Daly, 30. See, however, Guisburg v. Kunz, 60 Hun, 504. See to the 
 contrary, Manning v. Gould, 90 N. Y. 476. 
 
 See also notes to § 1, subd. 3. 
 
 § 316. Proceedings; how stayed. — The delivery of the un- 
 dertaking to the clerk of the court in the district in which
 
 § 317. Appeals. 411 
 
 the judgment or final order was entered, and service of a 
 copy thereof, and of notice of delivery thereof, stays the 
 issuing of an execution upon the judgment. If the execu- 
 tion has been issued, the service of a copy of the undertak- 
 ing, certified by the clerk or accompanied with an affidavit, 
 showing that it is a copy, and that the original has been duly 
 filed, upon the officer holding the execution, stays further 
 proceedings thereunder, subject to the provisions of the 
 next preceding section. 
 
 Notes to section 316. 
 
 This section is taken from section 3051 of the Code of Civil Procedure, 
 relating to justices' courts. 
 
 Effect of the stay. — All further proceedings upon the judgment are 
 stayed by the giving of the undertaking, but those already hr.d are not 
 affected by it. If an execution has been issued and a levy made before 
 the appeal is perfected, no sale can be had pending the appeal. The 
 levy is not discharged by the appeal, and the appellant cannot have 
 the goods returned to him. Smith v. Allen, 2 E. D. Smith, 259. See 
 § 1311, Code Civ. Proc. 
 
 Levy upon personal property, when superseded by appeal. — When 
 appeal has been perfected, and the security required to stay execution 
 of the judgment has been given, or where the security given in this 
 court is equal to that required to perfect an appeal to the Court of 
 Appeals, the court may in its discretion, and upon such terms as 
 justice requires, make an order upon notice to the respondent and the 
 sureties in the undertaking, discharging a levy upon personal property, 
 made by virtue of an execution, issued upon the judgment appealed 
 from. But this section does not authorize the discharge of a levy, made 
 by virtue of a warrant of attachment. See § 1311, Code of Civ. Proc. 
 
 §317. Return. — The clerk of the court or his successor 
 in office, must within thirty days from the service of the 
 notice of appeal and the payment of the cost and fees as 
 prescribed in this act, make a return to the appellate court, 
 annex thereto the notice of appeal and the undertaking, if 
 any has been delivered to him, and cause the same to be filed 
 with the clerk of the appellate court. The return must con- 
 tain all the proceedings, including the evidence and the 
 judgment. The stenographer's minutes of the evidence 
 must be furnished to the clerk, by the stenographer, within 
 ten days after the fees therefor have been paid. Such re-
 
 41-' Appeals. §317. 
 
 turn must have indorsed thereon the allowance of the jus- 
 tice before whom the action or proceeding was tried. 
 
 Notes to section 317. 
 
 This section is taken from section 3053 of the Code of Civil Pro- 
 cedure, relating to justices' courts. 
 
 There is no provision for " the payment of the ' costs ' and fees a.* 
 prescribed in this act." It is nowhere prescribed in this act that " the 
 cost," or the costs are to be paid, or to whom. Section 347, subdivision 
 3, is a provision for the payment to '" clerks " of the court, " for a 
 return upon an appeal from a judgment, or order, two dollars." 
 
 See note to § 311. 
 
 Amending or correcting return can be done by motion to the court. 
 Spence v. Beck, 1 Hilt. 276; Kilpatrick v. Carr, 2 Abb. Pr. 117; Mitchell 
 V. Menkle, 1 Hilt. 142; Kelly v. Browcr, 1 Hilt. 514. 
 
 The averment that it is untrue, or incorrect, and defective in its 
 statements, or that it contains immaterial matters, is insufficient. Nor 
 is the fact that the attorney for the defendant drew it up, and that 
 it was afterward "corrected, altered, and fixed" by the justice, unless 
 abuse is clearly shown. Smith v. Johnson, 30 How. Pr. 374; Hunter v. 
 Graves, 4 Cow. 437. 
 
 When it does not state the pleadings in substance, or set them forth, 
 a copy of them should be annexed and referred to. Spring v. Baker, 1 
 Hilt. 526; Smith v. Van Brunt, 2 E. D. Smith, 534. 
 
 Where it did not show in what manner a material question in the 
 matter of the admissibility of evidence had been disposed of, the case 
 must be put over for an amended return. Matthews v. Fiestel, 2 E. D. 
 Smith, 90. 
 
 Where it sets forth the evidence in detail, it is to be considered as 
 stating the whole testimony, unless the contrary distinctly appears. 
 Orcutt v. Cahill, 24 N. Y. 578. The fact that it was proved that a for- 
 mer trial has been had between the same parties, when the return does 
 not show how such trial terminated, will not Avarrant the reversal of 
 the judgment upon an issue there, on a plea of " former judgment." 
 Morrill v. Whitehead, 4 E. D. Smith, 239. 
 
 Id.; cause of action. — Plaintiff having recovered a money judgment 
 for the last installments due on a conditional sale, by default, the return 
 cannot thereafter be amended so as to make the cause of action con- 
 version, though plaintiff might originally have sued therefor. Mala- 
 wista v. Malzoni, 35 Misc. Rep. 295, 71 N. Y. Supp. 771. 
 
 Id.; conflict. — The return must govern where the affidavits of the 
 parties are in conflict, as to whether an adjournment was made on the 
 18th or 19th. Kelly v. Brower, 1 Hilt. 514. 
 
 Id.; voluntary amendment by justice. — Upon an appeal, the return 
 of the justice should not be altered or added to by him without applying
 
 § 317. Appeals. 413 
 
 for leave of court. If he voluntarily make an amended or supplemental 
 return, the court may direct it to be taken from the files. Zabriskie v. 
 Wilder, 12 Daly, 527; s. c, 67 How. Pr. 311. This case is distinguished 
 in Thomas v. Whitelegge, 39 N. Y. St. Rep. 89; s. c, 14 N. Y. Supp. 779 
 
 Id.; when too late. — It is too late to ask for an amendment of a 
 return after the appellate court has intimated or announced its decision 
 on the questions presented by the return as filed. Warren v. Campbell 
 et al., 9 Daly, 762; s. c, 14 N. Y. Supp. 165; Persons v. Campbell et al., 
 9 Daly, 762. 
 
 Attacking return. — Where the return to an appeal taken on the 
 ground of an unauthorized appearance shows that the appellant was 
 personally present in court and examined as a witness in behalf of the 
 defendants, there being but one other defendant beside himself, such 
 return cannot be attacked by affidavits. Jennings v. Miller, 10 Misc. 
 Rep. 762. 
 
 Conclusive on argument of appeal. — The appeal should not be argued 
 until the return is complete, for it is conclusive as to what transpired 
 at the trial. McAllister v. Sexton, 4 E. D. Smith, 41; Kilpatrick v. 
 €arr, 3 Abb. Pr. 117. 
 
 The appellate court cannot look beyond the return — although the ap- 
 pellant produces affidavits of facts which, had they appeared in the 
 return, would require a reversal of judgment. Trust v. Delaplaine, 3 
 E. D. Smith, 219. The appellate court is controlled by the return, in 
 determining what instructions the charge contained. Garrison v. 
 Pearce, 3 E. D. Smith, 255; Barbar v. Stettheimer, 13 Hun, 19c 
 
 Contradictory statement in return; reversal. — The return stated 
 that judgment was rendered in favor of the plaintiff, " as set forth in 
 the judgment annexed." No judgment was annexed, except a memoran- 
 dum reciting certain items of claim, and concluding: "Therefore, judg- 
 ment for defendant, that he retain possession of one roan horse to satisfy 
 a lien of $25." Held, that such judgment would be reversed. Lees v. 
 Pitney, 27 N. Y. Supp. 972. 
 
 Contents of return. — The return should set forth when the summons 
 or process was returnable, the day on which issue was joined, the ad- 
 journments, if any, the date of the trial, and the day whereon judgment 
 was rendered (Peters v. Diossy, 3 E. D. Smith, 115) ; the pleadings and 
 all the evidence, documentary and parol, used on the trial'. Ogden v. 
 Sanderson, 3 E. D. Smith, 167; Roulston v. McClelland, 2 E. D. Smith, 
 60. See also Smith v. Tan Brunt, 2 E. D. Smith, 534; Orcutt v. 
 Cahill, 24 N. Y. 578; Low v. Payne, 4 N. Y. 247; Prosser v. Seen, 
 5 Barb.' 607; McCaffrey v. Kelley, 2 Sandf. 637; Belsham v. Coolie, 
 1 E. D. Smith, 213. Where judgment is rendered without proof, 
 and on default, upon a return of the personal service of a summons 
 and complaint, it should show that a copy of the complaint was 
 served, verified by the party pleading, or his agent or attorney, as the
 
 414 Appeals. §317. 
 
 case may be. A mere return that a summons was served with the com- 
 plaint is not sufficient. Spring v. Baker, 1 Hilt. .~>2t',. Where objection 
 is taken to the sufficiency of the summons, it should properly set forth 
 the summons, instead of giving a mere abstract of it. A copy of the 
 summons would have been the proper return to submit. Silkman V. 
 Boiger, 4 E. J). Smith, 236. 
 
 The return must sh< w what judgment was rendered, or the appeal 
 will be dismissed with costs. Woodside v. Pender, 2 E. D. Smith, 300. 
 Contra, Klenck v. De Forrest, 3 Code Rep. 185. 
 
 Where an account was demanded on joining issue, the return should 
 show that it was ordered to be exhibited or stated, or an objection to 
 evidence based upon the demand, and neglect to furnish cannot prevail 
 upon appeal. Rouen v. Rosenthal, 22 Misc. Rep. 143. 
 
 Defective return. — If the return has not the notice of appeal at- 
 tached, or does not show what judgment was rendered, the appeal will 
 b3 dismissed. Cabre v. Sturges, 1 Hilt. 100; Davis v. X. Y. & lyric A'. R. 
 Co., 1 Hilt. 543; Bush v. Oennison, 14 How. Pr. 307; Woodside v. Pen- 
 der, 2 E. D. Smith 390; Klenck v. De Forrest, 3 Code Rep. 185. 
 
 Affidavits cannot be used to support a defective return. McAllister 
 v. Sexton, 4 E. D. Smith, 41; Hyland v. Sherman, 2 E. D. Smith, 235; 
 Trust v. Delaplaine, 3 E. D. Smith, 219; Rawson v. Grow, 4 E. D. Smith, 
 18; Kirkpatrick v. Carr, 3 Abb. Pr. 117. Xor to modify or impeach 
 it. Lynsky v. Pendergast, 2 E. D. Smith, 43; Kirkpatriek v. Carr, 3 
 Abb. Pr. 117; Capewell v. Ormsby, 2 E. D. Smith, 180; Bates v. Conk- 
 ling, 10 Wend. 289. The rule is the same with regard to the charge 
 to the jury. Garrison v. Pierce, 3 E. D. Smith, 255. 
 
 Denial of service of summons. — Section 3040, Code of Civil Procedure 
 (now section 311 of this act), allows an appeal "wherein he did not 
 appear and the summons was not personally served upon him." In such 
 a case a return by the justice, stating whether the defendant appeared 
 or not, is indispensable. Jennings v. Miller, Bischoff. J., Special Term, 
 N. Y. Law Journal, Dec. 20, 1894, afterward heard on the return and re- 
 ported in 10 Misc. Rep. 762. See a'so Vallen v. McGuire, 18 N. Y. St. 
 Rep. 410, 49 Hun, 594; Gibbons v. Van Alstine, 29 N. Y. St. Rep. 461. 
 
 Evidence excluded. — A party may compel the return of e\ idence 
 stricken out, in order that he may bring more distinctly before the ap- 
 pellate court the points relied upon for a reversal of the decision. 
 Smith v. Johnston, 30 How. Pr. 374. 
 
 Id.; omission of, in return; remedy. — A judgment cannot be reversed 
 on appeal, on the alleged ground that it is without evidence to support 
 it, or that it is against the evidence, or the weight of evidence, if it 
 affirmatively appears from the justice's return that material evidence 
 adduced on the trial is omitted, and that the respondent could not 
 have caused the omission to be supplied by means ot an amended return. 
 In such case, appellant should make application on the argument of the
 
 § 317. ArPEALs. 415 
 
 appeal, under sections 305C and 3213 of the Code, to be allowed to es- 
 tablish the lost evidence by affidavits or the examination of witnesses. 
 McGovern v. Eldredge, 48 N. Y. St. Rep. 092. 
 
 Extension; time to file return. — The time to file the return on ap- 
 peal from a final order in summary proceedings to recover possession 
 of premises alleged to be used as a bawdy-house will not be extended 
 where the appeal is taken only upon technical grounds, it being con- 
 ceded that the evidence establishes the charge, and the only excuse of- 
 fered is that the attorney was engaged in various courts and places, and 
 the want of a male stenographer to transcribe the notes. Goelet et al. 
 v. Julia Laiclor et al., 19 Misc. Rep. 540. 
 
 Failure to file return. — A motion may be made to dismiss the appeal. 
 See Rule III, Supreme Court, Appellate Term (to be found under this 
 section). 
 
 False return; liability of justice. — The justice is liable for a false 
 return, for any damages which a party may sustain. He acts minis- 
 terially. McDonnell v. Buffum, 31 How. Pr. 154; Houghton v. Swart- 
 out, 1 Den. 589; Tompkins v. Sands, 8 Wend. 402; Cunningham v. Buck- 
 lin, 8 Cow. 178; Scott v. Rushman, 1 Cow. 202. 
 
 Fee for return, nonpayment of, is ground for dismissal, when the 
 return is not made for that reason. Van Henson v. Kirk pat rick, 5 
 How. Pr. 422. See § 347, subd. 3. 
 
 Further return. — There is no express provision for a further return 
 as was formerly provided by section 3055 of the Code of Civil Procedure ; 
 such return can probably be enforced under that section by section 20 
 of this act, or by motion for an amended return. 
 
 Motion to dismiss appeal. — Rule III of the Supreme Court for the 
 Appellate Term provides for the making of such motion, and that it 
 be made at the Appellate Term. 
 
 Where the appellant, although given an opportunity to do so, fails 
 to procure a return which includes the evidence, a motion to dismiss 
 the appeal on the ground of failure to procure the filing of the return 
 should be granted. Orlando v. Piano, 20 Misc. Rep. 369. 
 
 Order to show cause. — Where a party obtains an order requiring a 
 justice to amend his return or show cause, the justice is authorized 
 to immediately file his amended return, and this alternative portion 
 of the order is not an adjudication in advance by the court upon a 
 contested motion. Where a justice is served with an order to make 
 an amended retr.rn to his return on appeal, or show cause, and make 
 his return, it cannot be vacated on the ground that the order was 
 obtained through irregularity or fraud ; the remedy of the party ag- 
 grieved is to move for a further amended return, or to proceed against 
 the justice for a false return. An order requiring a justice to make 
 an amended return or show cause, returnable in more than eight 
 days, is not irregular under section 780 of the Code. Thomas et al. v.
 
 416 Appeals. §318. 
 
 Whitelegge. 39 N. Y. St. Rep. 89; s. c, 14 N. Y. Supp. 779, distin- 
 guishing Zabriskie v. Wilder, 12 Daly, 527. 
 
 Original or certified copy; lost return. — An original or a certified 
 copy of the return must be produced on the argument, or the court 
 will refuse to hear the appeal. In case it is lost, a new one should 
 be procured. Smith v. Van Brunt, 2 E. D. Smith, 534. 
 
 Rules as to return on appeal. — The justices of the Appellate Divi- 
 sion of the Supreme Court have made seven rules for the hearing of 
 appeals by the Appellate Term. It will be observed that these rules 
 are not made by the justices of the Appellate Term. See these rules, 
 pp. 434, 435. Rule II provides that no appeal shall be placed upon the 
 calendar unless the return is filed eight days before the term commences. 
 Rule III provides if the return is not filed as prescribed in section 3053 
 of the Code of Civil Procedure (now this section) , the respondent may 
 move to dismiss the appeal, and if the court below shall not have made 
 the return, the appellant may move on the first day of the term to 
 compel such return by attachment. See also §§ 318 and 325. 
 
 Stenographer's minutes lost. — "Where the return of the justice did 
 not contain any of the evidence, the stenographer's minutes having 
 been lost or destroyed, — Held, that the parties could submit affidavits 
 as to the evidence offered at the trial, in accordance with the Cod8 
 of Civil Procedure, section 3056. Walker v. Bacrmann, 47 App. Div. 
 635, 62 N. Y. Supp. 414. - 
 
 Sufficient. — A certificate on appeal from this court, that counsel 
 summed up the case " and thereupon submitted to the jury for its 
 decision," — Held sufficiently to show that the issues were determined 
 by the jury. Morgan v. Metropolitan Street Ry. Co., 51 App. Div. 633, 
 64 iST. Y. Supp. 826. 
 
 Unauthorized appeal. — A motion made to dismiss an appeal of this 
 character must be granted. Robb v. Osgoodby, 20 Misc. Rep. 622. 
 
 § 318. Settlement of case on appeal. — Immediately upon re- 
 ceiving the minutes from the stenographer, as provided in 
 the next preceding section, the clerk of the court shall cause 
 notice of that fact to be sent to the attorney for the appel- 
 lant, or to the appellant if he has not appeared by attorney. 
 The appellant or his attorney shall then procure the case to 
 be settled on a written notice of at least three days, served 
 in the manner provided for the serving of a notice of ap- 
 peal, or on the attorney for the respondent, and made re- 
 turnable before the justice who tried the case, in the court 
 house in the district in which said justice may thon be sit- 
 ting. Said justice shall thereupon within five days, settle
 
 §§ 319, 320. Appeals. 417 
 
 the case or exceptions upon it, if there be any, and indorse 
 the return, as provided in the next preceding section. After 
 a justice is out of office, he may settle the case or exceptions 
 or make any return of proceedings had before him while he 
 was in office, and may be compelled so to do by the appel- 
 late court. 
 
 Notes to section 318. 
 
 This section is new. The portion relating to the settlement of a 
 case on appeal, after a justice is out of office, is taken from section 2.3 
 of the Code of Civil Procedure. See § 3054, Code Civ. Proa, en- 
 titled " When justice has gone out of office," relating to justices' 
 courts, which is similar. 
 
 This section is not intended to assimilate the practice in this court 
 to that in courts of record, for it will be observed that there is no 
 provision for a proposed case, or proposed amendments. When the 
 stenographer's minutes have been furnished to the clerk, he shall 
 immediately notify the appellant of that fact, and the appellant shall 
 notify the respondent. The parties, or their attorneys, then appear 
 before the justice, and they are heard as to the settlement of the case; 
 this will make the case, or return on appeal, more perfect than here- 
 tofore, when the justice alone, and unaided, made up the return, and 
 will prevent multiplicity of motions to correct or amend the return. 
 The parties have had their day in court before the justice as to what 
 the return, or case on appeal, shall contain, and as to its correctness, 
 which was not the case heretofore, and this should end all further 
 hearings on motion about the contents or correctness of the return. 
 
 See also Rule 20, "Rules of Practice," p. 111. 
 
 § 319. When justice is dead, et cetera. — If the justice dies, 
 becomes a lunatic, absconds, removes from the state, or 
 otherwise becomes unable to make the return, the appellate 
 court may receive affidavits, or examine witnesses, as to the 
 evidence and other proceedings taken, and the judgment 
 rendered, before the justice; and may determine the appeal, 
 as if a return had been duly made by the justice. 
 
 Note to section 319. 
 
 This section is the same as section 3056 of the Code of Civil Pro- 
 cedure, relating to justices' courts. 
 
 § 320. Appeal when adverse party has died — Where the 
 adverse party has died, since the making of the order, or the 
 
 27
 
 418 Appeals. * §321. 
 
 rendering of the judgment appealed from, or where the 
 judgment appealed from was rendered, after his death, in 
 a case prescribed by law, an appeal may be taken, as if he 
 was living; but it cannot be heard, until the heir, devisee, 
 executor, or administrator, as the case requires, has been 
 substituted as the respondent or appellant. In such a case 
 an undertaking required to perfect the appeal, or to stay 
 the execution of the judgment or order appealed from, 
 must recite the fact of the adverse party's death; and the 
 undertaking enures, after substitution to the benefit of the 
 person substituted. 
 
 Note to section 320. 
 
 This section is substantially the same as section 1297 of the Code 
 of Civil Procedure. 
 
 § 321. Proceedings when party dies pending appeal. — 
 Where either party to an appeal dies before the appeal is 
 heard, if an order, substituting another person in his place, 
 is not made within three months after his death, the court 
 in which the appeal is pending, may, in its discretion, make 
 an order requiring all persons interested in the decedents 
 estate, to show cause before it why the judgment or order 
 appealed from should not be reversed or affirmed or the 
 appeal dismissed, as the case requires. The order must 
 specify a day when cause is to be shown, which must not 
 be less than six months after making the order; and it must 
 designate the mode of giving notice to the persons interested. 
 Upon the return day of the order, or at a subsequent day, 
 appointed by the court if the proper person has not been 
 substituted, the court, upon proof by affidavit, that notice 
 has been given, as required by the order, may reverse or 
 affirm the judgment or order appealed from, or dismiss the 
 appeal, or make such further order in the premises as the 
 case requires. 
 
 Note to section 321. 
 
 This section is taken from section 1298 of the Code of Civil Pro- 
 cedure.
 
 §§ 322, 323. Appeals. 419 
 
 § 322. Order of substitution. — Where personal service of 
 notice of application for an order has been made, within 
 the city, upon the proper representative of the decedent, 
 an order of substitution may be made, upon the application 
 of the surviving party. 
 
 Note to section 322. 
 
 This section is taken from section 1299 of the Code of Civil Pro- 
 cedure. 
 
 § 323. Restitution upon reversal. — Where the judgment or 
 final order is reversed or modified, the appellate court may 
 make or compel restitution of property or of a right, lost 
 by means of the erroneous judgment ; but not so as to affect 
 the title of a purchaser, in good faith and for value, or 
 property sold by virtue of a warrant of attachment in the 
 action, or an execution issued upon the judgment. In that 
 case, the appellate court may compel the value, or the pur- 
 chase price to be restored, or deposited to abide the event 
 of the action, as justice requires. Six days' notice of an 
 application for an order for restitution must be given; and, 
 if the application is granted before judgment, the proper 
 direction may be included therein. 
 
 Notes to section 323. 
 
 This section is the same as section 3058 of the Code of Civil Pro- 
 cedure, relating to justices' courts, except that the words " of the jus- 
 tice " are omitted. 
 
 Action. — Section 3058 of the Code of Civil Procedure was enacted 
 to furnish additional means of enforcing the common-law right of 
 restitution. The remedies prescribed therefor are not exclusive, and 
 a party entitled to restitution may obtain relief by action. Huebler 
 V. Myers, 132 N. Y. 363. 
 
 Notice of motion. — An application for restitution of the amount of 
 a judgment erroneously rendered against defendant in this court, and 
 paid, made on appeal from the judgment, cannot be entertained, as 
 six days' notice must be given under Code Civ. Proc, § 3058. Darcey 
 v. Steger, 23 Misc. Rep. 145, 50 N. Y. Supp. 638. 
 
 Practice in such cases explained. See dishing v. Vandcrhilt, 7 Daly, 
 512. See also Marvin v. Brewster Mining Co., 56 N. Y. 671; Estus v. 
 Baldicin. 9 How. 80.
 
 420 Appeals. §§324,325. 
 
 § 324. Setting off costs and recovery. — If, upon the appeal, 
 a sum of money is awarded to one party, and costs are 
 awarded to the adverse party, the appellate court must set 
 off the one against the other, and render judgment for the 
 balance. 
 
 Note to section 324. 
 
 This section is the same as section 3059 of the Code of Civil Pro- 
 cedure, relating to justices' courts. 
 
 § 325. Hearing on appeal, dismissal thereof; reversal on 
 stipulation. — Within twenty days after the service of a no- 
 tice of appeal on the respondent, he may serve upon the 
 appellant or his attorney, a written stipulation that the judg- 
 ment appealed from may be reversed with five dollars' costs 
 and disbursements of the appeal, and thereafter no further 
 steps shall be taken in such appeal, except to enter judgment 
 in pursuance of such stipulation for the enforcement thereof; 
 in ease such stipulation shall not be served, the appeal may 
 be brought to a hearing in the appellate court at any term 
 thereof, at which such an appeal can be heard, held after 
 the return is filed, upon a notice by either party, of not less 
 than eight days. It must be placed upon the calendar, and 
 must continue thereupon without further notice until it is 
 finally disposed of. If, after being regularly placed upon 
 the calendar, neither party brings it to a hearing before the 
 end of the second term thereafter at which it might lie 
 noticed for hearing and heard, the court must dismiss the 
 appeal unless it directs the same to be continued for cause 
 shown. 
 
 Notes to section 325. 
 
 This section is taken from section 30f>2 of the Code of Civil Pro- 
 cedure, relating to justices' courts. 
 
 Motion to dismiss appeals must be made before the Appellate Term 
 as required by Rule III of the Supreme Court, Appellate Term, to be 
 found on p. 434. 
 
 Points should be furnished by counsel on the submission of' an appeal, 
 and the court referred to such authorities as are relied on. De Agreda 
 v, Faulberg, 3 E. I). Smith. 178. Where no papers specifying the 
 grounds of appeal, and no points or arguments are presented on behalf 
 of the appellant, calling the attention of the court to any grounds for
 
 §§ 326, 327. _ Appeals. 421 
 
 sustaining the appeal, the court, if it sees that justice has apparently 
 been done, will not be ingenious to discover errors in the proceedings 
 below, but will rather assume that if the appellant or his counsel can- 
 not discover and point out errors, none exist. Suydam v. Munson, 2 
 E. D. Smith, 198. 
 
 Where, on appeal from a judgment, the appellant's counsel in his 
 points takes no notice of the exceptions taken on the trial, the court 
 may refuse to consider them. Mierson v. Mayor, Daly, 74. 
 
 Ready for argument. — The appellate court requires both parties to 
 be ready for argument when the case is called. Engagements of coun- 
 sel are not considered an excuse for postponing the hearing. Tryon 
 v. Jennings, 12 Abb. Pr. 33; s. c, 22 How. Pr. 421; Rule III, to be 
 found on p. 434. 
 
 Waiver of motion to dismiss. — When the respondent generally ap- 
 pears in the appellate court, and notices the appeal for argument, these 
 are positive acts of submission to that tribunal, inconsistent with a 
 claim that the appeal was not brought in time. In such a case he can- 
 not have the appeal dismissed. Pearson v. Lovejoy, 35 How. Pr. 193; 
 s. c, 53 Barb. 407. 
 
 § 326. Judgment. — In a case specified in this act, the ap- 
 peal must be heard upon the original papers, or a certified 
 copy thereof, and a copy or copies thereof need not be fur- 
 nished for the use of the court. The appellate court must 
 render judgment according to the justice of the case, without 
 regard to technical errors or defects which do not affect the 
 merits. It may affirm or reverse the judgment of the mu- 
 nicipal court, in whole or in part, and as to any or all of the 
 parties, and for errors of law or of fact, and where the judg- 
 ment is contrary to or against the weight of evidence, the 
 appellate court may, upon its reversal of a judgment, order 
 a new trial as prescribed in this act. 
 
 Notes to section 326. 
 
 This section is taken from section 3063 of the Code of Civil Pro- 
 cedure, relating to justices' courts. See also § 310, as to powers on 
 appeal. 
 
 See cases on this section, Tuttle v. Dennis, 58 Hun, 39 ; Southard v. 
 Becker, 15 Misc. Rep. 438; Merris v. Hurst, 71 Hun, 483; McLaughlin 
 v. Harriot, 14 Misc. Rep. 344; Frink v. Steven, 88 Hun, 283. 
 
 § 327. Clerk appellate court to return papers, et cetera. — 
 Upon the rendering of judgment of the appellate court,
 
 4:2-2 Appeals. § 327. 
 
 affirming, modifying or reversing a judgment or order of the 
 municipal court, the clerk of the appellate court, shall return 
 to the district of the municipal court from which the appeal 
 was taken, all the papers on tile in his office making up the 
 judgment-roll of said action or proceeding. 
 
 Notes to section 327. 
 
 This section is new and is similar to a remittitur. 
 
 WHAT IS APPEALABLE. 
 
 See also notes to § 310. 
 
 Adjournments, illegal, appearing on the face of the record. Chcvra 
 Brei, etc. v. Chevra Bikur, etc., 23 Misc. Rep. 367, 51 N. Y. Supp. 2:5(5. 
 
 Amendment. — Refusal to allow at any time before, or during the 
 trial. King v. Darmann, 26 Misc. Rep. 133, 55 N. Y. Supp. 87G. 
 
 Discontinuance. — Refusal to allow. Goldberg v. Victor, 2(5 Misc. Rep. 
 72S. 5t5 N. Y. Supp. 1044. 
 
 Id.— At close of testimony. Exception necessary. Transcendent L. 
 Co. v. Stvrtz, 35 Misc. Rep. 305, 71 N. Y. Supp. 947. 
 
 Irregularity in issue of alias summons. Loeb v. Smith, 24 Misc. 
 Rep. 200, 52 N. Y. Supp. 677. 
 
 Jurisdiction. — Judgment void for irregularity in the issue of alias 
 summons. Loeb v. Smith, 24 Misc. Rep. 200, 52 N. Y. Supp. 677. 
 
 Orders. — Appeals from, are allowed by sections 253 and 257. See 
 notes to § 310. 
 
 WHEN APPEAL WILL NOT LIE AND QUESTIONS NOT REVIEW- 
 ABLE. 
 
 Amendments on appellant's request. Orser v. Grossman, 11 How. Pr. 
 250; s. c, 4 E. D. Smith, 443. 
 
 Conflicting evidence; prejudice, passion, partiality. — The determina- 
 tion upon conflicting evidence is not the subject of review on appeal 
 unless it appears there was influence by prejudice, passion, or partial- 
 ity. Goodman v. Riccadonne, 13 Misc. Rep. (5(5. 
 
 Defective pleadings.— Tift v. Tift, 4 Den. 175; Neff v. Clute, 12 Barb. 
 66; Bell v. Davis, 8 Barb. 210; Hall v. McKechnie, 22 Barb. 245; 
 Young v. Rummell, 5 Hill, 60. 
 
 Denial of motion; leave to renew; judgment entered meanwhile. — 
 The remedy is to move to open the judgment — an appeal from it will 
 not lie. Edelson v. Epstein, 27 Misc. Rep. 543, 58 N. Y. Supp. 334. 
 
 Discretion. — Matters resting in the discretion of the court are not 
 reviewable, unless they affect a substantial right. Mitchell v. Menlcle,
 
 Appeals. 423 
 
 1 Hilt. 142; Brown v. Jones, 3 Abb. Pr. 80; s. c, 1 Hilt. 204; Keller 
 v. Feldman, 49 N. Y. St. Rep. 718; Tooker v. Booth, 7 Misc. Rep. 421; 
 Marry v. (7o#m, 11 Daly, 180. 
 
 As to what is proper legal discretion, see O'Connor v. Moschowitz, 
 48 How. 451. 
 
 Order vacating order opening default for noncompliance with condi- 
 tions. — Appeal will not lie from the second order. Schwartz v. 
 Schendel, 23 Misc. 47, 51 N. Y. Supp. 415. 
 
 Id. — Vacating a judgment on the ground that there had been no 
 service or voluntary appearance, nor from an order vacating the first 
 order and denying the original motion. Adolph v. Klein, 23 Misc. Rep. 
 700; s. c, 52 N. Y. Supp. 32. 
 
 WHAT OBJECTIONS MAY BE RAISED ON THE APPEAL. 
 
 Assumption of fact not proven. — Lee v. Schmidt, 1 Hilt. 537. 
 injustice was done, although no exception was taken. Maier v. Homctn, 
 4 Daly, 168. 
 
 Jury trial. — Denial of, although no exception was taken. Meech v. 
 Brown, 1 Hilt. 257; s. c, 4 Abb. Pr. 19. 
 
 Dismiss complaint at close of testimony. — In considering an appeal 
 the court is not concluded by the absence of such a motion. The Bos- 
 ton, etc. v. The Metropolitan, etc., 14 Misc. Rep. 571. 
 
 Unanswerable. — An objection which the opposite party could not 
 have answered by further evidence, or by any act on his part. Tift v. 
 Tift, 4 Den. 175; Newcomb v. Clarke, 1 Den. 226; Pepper v. Haight, 
 20 Barb. 429. 
 
 WHAT OBJECTIONS CANNOT BE RAISED FOR THE FIRST TIME 
 
 ON APPEAL. 
 
 Jurisdiction is waived, unless raised in court below. See Bang v. 
 McEvoij, 52 App. Div. 501. 
 
 Objections or proof which might have been obviated at the trial, if 
 objection had then been made. Binsse v. Wood, 37 N. Y. 532 ; Thayer 
 v. Marsh, 75 N. Y. 540; Blair v. Flack, 141 N. Y. 56; Bliss v. Sickles, 
 142 N. Y. 648; Appleton v. Welch, 20 Misc. Rep. 343. 
 
 Id.; must be specific. — The court does not favor a deceptive, secret, 
 or unfair mode of raising an objection; and therefore such objections 
 as could have been fairly answered if they had been seasonably made, 
 will be disregarded, if not specifically taken below. Coon v. Syracuse 
 d Utica R. R. Co., 5 N. Y. 492; Dayharsh v. Enos, 5 N. Y. 531: Peck 
 v. Richmond, 2 E. D. Smith, 381; Barnes v. Perrine, 12 N. Y. 18; 
 Fowler v. Clearwater, 35 Barb. 143. 
 
 When an irregularity is objected to, or when improper evidence is 
 offered, the party objecting must fully, clearly, and distinctly state
 
 424 Appeals. 
 
 the grounds of objection. A general objection may be sufficient in 
 some cases, as, for instance, where the objection could not have been 
 obviated had it been specifically pointed out. Merritt v. Seaman, 6 
 N. Y. 1G8. Where an objection is general and the evidence is proper, 
 but the mode of proving it is improper, the court will presume that 
 the objection is not made to the manner, but the matter, and the ob- 
 jection will be unavailing. Belloics v. Sackett, 15 Barb. 90. 
 
 Wrong district. — The objection that the defendant did not reside 
 within the judicial district. Weuthen v. Eyelis, 33 Misc. Rep. 98. 67 
 N. Y. Supp. 246, 8 N. Y. Annot. Cas. 372; Barker v. Archer, 4«> App. 
 Div. 80, 63 N. Y. Supp. 298; Koekle v. Pangborn, 33 Misc. Rep. 476, 
 67 N. Y. Supp. 898. 
 
 WHEN JUDGMENT WILL BE AFFIRMED. 
 
 Account or bill of particulars, refusal to furnish, is no ground for 
 reversal. See Rosen v. Rosenthal, 22 Misc. Rep. 143, 48 N. Y. Supp. 
 790. 
 
 Adjourn, refusal to, no ground for reversing judgment. Onderdonk 
 v. Ranlett, 3 Hilt. 323; Irroy v. Nathan, 4 E. D. Smith, 68; Decker v. 
 Russel, 26 How. Pr. 528. 
 
 Amendment from breach of contract to tort is no ground for reversal. 
 Doughty v. Crozicr, 9. Abb. Pr. 411. See however Andrews v. Bond, 1G 
 Barb. 633. 
 
 Id., refusal to allow, can only be when no injustice would result from 
 granting the application. A motion made on the trial to amend an 
 answer so as to add a new defense is properly refused. Tattcrsall v. 
 Hass, 1 Hilt. 56; Waldheim v. Sichel, 1 Hilt. 45. 
 
 Appellant not appearing; default. — An appeal was noticed for argu- 
 ment, and placed on the calendar by the appellant. On the case being 
 called, the appellant not appearing, the judgment was affirmed by de- 
 fault, on motion of the respondent, and without any proof being re- 
 quired of his having noticed the appeal for argument. Held regular. 
 Townsend v. Keenan, 2 Hilt. 544. See also Luft v. Graham, 44 How. 
 Pr. 152. 
 
 The court will affirm the judgment, if the appellant does not appear 
 to argue the appeal. Oeraghty v. M alone, 1 Code Rep. 674; Bellony v. 
 Alexander, 1 Code Rep. 64; Toivnsend v. Keenan, 2 Hilt. 545. 
 
 If respondent fails to appear the appellant may either argue or sub- 
 mit his case, but judgment of reversal by default will not be allowed. 
 Rule VI, Supreme Court Rules for Appellate Term. See p. 435. 
 
 Bias, corruption, palpable mistake, partiality, passion, prejudice, con- 
 flicting, and weight of evidence. — A judgment rendered upon conflicting 
 evidence will not be reversed, though the number of witnesses, but 
 not necessarily the weight of evidence, preponderates against it, in 
 the absence of apparent mistake, or bias prejudice, passion, or corrup-
 
 Appeals. 425 
 
 tion. Manhattan F. A. Co. v. Weber, 22 Misc. Rep. 729, 50 N. Y. 
 Supp. 42; Herman v. Goldsand, 22 Misc. Rep. 735, 49 N. Y. Supp. 1098; 
 Morgan v. Enright, 22 Misc. Rep. 737, 49 N. Y. Supp. HOG. 
 
 Charging jury. — Omission or refusal of the justice to do so is not 
 error. Pettit v. Ide, 12 Abb. Pr. 44. 
 
 Contract and tort. — A judgment will not be reversed though on the 
 ground that a complaint which was for a conversion, relied on an im- 
 plied contract, the evidence could only support an action for tort, where 
 it appears that the defendant was not misled. Doughty v. Crozier, 9 
 Abb. Pr. 411. 
 
 Credibility and veracity of witnesses. — The judgment will not be 
 disturbed, when the credibility of the witnesses respectively is the 
 determining factor (Kenke v. Standard Oil Co., 25 Misc. Rep. 761, 54 
 N. Y. Supp. 124) ; or upon an estimate of the relative veracity of the 
 witnesses. Fajen v. German D. F. Church, 27 Misc. Rep. 797. 
 
 Cross-appeal. — The respondent must bring cross-appeal to take ad- 
 vantage of error. Where this is not done, and the return clearly shows 
 that an error was committed, it will furnish no ground for reversing 
 the judgment. Bobbins v. Codman, 4 E. D. Smith, 316; Glassner v. 
 Wheaton, 2 E. D. Smith, 352; Lee v. Schmidt. 13 Abb. Pr. 183; s. c, 
 1 Hilt. 537 ; Berrian v. Elmstead, 4 E. D. Smith, 279. 
 
 Evidence on the appeal cannot be received for the purpose of revers- 
 ing a judgment, though it may be received to sustain one. Flanagan 
 v. Callanan, 22 Misc. Rep. 139, 48 N. Y. Supp. 708. 
 
 Id.; conflicting; injustice done. — A judgment rendered upon conflict- 
 ing evidence will not be reversed unless it is clear that injustice has 
 been done. Paterson Gas Co. v. Lichtenstein, 9 Misc. Rep. 126; Mit- 
 chell Vance Co. v. Dalker, 46 N. Y. St. Rep. 189; s. c, 19 N". Y. Supp. 
 378; Goodman v. Biccadonna, 13 Misc. Rep. 66. See also Conroy v. 
 Allen, 23 Misc. Rep. 125, 56 N. Y. Supp. 610; Bannon v. Levi, 23 Misc. 
 Rep. 130, 50 N. Y. Supp. 659; Burkhard v. Hagemeyer, etc., 23 
 Misc. Rep. 167, 56 N. Y. Supp. 667; Kingston v. Berry, 26 Misc. Rep. 
 803, 58 N. Y. Supp. 331 ; Jackson v. Xeiv Amsterdam G. Co., 27 Misc. 
 Rep. 777, 57 N. Y. Supp. 753; Baertz v. Kruger, 58 N. Y. Supp. 1109; 
 Karpcr v. Engelhart, 57 N. Y. Supp. 245; Furber v. Marcus, 41 App. 
 Div. 425, 58 N. Y. Supp. 867. 
 
 Judgment of this court rendered for defendant, resisting a balance 
 claimed to be due for painting a building, on the ground the contract 
 therefor was not duly performed, — affirmed, it not appearing that 
 injustice resulted. Hall v. Jones, 58 N. Y. Supp. 1063. 
 
 Id., illegal, is not error if there is valid evidence to sustain the judg- 
 ment. Buck v. Waterbury, 13 Barb. 116; Shorter v. People, 2 N. Y. 
 193; Harper v. Leal, 10 How. Pr. 278. 
 
 The admission of incompetent or illegal evidence will not be cured 
 by a subsequent direction by the justice to the jury to disregard it.
 
 426 Appeals. 
 
 Penfield v. Carpenter, 13 Johns. 350; Iruine v. Cook, 13 Johns. 239; 
 r»ttfe v. ffwnr, 2 Cow. 436. 
 
 A ruling in favor of admitting illegal evidence will do no harm, if no 
 evidence is given under the decision. Houiand v. Willetts, 9 N. Y. 
 170; Vallance v. jRnp, 3 Barb. 548. 
 
 Id., immaterial. — A judgment will not be reversed because of the 
 admission of immaterial evidence, when it can be seen that no harm 
 resulted from its admission {Moore v. Somerindike, 1 Hilt. 199; 
 Spencer v. Saratoga, etc-., R. R. Co., 12 Barb. 282; Best v. Smith, 5 
 Barb. 283; B«c/c v. Waterbury, 13 Barb. 116; Andrcir* v. Harrington, 
 19 Barb. 343; WeZZs v. Cowe, 55 Barb. 585, 589) ; as where the fact 
 intended to be proved thereby is already sufficiently established by 
 other evidence. Crane v. Hardman, 4 E. D. Smith, 448; Buck v. Water- 
 bury, 13 Barb. 116. 
 
 Id.; sufficiency. — The finding of a justice, based on sufficient evidence, 
 will not be disturbed on appeal. 'Seilson v. Ray, 44 N. Y. St. Rep. 
 125; s. c, 17 N. Y. Supp. 500, citing Henry v. Bctts, 1 Hilt. 150; 
 Shaver v. Gillespie, 4G N. Y. St. Rep. 771; s. c, 19 N. Y. Supp. 237, 
 citing Scholl v. Albany Steel Co., 101 N. Y. 602. 
 
 The findings of the trial judge where there is sufficient evidence to 
 sustain them will be 'sustained, although the Appellate Term might 
 have come to a different conclusion. Lynch v. Kluber, 20 Misc. Rep. 
 601; Lowenthal v. Cop land, 18 Misc. Rep. 6; Foster v. Meeks, 18 Misc. 
 Rep. 463. 
 
 Facts. — Judgment will not be reversed on the facts unless injustice 
 has been done. Gwillin v. Smith, 26 Misc. Rep. 784, 56 N. Y. Supp. 
 226; Schmitz v. Stahl, 26 Misc. Rep. 788, 56 N. Y, Supp. 195; Lewis 
 v. Hosey, 26 Misc. Rep. 789, 56 N. Y. Supp. 200; Smith v. Davis, 26 
 Misc. Rep. 798, 56 N. Y. Supp. 183; Lewis v. Heydenreich, 26 Misc. 
 Rep. 833, 56 N. Y. Supp. 1014; King v. Krain, 60 N. Y. Supp. 264. 
 
 Id.; conflicting evidence. — The Appellate Term will not review the 
 judgment on the facts, if the evidence, though conflicting, is sufficient 
 to support it. Cassady v. Horton, 32 Misc. Rep. 148, 65 N. Y. Supp. 
 626. 
 
 Error of fact. — The Appellate Term will not order a new trial, under 
 Code of Civil Procedure, section 3057, for an error or mistake of the jus- 
 tice in finding the facts, the term " error of fact " meaning facts affect- 
 ing the validity or regularity of the proceedings and not appearing in 
 the record, such as death, coverture, or infancy of one of the parties. 
 Tarder v. Bezozi, 34 Misc. Rep. 551, 69 N. Y. Supp. 1047. 
 
 Failure to move to dismiss the complaint. — Where there is no motion 
 to dismiss at the close of the entire case, an exception to a denial of ap 
 motion for nonsuit at the close of plaintiff's case is not available on 
 appeal. Sullivan v. Brooks et al., 10 Misc. Rep. 368; Kafka v. Leven- 
 sohn, 18 Misc. Rep. 202; Flanders v. Hammond, 148 N. Y. 130.
 
 Appeals. 427 
 
 Former trial. — On the trial it was proved that there had been a for- 
 mer trial between the same parties for the same cause of action. Held, 
 that this fact, without proving such trial terminated, will not warrant 
 the reversal of the judgment. Merrill v. Whitehead, 4 E. D. Smith, 239. 
 
 Leading questions. — The judgment will not be reversed on account 
 of having allowed leading questions to witness, unless it is plain there 
 has been an abuse of the discretion. Seymour v. Bradfield, 35 Barb. 49. 
 
 Neglect of the justice to deliberate upon the whole testimony. — 
 Where there is a conflict of evidence the finding of the justice will not 
 be disturbed, unless the evidence be of such convincing character as to 
 lead to the conclusion that the justice has neglected through mistake 
 to deliberate upon the whole testimony. May v. Meierdieck, 42 N. Y. 
 St. Rep. 469; Weiss v. Strauss, 39 N. Y. St. Rep. 78; s. c, 14 N. Y. 
 Supp. 776; Dempsey v. Paige, 4 E. D. Smith, 219. 
 
 Proof, supplying. — If a nonsuit is moved tor defect in the evidence, 
 the introduction of evidence which completes the proof by either party 
 will cure the error of refusing to grant the motion at the time when it 
 was made. Kent v. Harcourt, 33 Barb. 491; Breidert v. Vincent, 1 E. D. 
 Smith, 542; Barrick v. Austin, 21 Barb. 241; Lambert v. Seely, 2 Hilt. 
 429; s. c, 17 How. Pr. 432. 
 
 Reasons of court below. — The appellate court, if impressed with the 
 correctness of an order setting aside a verdict, is not confined, for the 
 purpose of affirmance, to the reasons given by the justice at the trial, 
 but must approve the decision if correct on any ground. O'Gorman v. 
 Teets, 20 Misc. Rep. 359. 
 
 Variance between pleadings and proof. — Where no injustice has been 
 done, there is no reason for reversing the judgment. Briggs v. Evans, 
 1 E. D. Smith, 192. See also Rogers v. Verona, 1 Bosw. 417. Nor will 
 a judgment be reversed for errors in the complaint, although they are 
 such as would have been good ground of objection if taken at the trial 
 Avhen such defects were supplied by the evidence, and no harm had been 
 occasioned by them. Mayor of New York v. Green, 1 Hilt. 393. 
 
 GROUNDS FOR REVERSAL. 
 
 Amendment, refusal to allow. King v. Donovan, 26 Misc. Rep. 133, 
 55 N. Y. Supp. 876. 
 
 Contract; nonperformance; damages. — Where plaintiff seeks to re- 
 cover on a contract on the theory of performance, which he fails to 
 prove, and judgment is rendered in his favor for the whole claim, against 
 objection, and the damage sustained by plaintiff by defendant's refusal 
 to carry out the contract is not shown, judgment must be reversed. 
 Nicoll v. Lloyd, 26 Misc. Rep. 799, 56 N. Y. Supp. 178. 
 
 Contradictory statement in return. — Lees v. Pitney, 27 N. Y. Supp. 
 972.
 
 428 Appeals. 
 
 Counsel reading to the jury. — When counsel are permitted, under 
 objection and exception, while summing up, to read to the jury an ab- 
 stract from a pamphlet or newspaper, or to exhibit a cartoon, not in 
 evidence, it is good ground for reversal. Koelges v. (Jitardian Life Ins. 
 Co., 57 N. Y. G38; Williams v. Brooklyn Elevated Co., 126 N. Y. 96; 
 McKeever v. Weyen, 11 Week. Dig. 2.58; People v. Fielding, 158 N. Y. 
 547. 
 
 Defendant not served with summons; judgment by default. — If the 
 Appellate Term is not satisfied on the merits that the defendant has 
 been served with the summons, it will reverse the judgment. Empire, 
 etc. v. Young, 27 Misc. Rep. 226, 57 N. Y. Supp. 753. 
 
 Discontinuance of action, refusal to allow. Goldberg v. Victor, 26 
 Misc. Rep. 728, 56 N. Y. Supp. 1044. 
 
 Effect of reversal. — Where a judgment is reversed, without an award 
 of judgment final for the defendant upon the merits, such reversal is 
 not conclusive of the rights of the parties. Ellert v. Kelly, 10 How. Pr. 
 392; s. c, 4 E. D. Smith. 12. Where a judgment of nonsuit is rendered, 
 which is reversed on appeal, the plaintiff must commence de novo. 
 Anonymous, 9 Wend. 503. Where a judgment is subsequently reversed, 
 upon technical grounds in no way involving the merits, this will not be 
 a bar to a subsequent action for the same cause. Onderdong v. Ran- 
 lett, 3 Hilt. 323. 
 
 On the reversal of an order setting aside defendant's default, all the 
 proceedings taken thereunder fall with it, and judgment for defendant 
 rendered pending the appeal from the order must be reversed. Wein- 
 berg v. Frank, 25 Misc. Rep. 788, 56 N. Y. Supp. 920. 
 
 Evidence. — The court may review the evidence and reverse upon the 
 facts. Phillips v. Mumsey, 22 N. Y. St. Rep. 226; Macniffe v. Luding- 
 ton, 13 Abb. N. C. 407. 
 
 Id., illegal. — If the evidence is illegal, affects a material issue in the 
 case, objection is taken, it is admitted, and judgment rendered against 
 the party, it is good ground for reversing the judgment. Williams v. 
 Fitch, 18 N. Y. 546; Erben v. Lorillard, 19 N. Y. 299; Worrall v. Par- 
 malee, 1 N. Y. 519; Wilmot v. Richardson, 6 Duer, 329; Murray v. 
 Smith, 1 Duer, 413; Tuttle v. Hunt, 2 Cow. 436; Whiting v. Otis, 1 
 Bosw. 420, 424; Dresser v. Ainsworth, 9 Barb. 619; Ward v. Washington 
 Ins. Co., 6 Bosw. 230; Penfield v. Carpenter, 13 Johns. 350; Weber v. 
 Kingsland, 8 Bosw. 415, 443; Hahn v. Van Doren, 1 E. D. Smith, 411; 
 Main v. Eagle, 1 E. D. Smith, 619, 620; Belden v. Nicolay, 4 E. D. 
 Smith, 14, 17. 
 
 Id., improperly received, which may have influenced the judgment, 
 and which was taken into consideration in finding the facts, cannot be 
 disregarded, although there appears to be evidence in the cause which 
 would have been sufficient to sustain the same finding, had the illegal 
 testimony been rejected. Belden v. Nicolay, 4 E. D. Smith, 14; Hahn
 
 Appeals. 429 
 
 V. Van Doren, 1 E. D. Smith, 411; Main v. Eagle, 1 E. D. Smith, G10. 
 And see Harper v. Leal, 10 How. Pr. 276 ; Martin v. Garrett, 4 E. D. 
 Smith, 346. 
 
 Id., rejected. — Though the court may be of opinion that evidence, 
 which has been improperly rejected, would not have changed the verdict 
 of the jury, yet, if it might have influenced their minds in considering 
 the facts, and was competent, the appellate court is not at liberty to 
 overlook the erroneous rejection. McAllister v. Sexton, 4 E. D. Smith, 
 41. 
 
 Where an appeal is based upon the ground of an improper rejection 
 of competent testimony, the case must show clearly that there was an 
 exception taken to sucn rejection or that the appellant was injured 
 thereby. Carey v. Carey, 4 Daly, 270. 
 
 The exclusion of testimony offered to prove an affirmative defense 
 on the ground defendant had failed to serve on plaintiff a bill of par- 
 ticulars not demanded upon a joinder of issue, nor until defendant 
 sought to put in his evidence at the trial, is sufficient cause for re- 
 versal. Be Gregori v. Saitta, 50 App. Div. 476, 64 N. Y. Supp. 10, 7 
 N. Y. Annot. Cas. 369. 
 
 Id., judgment against. — Positive testimony that a bill given in pay- 
 ment of the cause of action was counterfeit, met only by the testimony 
 of the defendant that he has no recollection of paying the bill in ques- 
 tion, presents a case where the justice decides against the evidence if 
 he gives judgment for the defendant. Baker v. Bonesteel, 2 Hilt. 307. 
 
 Where the testimony establishing a case is direct, unequivocal, and 
 consistent, the witnesses standing unimpeached and uncontradicted, jus- 
 tice or jury cannot unreasonably discredit them, and the judgment will 
 be set aside as against evidence. Jacks v. Darrin, 3 E. jJ. Smith, 558 ; 
 Dolsen v. Arnold, 10 How. Pr. 528, 532. 
 
 Id., preponderance of. — Reversal on the facts may be had only when 
 the evidence presents such a preponderance in favor of the appellant that 
 a contrary finding would be legal error. Marvin Safe Co. v. Foss, 44 
 N. Y. St. Rep. 130; s. c, 17 N. Y. Supp. 517, citing Phillips v. Munsey, 
 22 N". Y. St. Rep. 226; Macniffe v. Ludington, 13 Abb. N. C. 407. 
 
 Id., weight of. — In determining the weight it is proper to consider 
 the quality of the evidence, the interest of the witnesses in the issue of 
 the trial, and the compatibility and consistency of their several state- 
 ments with the truth as it appears from attendant circumstances. Schu- 
 macher v. Waring, 7 Misc. Rep. 161; Hirshkind v. Private C, B. & C. 
 Assn., 12 Misc. Rep. 454. 
 
 In considering the weight of evidence the court will have due regard 
 for the kind and quality of such evidence, the degree of credibility to 
 which the testimony of witnesses is entitled, and the apparent probabil- 
 ity or improbability of its truthfulness. Brcwn v. Sullivan, 1 Misc. 
 Rep. 161 : Macniffe v. Ludington, 13 Abb. N. C. 407; Foxain v. Brown, 
 3 N. Y. St. Rep. 608.
 
 430 Appeals. 
 
 In an action for money alleged to have been loaned to the defendant. 
 to buy a suit of clothes, plaintiff testified to the fact alleged and was 
 corroborated by his wife and another witness who testified to a promise 
 by defendant to repay the loan. The defendant having denied the loan 
 and without objection introduced evidence that about the time of the 
 alleged loan he bought a suit of clothes and his uncle paid for it — Held, 
 that the judgment for defendant would not be reversed as against the 
 weight of evidence. Siefke v. Siefke, 5 Misc. Rep. 40G, citing Stiffens. 
 v. Steffens, 10 Daly, 363. 
 
 Judgment for plaintiff resting on his own testimony as to the amount 
 to be paid to him for placing a loan, — set aside, on the testimony of 
 defendant corroborated. Kearney v. Alexander, 58 N. Y. Supp. 1075. 
 
 Exception. — On appeal the Appellate Division may reverse without 
 an exception, but will not do so unless the error goes to the substantial 
 justice of the case. Philips v. Hine, 61 App. Div. 428, 70 N. Y. Supp. 
 593. 
 
 Furtherance of justice. — Although the appellate court will not re- 
 verse a judgment where there is conflicting evidence, yet it will review 
 the evidence, and reverse the judgment, although the evidence as to the. 
 facts was conflicting, when the court is satisfied that justice has not 
 been done. Curley v. Tomlinson, 5 Daly, 283. See also Bccbc v. Mead, 
 33 N. Y. 587; Peterson v. Rawson, 34 N. Y. 370; Smith v. Etna Life 
 Ins. Co., 49 N. Y. 211; Macniffe v. Luddington, 67 How. 13; Patterson 
 v. Lichtenstein, 9 Misc. Rep. 66; Goodman v. Riccadonna, 13 Misc. Rep. 
 66; Pelleteau v. The U. S. L. Co., 13 Misc. Rep. 237. 
 
 On appeal, new trial ordered under Curley v. Tomlinson. 5 Daly, 283, 
 on the ground that the ends of justice required it. Jourdan v. Healy, 
 46 N. Y. St. Rep. 198; s. c, 22 Civ. Proc. Rep. 157, 19 N. Y. Supp. 240. 
 See also Phillips v. Munsey, 22 N. Y. St. Rep. 226; Macniffe v. Lud- 
 dington, 12 Abb. N. C. 407. 
 
 Judgment after statutory time.— The failure of a justice to render 
 judgment within the time (now fourteen days) after the cause is sub- 
 mitted to him renders the judgment a nullity. Berrian v. Olmstead, 
 4 E. D. Smith, 279; Watson v. Davis, 19 Wend. 371; Wiseman v, 
 Panama R. R. Co., 1 Hilt. 300. 
 
 If the last day falls on Sunday, judgment must be rendered on the 
 day preceding; if it is not so done, the judgment will be erroneous. 
 Bissell v. Bissell, 11 Barb. 96; Ex parte Dodge, 7 Cow. 147, 1 Wait's 
 L. & Pr. 56, § 115, 2 Wait's L. & Pr. 694. 
 
 Time for decision. — A judgment rendered after the time limited by 
 law, ©n the consent of the parties. Lambert v. Solomon, 28 App. Div. 
 562, 59 N. Y. Supp. 676. 
 
 If it appears from the record that the Judgment was rendered more 
 than eight (now fourteen) days after it was submitted, the return 
 stating that it was rendered within eight (now fourteen) days must
 
 Appeals. 431 
 
 be regarded as erroneous, and the judgment reversed as without juris- 
 diction. Cohen v. Weill, 32 Misc. Rep. 198, G5 N. Y. Supp. 695. 
 
 Jury trial. — Where the record shows that the defendant demanded 
 a jury trial at the time of joining issue, a judgment rendered by the 
 justice alone must be reversed, as the justice has no power to deprive 
 the defendant of his statutory right to a jury trial. Itubenstein v. 
 miberfeld, 24 Misc. Rep. 201, 52 N. Y. Supp. 703. 
 
 Negligence. — Complaint dismissed, on the sole ground that the de- 
 fendant was not guilty of negligence; the court will reverse the judg- 
 ment, if erroneous on this point, and will not pass upon the question 
 which was not passed on below, whether plaintiff was not also guilty 
 of contributory negligence. Kinniell v. Burfeind, 2 Daly, 155. 
 
 Misstatements. — On the day to which the action was adjourned the 
 justice was engaged in the trial of a cause. Upon the statement that 
 the defendant did not intend to appear, he suspended trial, and took 
 testimony and rendered judgment in the adjourned case. Shortly 
 thereafter the defendant appeared for the purpose of trying the cause. 
 Held, that the judgment should be reversed, in consequence of mis- 
 statements to the justice by the plaintiff. Beach v. McCann, 1 Hilt. 
 256; s. c, 4 Abb. Pr. 18. See also Armstrong v. Craig, 18 Barb. 387. 
 
 Person not an attorney trying case. — Where a judge of a District 
 Court knowingly permits a person who is not an attorney and eoun- 
 selor-at-law to conduct a cause before him to the end, he is guilty of 
 a misdemeanor and the judgment will be reversed. Neivburger v. 
 Campbell, 58 How. 313, 9 Daly, 102. 
 
 Proofs. — The judgment must be sustained by the proofs, whether 
 defendant appears or not. Alburtis v. McCready, 2 E. D. Smith, 39 ; 
 Babcock v. Raymond, 2 Hilt. 62; Hoivard v. Brown, 2 Hilt. 247. The 
 amount of damages on breach of contract must be sustained by com- 
 petent evidence in the return, not upon a mere estimate. Ely v. 
 O'Leary, 2 Hilt. 355. 
 
 A judgment must be supported by proof, and cannot rest upon quali- 
 fied admissions made by defendant's counsel and upon stipulation made 
 between the attorneys, whose conditions were not fully performed. 
 Judgment reversed. Cooper v. Kanter, 24 Misc. Rep. 203; s. c, 52 
 N. Y. Supp. 625. 
 
 The action was dismissed on the ground that the copy summons 
 served did not contain the date of the return, but the record not show- 
 ing that the paper purporting to be a copy was served at all, and it. 
 appearing from the return and affidavit of the marshal, and the affi- 
 davit of plaintiff's attorney that a copy of the summons was person- 
 ally served, which was not traversed, — Held, that the judgment should 
 be reversed. Caldwell v. De Korven, 66 N. Y. Supp. 309. 
 
 Statute of limitations. — The defense of the statute of limitations 
 can only be waived by an express consent to waive it; and although not
 
 432 Appeals. 
 
 referred to on the tr,ial. nor in the summing up, and it escapes the 
 notice of the justice until after he had rendered judgment, yet, on 
 appeal, if it appear that the defense was sustained by the evidence, the 
 judgment will be reversed. Pen field v. Jacobs, 21 Barb. 335. 
 
 REARGUMENT. 
 
 See Rule IV of the Supreme Court for the Appellate Term, to be 
 found on p. 434, as to what must be shown on a motion for a re- 
 argument, and how it is heard. See Mount v. Mitchell, 32 N. Y. 702; 
 Curley v. Tomlinson, 5 Daly, 283. 
 
 Reargument may be had, although judgment of affirmance had been 
 entered upon the decision on the previous hearing, if the return has 
 not been remitted to the court below. St. Michael's Prot. Esp. Ch. 
 v. Behrens, 13 Daly, 548. 
 
 An affidavit which merely shows that, on the first hearing, the 
 counsel for the appellant was not duly prepared to argue the cause, 
 and therefore entertains the belief that the court did not fully under- 
 stand the questions involved in the case is insufficient. Drucker v. 
 Patterson, 2 Hilt. 135. A rehearing will not be granted where the 
 court is satisfied that a hearing would lead to the same result. Teag 
 v. Chrystie, 2 Abb. Pr. 259. See also Heald v. MacGovem, 25 N. Y. 
 St. Rep. 579; E. T. Co. v. ~E. B. Co., 34 N. Y. St. Rep. 315; Poole V. 
 Harris, 28 1ST. Y. St. Rep. 170; People ex rel. Ward v. Purroy, 45 N. Y. 
 St. Rep. 49 ; Norlinger v. Levine, 45 N. Y. St. Rep. 52 ; Compton v. 
 Heissenbuttel, 45 N. Y. St. Rep. 102. 
 
 LEAVE TO APPEAL TO THE APPELLATE DIVISION OF THE 
 SUPREME COURT. 
 
 An application to appeal to the Appellate Division is provided for 
 and regulated by Rule VII of the Supreme Court for the Appellate 
 Term. (To be found on p. 435.) 
 
 When application should be made. — An appeal snould be allowed by 
 order duly entered, before the end of the next term, after which the 
 judgment sought to be appealed from was entered. It is sufficient if 
 the application of the party desiring the appeal is made and heard 
 during that term: and though the court do not decide upon the ap- 
 plication till a subsequent term, they may then order the application 
 to be allowed, and the order entered as of the proper term. Clapp 
 v. Graves, 9 Abb. Pr. 21; Smith v. White, 23 X. Y. 100. 
 
 What must be shown. — An application for leave to appeal must 
 state the question of law it desired to have reviewed, and that question 
 must be one not only of importance but which has never hcen adjudi- 
 cated by the Court of Appeals. White v. Balta, 7 Misc. Rep. GG2.
 
 Appeals. 433 
 
 The grounds for such an application must show either that the con- 
 struction of a public statute is involved; that questions of law are of 
 public importance, or affect large interests; that the principles involved 
 are of importance to others, or that a number of cases depend upon the 
 decision of the case at bar. Spofford v. Rowan, 6 N. Y. St. Rep. 273. 
 
 Where the decision upon a question presented is in direct conflict 
 with a decision of the appellate court, a proper case is shown for 
 granting leave to appeal. Clapp v. Graves, 2 Hilt. 243. 
 
 Leave will be granted when questions arise that should be determined 
 by the court of last resort, such as to determine the situs of the plain- 
 tiff's claim, the power of the Legislature of another State to alter the 
 right of a resident of this State, and whether a resident of this State 
 should be permitted to reach property exempt by the laws of this State 
 from execution by suing a resident of this State in th» courts of another 
 State. Dealing v. N. Y., N. H. & E. R. R. Co., 8 N. Y. St. Rep. 386. 
 
 Leave to appeal will not be granted where the question decided re- 
 lates only to practice, and a case involving the same question has been 
 previously permitted to be taken to the appellate court (Palmer v. 
 Moeler, 2 Hilt. 421), where the testimony objected to on the trial could 
 not have prejudiced the party excepting. Lee v. Price, 8 N. Y. St. Rep. 
 258. 
 
 Where the court was of opinion that the claim of the plaintiff (which 
 had been rejected) was of a character scarcely escaping what is denomi- 
 nated as " lobby services " — Held to be a good ground for refusing the 
 plaintiff leave to appeal. Where the determination of a suit depends 
 upon the construction of a written instrument, leave to appeal will not 
 he granted where there is no dissent among the judges, and where there 
 is no question of general interest or public importance involved. Annan 
 v. Ritchie, 6 Daly, 331. Where there is a diversity of opinion and prac- 
 tice upon certain points raised upon the appeal, if the decision of those 
 points was not necessary to its determination (although passed upon 
 by the court), and the decision was placed upon a ground that had 
 heen passed upon by the Court of Appeals in a reported and well-known 
 case (Josuez v. Murphy, 6 Daly, 404) ; where the case is a peculiar 
 one, and not likely to be of frequent occurrence. Constant v. Barrett, 
 14 Misc. Rep. 570. 
 
 LEAVE TO APPEAL TO THE COURT OF APPEALS. 
 
 This is regulated by section 191, Code of Civil Procedure. 
 
 In action removed and appeal therein, leave to go to the Court of 
 Appeals was still required to be obtained. Smith v. White, 29 N. Y. 
 572; Salter v. Parkhurst, 2 Daly, 240. 
 
 28
 
 434 Rules for Hearing Appeals. 
 
 RULES FOR THE HEARING OF APPEALS. 
 By authority of Laws of 1895, chap. 553, § 15, the justices of the 
 Appellate Division have made the rules and regulations for the hearing 
 of appeals from this court as follows: 
 
 First Judicial Department in the Boroughs of Manhattan and 
 
 The Bronx. 
 
 Rule I. There shall be a term of the Supreme Court for the hearing 
 of appeals from the Municipal Court of the city of New York, in the 
 boroughs of Manhattan and The Bronx, which shall commence on the 
 first Monday of October, December, February, April, and June in each 
 year, at half-past ten A. M., and shall continue from day to day dur- 
 ing each of said months, until all appeals ready for hearing are heard 
 and disposed of. The court shall hold its sessions in the courthouse 
 in the county of New York, and it shall be held by three justices of 
 the Supreme Court, duly designated to hold such term. 
 
 Rule II. The clerk of such term of the Supreme Court shall make 
 up a calendar of all appeals to be heard at each term, and publish the 
 same in The Law Journal at least five days before the commencement 
 of the term. No appeal shall be placed upon such calendar unless the 
 return from the court below is duly filed with the clerk of such term 
 at least eight days before the commencement of the term. Upon such 
 return being filed as aforesaid the clerk shall place the appeal upon 
 the calendar in the order in which the return was filed. The order of 
 the court shall be annexed to the return and filed in the office of the 
 county clerk. Appeals shall be brought on for argument upon notice 
 of eight days. 
 
 Rule III. If the appellant does not procure the return to be made 
 to the court within the time prescribed in section 3053 of the Code of 
 Civil Procedure, the respondent may move, on five days' notice, to dis- 
 miss the appeal, and such appeal will be dismissed unless such Appel- 
 late Term, for good cause shown, extends the time in which the return 
 may be filed. If the court below shall not make the return to this 
 court, as prescribed by the Code, the appellant may move, on the first 
 day of such Appellate Term, upon five days' notice to the attorney for 
 the respondent, and to the trial justice, to compel such return by at- 
 tachment. All other motions to dismiss an appeal shall be made on 
 five days' notice on the first day of an Appellate Term. 
 
 Rule IV. Motions for reargument will only be heard on notice to the 
 adverse party, at the next succeeding term after the decision; such 
 notice must state briefly the ground upon which the reargument is asked, 
 and such motions must be submitted on printed briefs stating concisely 
 the points supposed to have been overlooked or misapprehended by the 
 court, with proper reference to the particular portion of the case and
 
 Kules for Hearing Appeals. 435 
 
 the authorities relied upon, together with copies of the opinions, if any, 
 and counsel will not be heard orally. 
 
 Rule V. In the argument of the appeal, not more than fifteen min- 
 utes shall be occupied by counsel on either side, except by express per- 
 mission of the court. 
 
 Rule VI. If the appellant does not appear upon the call of the calen- 
 dar, the judgment or order appealed from shall be affirmed. If the 
 appellant appears and the respondent fails to appear, the appellant may 
 either argue or submit his case, but judgment of reversal by default 
 will not be allowed. 
 
 Rule VII. An application to appeal to the Appellate Division of the 
 Supreme Court from a determination of the Appellate Term, under sec- 
 tion 1344 of the Code of Civil Procedure, must be made in writing on 
 notice to the adverse party upon the first day of the term following the 
 term in which the case was decided; and such application must set 
 forth in full the special reasons why such an appeal should be allowed, 
 and must be submitted without oral argument. 
 
 Rule VIII. All motions may be made under Rule III upon a notice of 
 five days. Proof of service of such notice must be filed with the clerk, 
 together with a note of issue, on the Friday preceding the commence- 
 ment of the term, in all other cases, whether the motion be founded 
 upon regular notice or an order to show cause, proof of service of the 
 notice or order, together with a note of issue, must be filed with the 
 clerk on the same day. The motion calendar will be published on the 
 Saturday preceding the commencement of the term, but no motion will 
 be placed thereon, except upon compliance with this rule. Appeals will 
 be disposed of in their order upon the calendar. If either party be not 
 ready to argue the case orally when called for argument, he must sub- 
 mit, or the case for cause shown be ordered to stand over until the 
 next term. Proposed orders must be presented for settlement on a 
 notice of two days. Every order containing a provision for a new trial 
 must specify the time and place of the new trial ordered in accordance 
 with the provisions of section 3065 of the Code of Civil Procedure. 
 
 Second Judicial Department in the Boroughs of Kings, Queens, 
 
 and Richmond. 
 
 All appeals from judgments rendered in the Municipal Court of the 
 city of New York on or after the 15th day of November, 1898, in dis- 
 tricts embraced within the Second Judicial Department, will be heard 
 by the Appellate Division of the Supreme Court for said department. 
 A special calendar for such appeals will be made up for the second Fri- 
 day of each term of this court, on which day a hearing of said appeals 
 will be had. Either party may bring such an appeal on for hearing by 
 a notice of argument, served at least eight days prior to the day desig- 
 nated for the hearing of the appeal. Upon the return day of said
 
 436 Costs and Fees. 
 
 notice the respondent may, upon the default of his adversary or his 
 failure to cause the return of the Municipal Court to be filed with the 
 clerk of this court, as prescribed by these rules, take a judgment of 
 affirmance or an order dismissing tbe appeal as the justice of the case 
 may require; and it shall not be necessary to make a special motion 
 for the dismissal of any appeal. In case of a failure of any justice 
 of the Municipal Court to make return to this court, as required by 
 section 3053, Code of Civil Procedure, it shall be the duty of the ap- 
 pellant to forthwith apply to this court, under the provisions of sections 
 3055 and 3056, to compel such return. 
 
 Upon the filing of any return of a justice of the Municipal Court, 
 and upon a note of issue filed by either party, at least three days be- 
 fore the day for hearing said appeals, it shall be the duty of the clerk 
 to put the appeal on the calendar. 
 
 The appellant shall furnish the court either a certified or stipulated 
 copy of the return in typewriting, or, at his election, printed copies 
 of the return, and each party shall file five copies of any brief or points 
 which he may desire to submit. 
 
 The certified or stipulated copy of the return and brief or points 
 must be filed the day before the cause is placed on the day calendar. 
 
 Note. — There are no sections 328 and 329. 
 
 TITLE X. 
 Costs and Fees. 
 
 Section 330. When prevailing party to recover costs. 
 
 331. When neither party to recover costs. 
 
 332. Costs; sums allowed. 
 
 333. When defendant entitled to increased costs. 
 
 334. Costs on demurrer. 
 
 335. Costs on amendment of pleading. 
 
 336. Costs on adjournment. 
 
 337. Costs after discontinuance, upon answer of title. 
 
 338. Costs where title to real property, in question. 
 
 339. Costs in actions upon bastardy, et cetera, bonds. 
 
 340. Costs in action by working woman. 
 
 341. Taxation of costs. 
 
 342. Review of taxation. 
 
 343. Costs, duty of clerk on taxation. 
 
 344. Costs, affidavit respecting disbursements. 
 
 345. Costs upon appeal ; to whom. 
 
 346. Costs upon appeal ; amount. 
 
 347. Fees payable to clerks. 
 
 348. Employee's action; no fees.
 
 § 330. Costs and Fees. 437 
 
 Section 349. Fees, property of city. 
 
 350. Fees on judgment, in county clerk's office. 
 
 351. Jurors' fees. 
 
 352. Witnesses' fees. 
 
 353. Stenographers' fees. 
 
 354. Marshals' fees. 
 
 355. Costs on order to prosecute marshal's bond. 
 
 356. Fees in summary proceedings. 
 
 § 330. When prevailing party to recover costs. — Except as 
 specifically prescribed by law, a party who recovers judg- 
 ment in this court is entitled to recover as costs all sums 
 allowed by express provision of law, and all fees and dis- 
 bursements prescribed by law for services necessarily ren- 
 dered in an action at the request of the prevailing party, 
 and paid by him. 
 
 Notes to section 330. 
 
 This section is taken from section 3074 of the Code of Civil Pro- 
 cedure, relating to justices' courts. 
 
 For tabulated statement of " Costs and Fees," see notes following 
 § 356. 
 
 Abandonment or bastardy bond actions. — In addition to the other 
 costs in these actions the court shall make and the clerk shall enter on 
 the judgment an additional allowance of ten per cent, on the amount 
 recovered. § 339 of this act. See notes to §§ 1 and 178, subd. 4, as 
 to the jurisdiction of this court upon such bonds. 
 
 Adjournment. — Costs on, may be imposed by the justice as he deems 
 reasonable. § 336. 
 
 Amendment. — Court may impose, in its discretion, as a condition of 
 an amendment, the payment of costs to the adverse party not exceeding 
 $10. § 335. 
 
 Amount. — Where a defendant procures a discontinuance upon the 
 ground that the accounts of the parties exceed $400, and plaintiff there- 
 upon brings an action in the Supreme Court and recovers less than 
 $50, defendant is estopped from claiming that the justice had jurisdic- 
 tion, and so that he is entitled to costs. Bradner v. Howard, 75 N. Y. 
 417, affg. 14 Hun, 420. 
 
 Appeal. — For costs on appeal, see §§ 345 and 346. 
 
 Attorney must have filed verified pleading, or a written notice of ap- 
 pearance to recover costs. See § 332. 
 
 Id. — Costs belong to the attorney and cannot be made the subject of 
 set-off between the parties. Husted v. Thomson, 26 Misc. Rep. 548, 57 
 N. Y. Supp. 558.
 
 438 Costs a.\i> Fees. §330. 
 
 Id., who is party, appearing in person. — A plaintiff who is an attor- 
 ney-at-law may recover extra costs, although he himself conducts the 
 prosecution of the case. Kopper v. Willis, 9 Daly, 460. 
 
 An attorney who issued and appears in propria persona, and suc- 
 ceeds in the action, is entitled to the same costs as if he had appeared 
 as attorney for another. Crommelvn v. Dmsmore, 1 City Ct. Rep. 69. 
 
 Id.; lien for costs.— See authorities under § 40. 
 
 " Costs," meaning of term. — The term " costs " generally includes dis- 
 bursements of all kinds in the action, and not merely those fixed sums 
 which are allowed as a compensation for the labor of the party or his 
 attorney. Wheeler v. Wrstgate. 4 How. 269 ; Belding v. Conklin, 4 How. 
 196; Stone v. Duffy, 3 Sandf. 761. 
 
 Department of health. — In case of recovery for less than $50, the 
 amount of costs shall be $10. If no recovery by the board of health, 
 the judge shall certify in writing that there was not reasonable cause 
 for bringing the action, and in such case the costs shall not exceed 
 $10 unless the amount claimed exceed $50. Charter, §§ 1262 and 1287. 
 
 Former action; costs unpaid; stay. — A subsequent action cannot be 
 brought while the costs, due in a prior action for the same subject- 
 matter, which action has been discontinued with costs, remain unpaid. 
 Objection that costs of the former action had not been paid must be 
 made on return of summons and before complaint entered, and certainly 
 before defendant answers. Flewelling v. Brandon, 4 Daly, 333. See 
 also Hepburn v. Hepburn, 54 How. 466. 
 
 A former suit is still pending until the costs therein are paid (Averill 
 V. Patterson, 10 N. Y. 500), and this rule applies to this court. Flew- 
 elling v. Brandon, 4 Daly, 333. 
 
 Where the costs of dismissal of a previous action for the same cause 
 between the same parties are paid by the plaintiff on the return day of 
 the summons, the defendant is not entitled to have the plaintiff's pro- 
 ceedings stayed, or his complaint dismissed by reason of the nonpay- 
 ment of such costs, before beginning the second action. Lewis v. Davis, 
 8 Daly, 185. 
 
 Guardian ad litem. — Responsibility for costs. See § 41. 
 
 Jurisdiction, want of. — The rule that costs will not oe allowed on 
 the dismissal of a complaint for want of jurisdiction applies only in 
 cases where the want of jurisdiction appears on the face of the sum- 
 mons or complaint, or the court is called upon to adjudicate the ques- 
 tion on plea or demurrer. Harriott v. N. J. R. R. T. Co., 1 Daly, 377 ; 
 Gormlcy v. Mcintosh, 22 Barb. 271. 
 
 Where the court proves to have no jurisdiction of an action, it may 
 nevertheless award costs against plaintiff, since he has submitted him- 
 self to the jurisdiction. Day v. Sun Ins. Office, 40 App. Div. 305, 57 
 N. Y. Supp. 1033.
 
 § 331. Costs and Fees. 439 
 
 Marshal. — The costs of motion, not exceeding $10, for leave to prose- 
 cute the bond shall be included in the judgment which shall be obtained. 
 § 355. 
 
 Mechanic's lien action. — The costs and disbursements are the same 
 as allowed in other actions in this court. Code Civ. Proc, § 3411. 
 
 Offer. — Upon the acceptance by plaintiff in replevin of defendant's 
 offer of judgment for the recovery of a specified chattel and $2 dam- 
 ages for its detention, with costs, plaintiff is entitled to but $2 costs, 
 though he demands that the value of the chattels sued for be fixed at 
 •$200, and damages for their detention at $100. Hausauer v. Macha- 
 wice, 54 App. Div. 23, 66 N. Y. Supp. 340. 
 
 Motion costs to be included in the judgment; offset. — When motion 
 costs are granted, they are to be included in the judgment, if in favor 
 of the party who succeeds at the trial, or if in favor of the party de- 
 feated, offset against the costs of the successful party. Faber v. Flau- 
 man, 30 Misc. Rep. 627, 62 N. Y. Supp. 784. 
 
 Poor person. — Section 461 of the Code of Civil Procedure construed 
 as to payment of costs accrued prior to application. Such costs must 
 be paid. Lyons v. Murat, 4 Abb. Pr. N. S. 13. See §§ 45, 53. 
 
 While a petition for leave to sue as a poor person, which alleges the 
 facts upon which the action is to be brought, and the poverty of the 
 plaintiff makes out a prima facie case, yet if the order obtained ex 
 parte is challenged, a meritorious cause of action must be shown, and 
 on this question the dismissal of a previous suit may be considered, 
 though the statute prescribes that nonpayment of the costs awarded 
 against the plaintiff therein shall not pi'eclude another action. Young 
 v. Nassau Electric R. R. Co., 34 App. Div. 126, 54 N. Y. Supp. 600. 
 
 Res adjudicata; dismissing an action. — A judgment, dismissing an 
 action on the ground of want of jurisdiction, is res adjudicata as to 
 plaintiff's right to costs in an action for the same cause in a court of 
 record, where his recovery is less than $50. Kirk v. Blashfield, 4 Hun, 
 269. 
 
 Workingman. — For costs in action by, see § 340. 
 
 § 331. When neither party to recover costs In either of 
 
 the following cases, costs shall not be awarded to either 
 party, but each party must pay his own costs. 
 
 1. Where the action is dismissed by reason of the failure 
 of both parties to attend. 
 
 2. Where the defendant interposes an answer that title 
 to real property will come in question, and gives the under- 
 taking thereon prescribed in this act.
 
 440 Costs and Fees. §332. 
 
 3. Where the action is discontinued on the ground that 
 the plaintiff or defendant is an infant, for whom a guardian 
 ad litem has not been appointed. 
 
 4. Where the defendant interposes plea of bankruptcy. 
 
 Notes to section 331. 
 
 This section is taken from section 3075 of the Code of Civil Pro- 
 cedure, relating to justices' courts. 
 
 Answer of title to real property. — Defendant to give undertaking. 
 See § 180. 
 
 Building Code. — Action to recover penalty for violation of this Code. 
 Department of buildings, or any officer thereof, or the corporation of the 
 city of New York, or any defendant, not liable for costs, unless specially 
 ordered, etc. § 151, Building Code; Thomson's Greater New York 
 Charter, p. 10:5:). 
 
 Fire commissioner. — No fees or costs shall be demanded of him in 
 an action to recover a penalty. Charter, § 773, until changed by the 
 board of aldermen. 
 
 § 332. Costs; sums allowed.— In all actions brought in this 
 court there shall be allowed to the prevailing party, if he 
 shall have appeared by an attorney at law, who files a veri- 
 fied pleading, or a written notice of appearance, the follow- 
 ing sums as costs. Where an action is removed as provided 
 in section three of this act, costs shall be allowed the same 
 as if the action had been commenced in the court to which 
 it is removed. 
 
 1. To either party. — Where the amount demanded in the 
 summons is under fifty dollars, or where the amount de- 
 manded is under fifty dollars and defendant interposes a 
 counterclaim under fifty dollars, the court may, in its dis- 
 cretion, award a sum not exceeding five dollars. 
 
 2. To the plaintiff. — Where after the trial of an issue of 
 fact raised by appearance and answer of defendant, plaintiff 
 recovers judgment : For fifty dollars and under one hun- 
 dred dollars, ten dollars; for one hundred dollars and under 
 two hundred dollars, fifteen dollars; for two hundred dollars 
 and under three hundred dollars, twenty dollars; for three 
 hundred dollars and under four hundred dollars, twenty-five 
 dollars; for four hundred dollars or over, thirty dollars. If
 
 § 332. Costs and Fees. 441 
 
 the action is for the recovery of a chattel the amount of 
 costs shall be governed by the value of the chattel as deter- 
 mined in the judgment. 
 
 3. To the plaintiff. — Where, upon the nonappearance, or 
 failure of defendant to answer, plaintiff recovers judgment : 
 For fifty dollars and under one hundred dollars, five dollars; 
 for one hundred dollars and under two hundred dollars, 
 seven dollars and fifty cents; for two hundred dollars and 
 under three hundred dollars, ten dollars; for three hundred 
 dollars and under four hundred dollars, twelve dollars and 
 fifty cents; for four hundred dollars or over, fifteen dollars. 
 If the action is for the recovery of a chattel the amount of 
 costs shall be governed by the value of the chattel as deter- 
 mined in the judgment. 
 
 4. To the plaintiff. — Where the action brought by the 
 plaintiff is for a sum less than fifty dollars, and the defend- 
 ant shall have interposed a counterclaim amounting to fifty 
 dollars or over, and the plaintiff recovers judgment upon the 
 nonappearance of defendant, the same sum as plaintiff would 
 be entitled to recover on default if the amount of his claim 
 was the amount of defendant's counterclaim. 
 
 5. To the defendant. — Where defendant recovers judg- 
 ment after the trial of an issue of fact, raised by appearance 
 and answer, costs shall be awarded to the defendant, at the 
 rate prescribed in subdivision two based upon the amount 
 of plaintiff's demand in the summons. If the action is for 
 the recovery of a chattel, the amount of costs shall be gov- 
 erned by the value of the chattel, as set forth in the affi- 
 davit of plaintiff. 
 
 6. To the defendant. — Where defendant recovers judg- 
 ment on the non-appareance of the plaintiff, costs shall be 
 awarded to the defendant at the rates prescribed in subdi- 
 vision three, based upon the amount of plaintiff's demand 
 in the summons. If the action is for the recovery of a chat- 
 tel the amount of costs shall be governed by the value of the 
 chattel as set forth in the affidavit of plaintiff. 
 
 7. To the defendant. — Where after the trial, of an issue 
 of fact, raised by his appearance and answer, and counter- 
 claim, the defendant recovers judgment : For fifty dollars
 
 442 Costs and Fees. § 332. 
 
 and under one hundred dollars, ten dollars; for one hun- 
 dred dollars and under two hundred dollars, fifteen dollars; 
 for two hundred dollars and under three hundred dollars, 
 twenty dollars; for three hundred dollars and under four 
 hundred dollars, twenty-five dollars; for four hundred dol- 
 lars or over, thirty dollars. 
 
 8. To the defendant. — Where, upon the non-appearance of 
 the plaintiff after issue joined and defendant shall have 
 interposed a counterclaim and recovers judgment : For fifty 
 dollars and under one hundred dollars, five dollars; for one 
 hundred dollars and under two hundred dollars, seven dol- 
 lars and fifty cents; for two hundred dollars and under 
 three hundred dollars, ten dollars; for three hundred dol- 
 lars and under four hundred dollars, twelve dollars and fifty 
 cents; for four hundred dollars or over, fifteen dollars. 
 
 9. Upon settlement of case after service of summons, and 
 "before trial, plaintiff shall be entitled to costs at the rate 
 prescribed in subdivision three of this section, determined 
 by the amount of the settlement. 
 
 10. Upon settlement of case after trial and before entry 
 of judgment plaintiff shall be entitled to costs at the rate 
 prescribed in subdivision two of this section, determined by 
 the amount of the settlement. 
 
 Notes to section 332. 
 
 This section is new and is based upon the general principle of costs 
 relating to justices' courts, with a graduated scale. It is taken, among 
 others, principally from section 1417 of the Consolidation Act (Laws 
 1882, chap. 410), which was taken from Laws 1857, chap. 344, § 68, as 
 amended by Laws 1868, chap. 308, and from Laws 1857, chap. 295, §§7 
 and 8; Laws 1870, chap. 741, § 4, and section 1420 of the Consolidation 
 Act, which was originally Laws 1857, chap. 344, § 70. 
 
 It will be observed that costs are only allowed to the prevailing party 
 " if he shall have appeared by an attorney, who filed a verified pleading 
 or a written notice of appearance." 
 
 Costs only to an attorney. — Plaintiff recovering judgment is not 
 entitled to costs, where it does not appear that he had an attorney 
 actually engaged in the prosecution of the action. Bacon v. Combes, 
 65 N. Y. Supp. 510.
 
 §§ 333, 334. Costs and Fees. 443 
 
 Trial has been had where the defendant's attorney cross-examines 
 the plaintiff with a view to defeat his recovery, and $5 costs may be 
 allowed. Neallis v. Meyer, 21 Misc. Rep. 344. 
 
 § 333. When defendant entitled to increased costs. — In 
 either of the following cases, a defendant in whose favor a 
 final judgment is rendered, in an action wherein the com- 
 plaint demands judgment for a sum of money only, or to 
 recover a chattel; or a final order is made, in a special pro- 
 ceeding instituted by a state writ, is entitled to recover the 
 costs, prescribed in section three hundred and thirty-two of 
 this act, and, in addition thereto, one-half thereof: 
 
 1. "Where the defendant is or was a public officer, ap- 
 pointed or elected under the authority of the state, or a 
 person specially appointed, according to law, to perform the 
 duties of such an officer; and the action or special proceed- 
 ing was brought by reason of an act, done by him by virtue 
 of his office, or an alleged omission by him, to do an act, 
 which it was his official duty to perform. 
 
 2. Where the action was brought against the defendant, 
 by reason of an act done, by the command of such an officer 
 or person, or in his aid or assistance touching the duties of 
 the office or appointment. 
 
 3. Where the action was brought against the defendant, 
 for taking a distress, making a sale, or doing any other act, 
 by or under a color of authority of a statute of the state. 
 
 But this section does not apply, where an officer, or other 
 person, specified herein, unites in his answer with a person 
 not entitled to such additional costs. 
 
 Note to section 333. 
 
 This section is the same as section 3258 of the Code of Civil Pro- 
 cedure, relating to justices' courts. See also at the end of § 356, tabu- 
 lated costs, etc. 
 
 § 334. Costs on demurrer. — Where a judgment is rendered 
 on the trial of a demurrer, the prevailing party shall recover 
 the same costs as if the judgment had been in his favor, 
 upon the default in the same action. Otherwise costs shall
 
 444 Costs and Fees. §§ 335, 336, 337. 
 
 not exceed ten dollars in the discretion of the justice, as a 
 condition for leave to plead over. 
 
 Note to section 334. 
 
 This section is taken from section 3077 of the Code of Civil Pro- 
 cedure, relating to justices' courts. See tabulated statement of costs 
 at the end of § 356. 
 
 § 335. Costs on amendment of pleading. — The court may, 
 in its discretion, as a condition for allowing an amendment 
 to a pleading, require the payment of a sum not to exceed 
 ten dollars as costs to the adverse party. 
 
 Note to section 335. 
 
 This section is taken from section 2944 of the Code of Civil Pro- 
 cedure, relating to justices' courts, made applicable to this court by 
 section 1347 of the Consolidation Act (Laws 1882, chap. 410). 
 
 § 336. Costs on adjournment — When a trial shall be ad- 
 journed on cause shown, -the justice, in his discretion, may 
 impose upon the party applying for the adjournment such 
 conditions as to him shall seem reasonable, and may also 
 impose costs to the amount of ten dollars, besides disburse- 
 ments, as a condition of adjournment. 
 
 Notes to section 336. 
 
 This section is taken from sections 1365 and 1420, subdivision 3, of 
 the Consolidation Act (Laws 1882, chap. 410), which originally were 
 Laws 1857, chap. 344, §§ 28 and 70. 
 
 Trial; nonpayment of costs. — Costs may be imposed as a condition 
 of granting an adjournment to defendant, but their nonpayment will 
 not preclude him from participating in the trial on the adjourned day. « 
 Father v. Flauman, 30 Misc. Rep. 627, 62 N. Y. Supp. 784, 7 N. Y. 
 Annot. Cas. 267. 
 
 § 337. Costs after discontinuance, upon answer of title. — 
 When an action brought in this court, has been discontinued, 
 as prescribed in this act, upon the delivery of an answer 
 showing that title to real property will come in question, 
 and a new action for the same cause has been commenced
 
 § 337. Costs and Fees. 445 
 
 in the proper court; the party in whose favor final judgment 
 is rendered in the new action, is entitled to costs; except 
 that where final judgment is rendered therein, in favor of 
 the defendant, upon the trial of an issue of fact, he is not 
 entitled to costs, unless it is certified that the title to real 
 property came in question on the trial. 
 
 Notes to section 337. 
 
 Thi9 section is taken from section 1421 of the Consolidation Act 
 (Laws 1882, chap. 410), which was taken from section 3235 of the Code 
 of Civil Procedure, applicable to justices' courts. See also §§ 182 and 
 338. 
 
 Dismissal of complaint. — The plaintiff discontinued an action, 
 brought for a trespass upon lands, upon a plea of title and a general 
 denial being interposed by the defendant. Thereafter he brought this 
 action for the same cause, and the same defenses were again pleaded. 
 Upon the trial, the plaintiff having given no evidence to prove the tres- 
 pass alleged in the complaint, the court, on motion of the defendant, 
 dismissed the complaint. Held, that there was no " trial of an issue of 
 fact," within the meaning of those terms as used in the exception con- 
 tained in section 3235, and that defendant was entitled to costs. Gates 
 v. Canfield, 28 Hun, 12, 04 How. 81, 15 Week. Dig. 389, revg. 2 Civ. 
 Proc. Rep. 254. 
 
 New action. — As to costs in new suit when original action had been 
 dismissed on the ground that title to real estate would come in ques- 
 tion, see Locklin v. Casler, 50 How. 43. 
 
 An action to recover the expense of building the defendant's portion 
 of a division fence between the adjoining lands of the parties was com- 
 menced and discontinued upon defendant's objection as . involving the 
 title to real estate. On the trial of the action afterward commenced in 
 the Supreme Court, it appeared that there was no dispute as to the 
 location of the division line where the fence was to be placed; but that 
 the question litigated was whether the fence was or was not upon the 
 line. Held, that the title to real property did not come in question on 
 the trial. That the plaintiff was entitled to costs under section 3235. 
 Collins v. Adams, 19 N. Y. St. Rep. 48. 
 
 On offer by defendant.— Where the defendant before answering of- 
 fered to allow judgment against him for a certain sum, and upon plea 
 of title the action was discontinued and brought in the Supreme Court, — 
 Held, that the action here was identical with that in the justice's court, 
 and the defendant entitled to costs on recovery by the plaintiff of less 
 than the sum offered. The Niagara Falls Suspension Bridge Co. v. 
 BacJcman, 4 Lans. 523.
 
 44G Costs and Fees. §§338,339. 
 
 § 338. Costs where title to real property in question. — 
 Where plaintiff's complaint is dismissed, pursuant to section 
 one hundred and eighty-four of this act, defendant shall ho 
 entitled to recover the costs provided in subdivision two of 
 section three hundred and thirty-two of this act. 
 
 Notes to section 338. 
 
 This section is taken from sections 1354 and 1421 of the Consolidation 
 Act (Laws 1882, chap. 410). 
 
 Section 1354 of the Consolidation Act is the same as section 2956 
 of the Code of Civil Procedure, relating to justices' courts, and section 
 1421 of the Consolidation Act was taken from section 3235 of the Code 
 of Civil Procedure, also applicable to justices' courts. 
 
 The amount of costs is specifically fixed as provided in section 332. 
 
 Section 184 is entitled " Title appearing from plaintiff's own show- 
 ing." See also §§ 182 and 337. 
 
 Recovery under $50. — Where the recovery is less than $50 in the 
 higher court, the plaintiff is still entitled to costs where there is no 
 certificate of the court that title to real property came in question on 
 the trial. Blake v. James, 19 How. 321. 
 
 Where the defendant pleaded title, and upon removal succeeded on 
 the same issues as to which such title was pleaded, plaintiff upon re- 
 covery of six cents on other issues is not entitled to costs. Shufclt v. 
 Sweet, 15 Week. Dig. 1. 
 
 In an action for trespass defendant pleaded title to a portion of the 
 premises; that action was thereupon discontinued and one commenced 
 in the Supreme Court, wherein the pleadings were substantially the 
 same. Defendant succeeded on the issues affecting the premises as to 
 which title was pleaded. Neither possession of nor the title to the resi- 
 due was made a question upon the trial by defendant, and the amount 
 of the recovery for trespass thereon was less than $50. Held, that 
 under section 61 of the Code, the costs in such case are to be governed 
 by the decision and judgment on the issue presented by the plea of 
 title; that plaintiff, by claiming title to land not owned by him, caused 
 all the costs which accrued in the Supreme Court; he therefore could 
 not recover costs, but was properly chargeable with defendant's. Mdrss 
 v. Salisbury, 48 N. Y. 636. 
 
 § 339. Costs in action upon bastardy, et cetera, bonds. — 
 Upon a recovery being had in an action brought upon a bas- 
 tardy or abandonment bond, by the commissioner of public 
 charities, or the overseers of the poor, in addition to the 
 other costs therein, the court shall make and the clerk shall
 
 §§ 340, 341. Costs and Fees. 447 
 
 enter in the judgment, an additional allowance of ten per 
 centum of the amount recovered. 
 
 Notes to section 339. 
 
 This section is the same as section 1422 of the Consolidation Act 
 (Laws 1882, chap. 410), which was taken from section 2, chapter 389, 
 Laws 1862. 
 
 See note to § 1, subd. 4, as to whether this court has jurisdiction 
 in an action upon a bastardy or abandonment bond. See also § 178 
 and notes. 
 
 § 340. Costs in action by working woman. — In an action 
 brought to recover a sum of money for wages earned by a 
 female employee, other than a domestic servant; or for ma- 
 terial furnished by such an employee, in the course of her 
 employment, or in or about the subject-matter thereof, or 
 for both, the plaintiff, if entitled to costs, recovers the sum 
 of ten dollars as costs, in addition to the costs allowed in 
 this court, unless the amount of damages recovered is less 
 than ten dollars; in which case, the plaintiff recovers the 
 sum of five dollars as such additional costs. When the em- 
 ployee is the plaintiff in such an action, she is entitled upon 
 a settlement thereof, to the full amount of costs, which she 
 would have recovered, if judgment had been rendered in 
 her favor, for the sum received by her upon the settlement. 
 
 Notes to section 340. 
 
 This section is the same as section 1424 of the Consolidation Act 
 (Laws 1882, chap. 410), which was taken from sections 3131 and 3222 
 of the Code of Civil Procedure. 
 
 Who is not an employee? — Appellant, who was paid for the various 
 items of service performed by her for defendants, and not receiving a 
 stated salary, and who conducted her work in a room hired by herself 
 at her own expense and who hired and paid her assistants, — Held not 
 an employee entitled to extra costs under section 1424 of the Consoli- 
 dation Act, and under Code Civ. Proc., §§ 3131, 3222, or to execution 
 against the person under section 3221. Berger v. Mandel, 25 Misc. 
 Rep. 766, 54 N. Y. Supp. 987. 
 
 § 341. Taxation of costs. — Where judgment has been ren- 
 dered by the justice, costs must be taxed by the clerk and
 
 448 Costs and Fees. § 342. 
 
 inserted in the judgment. Before any item of costs other 
 than the costs fixed by the express provision of law or 
 granted by the justice or fees paid to the clerk in the action 
 are allowed, the party must show by his affidavit, or that 
 of his attorney, that the item was actually and legally paid 
 and incurred. All items of cost must be entered by the 
 clerk in the docket book kept by him. The clerk shall like- 
 wise tax costs allowed by the appellate court. 
 
 Notes to section 341. 
 
 This section is new and is taken partly from section 3078 of the 
 Code of Civil Procedure, relating to justices' courts. 
 
 Costs on appeal. — See §§ 345 and 34G; they are to be taxed by the 
 clerk of this court by this section. 
 
 Taxation by the court; marshal's fees, etc. — Fees of marshal for 
 trouble and expenses in taking possession of and preserving property 
 replevied were formerly left to the discretion of the justice under 
 Consolidation Act, § 1711 (Stewart v. The Fidelity, etc., 19 Misc. Rep. 
 419) ; but now they are taxed by the court. See § 104. 
 
 Trial fee cannot be recovered back from the clerk. — Where a veri- 
 fied answer has been filed in , this court and the issue adjourned, 
 and when called for trial, defendant defaults and plaintiff proves his 
 case, this amounts to a trial for purposes of costs, and plaintiff can- 
 not recover back the trial fee paid to the clerk. People ex rel. Kemper 
 v. Wilson, 34 Misc. Rep. 273, 68 N. Y. Supp. 850. 
 
 Tabular statement of costs and fees. — See end of § 356. 
 
 § 342. Review of taxation. — A taxation may be reviewed 
 by the justice sitting in the district, within five days after 
 the entry of judgment, upon two days' notice. The order 
 made upon such a motion must disallow any item wrong- 
 fully included in the judgment, or add any item wrongfully 
 omitted therefrom, and direct that any sum so disallowed 
 be credited upon the judgment and upon any execution or 
 other mandate issued to enforce the judgment. Unless 
 such review is asked for, such taxation shall not be there- 
 after questioned on appeal. 
 
 Note to section 342. 
 
 This section is new and is taken from sections 3262 to 3265 of the 
 Code of Civil Procedure, relating to justices' courts.
 
 §§ 343, 344. Costs and Fees. 449 
 
 § 343. Costs ; duty of clerk on taxation. — The clerk must 
 examine all items presented to him for taxation ; must satisfy 
 himself that all the items allowed by him are correct and 
 legal; and must strike out all charges for fees, where it 
 does not appear that the services for which they are charged 
 were necessarily performed. 
 
 Notes to section 343. 
 
 This section is taken from section 32(50 of the Code of Civil Pro- 
 cedure. By section 341 the clerk of this court must tax the costs on 
 appeal. 
 
 Prospective charges and fees on docket in county clerk's office. See 
 § 350. 
 
 § 344. Costs ; affidavit respecting disbursements. — A charge, 
 for the attendance of a witness, cannot be allowed without 
 an affidavit, stating the number of days of his actual attend- 
 ance; and, if travel fees are charged, the distance for which 
 they are allowed. A charge, for a copy of a document or 
 paper, cannot be allowed, without an affidavit stating that 
 it was actually and necessarily used, or was necessarily ob- 
 tained for use. An item of disbursements, in a bill of costs, 
 cannot be allowed in any case, unless it is verified by affidavit, 
 and appears to have been necessarily incurred and to be rea- 
 sonable in amount, except fees paid to the clerk. 
 
 Notes to section 344. 
 
 This section is taken from section 3267 of the Code of Civil Pro- 
 cedure. 
 
 Clerk of this court must tax the costs on appeal. See § 341. 
 
 Disbursements arc allowed by section 330. 
 
 Upon the recovery of nominal damages for the breach of a contract 
 of sale, the seller is entitled to recover as of right " the disbursements 
 now allowed by law and also the prospective charges for docketing judg- 
 ment in the county clerk's office, the fee of the county clerk for issuing 
 an execution and filing certificate of satisfaction, and the sheriff's fee 
 for receiving and returning one execution thereon " as provided in the 
 Consolidation Act, § 1420, as amended by Laws 1894, chap. 750, made 
 applicable to this court by section 1369 of the Charter. National Cash 
 Register Co. v. Schmidt, 48 App. Div. 472, 62 N. Y. Supp. 952. 
 
 Tabulated statement of costs and fees. — See end of § 356. 
 29
 
 450 Costs and Fees. § 345. 
 
 § 345. Costs upon appeal; to whom. — Upon an appeal pro- 
 vided for in this act, the award of costs is regulated aa 
 follows : 
 
 1. If the appeal is dismissed because neither party brings 
 it to a hearing, as prescribed by law, costs shall not be 
 awarded to either party. 
 
 2. If the judgment or final order is reversed, costs must 
 be awarded to the appellant. 
 
 3. If the judgment or final order is affirmed, costs must 
 be awarded to the respondent. 
 
 4. If the judgment or final order is modified or a new trial 
 is ordered, costs, or such part thereof, as to the appellate 
 court seems just, besides disbursements, may be awarded to 
 either party, absolutely, or to abide the event. 
 
 Notes to section 345. 
 
 This section is taken from sections 3060, 3066, and 32 13 of the Code 
 of Civil Procedure, which are applicable to justices' courts. See also 
 § 310. 
 
 Appeal from judgment on default; no respondent. — Where an inquest 
 was taken for default in appearance by defendant, and the justice dis- 
 missed the complaint, the remedy is by appeal; but whether the judg- 
 ment is reversed and a new trial ordered, or the judgment affirmed, 
 no costs will be allowed, there being no respondent. Katz v. Diamond, 
 16 Misc. Rep. 577. 
 
 Clerk of this court must tax the costs on appeal. See § 341. 
 
 A matter of right. — The court must award costs to the respondent 
 in affirming a judgment, and the court has no power to relieve the party 
 against whom a decision is made on appeal from costs. Logue v. Gil- 
 lick, 1 E. D. Smith, 398. On reversing a judgment, the court has no 
 discretion as to the costs. Hahn v. Van Doren, 1 E. D. Smith, 411; 
 Maine v. Eagle, 1 E. D. Smith, 621 ; Chapin v. Churchill, 12 How. Pr. 
 367. 
 
 Where a judgment on appeal was reversed, and by inadvertence no 
 costs were allowed to the appellant, the court, upon application, modi- 
 fied the order of reversal, and gave the appellant costs. If the judg- 
 ment is reversed, the appellant is entitled to costs as a matter of right, 
 and the court has no power to deprive him of them. Wood v. Brown, 
 6 Daly, 428. 
 
 Modified judgment or order, or new trial ordered. — See § 310, and 
 also Rcibert v. Backenstross, 71 Hun, 519; De Bevoise v. Ingalls, 88. 
 Hun, 186. See Southard v. Becker, 15 Misc. Rep. 436.
 
 § 346. Costs and Fees. 451 
 
 Must be given on affirmance; when discretionary. — Under sections 
 3060, 3066, subdivision 3, and 3067, costs must be awarded to the re- 
 spondent upon affirming on appeal a judgment; the provision of section 
 3213 gives discretion as to costs only where a judgment is modified or 
 a new trial ordered. Eisler v. The Union Transfer Co., 16 Daly, 456. 
 See § 310. 
 
 New trial. — Where the judgment has been reversed and new trial 
 granted, with costs to abide the event, such costs are now to be taxed 
 by the clerk of this court as provided by section 341. This provision 
 nullifies the decisions in Van Bussam v. The Metropolitan etc., 16 
 Misc. Rep. 40: Schleainger v. Mayer, etc., 20 Misc. Rep. 353; s. c, 45 
 N. Y. Supp. 934. 
 
 Order, reversal of; how enforced. — Where the Appellate Term re- 
 verses an order setting aside a judgment taken by default, because the 
 defendant was not duly served, the direction of the Appellate Term 
 awarding costs to the appellant is final, and may be enforced as in 
 case costs are awarded by final judgment. Szerlip v. Baicr, 21 Misc. 
 Rep. 692, 47 N. Y. Supp. 1081. See also Bradley 8. Co. v. Meinhold, 
 23 Misc. Rep. 458, 52 N. Y. Supp. 679. 
 
 Tabulated costs and fees. — (See end of § 356. 
 
 § 346. Costs upon appeal ; amount. — Upon an appeal, pro- 
 vided for in this act, costs when awarded must be as follows, 
 besides disbursements : 
 
 To the appellant upon reversal, thirty dollars. 
 
 To the respondent upon affirmance, twenty-five dollars. 
 
 Notes to section 346. 
 
 This section is the same as section 3067 of the Code of Civil Procedure. 
 
 By section 341, the clerk of the court must tax the costs on appeal. 
 
 Tabulated costs, etc. — See end § 356. 
 
 Judgment costs on reversal. — On appeal from a judgment the appel- 
 lant on reversal is entitled to $30 costs, besides cost of the court below. 
 Clark v. Carroll, 61 How. Pr. 47. 
 
 Order opening a judgment, reversal of. — Where a justice makes an 
 order opening a judgment, under section 1367 of the Consolidation Act, 
 as amended by chapter 748 of the Laws of 1896, providing that from 
 such an order "an appeal shall lie as from a judgment," the provisions 
 of section 3067 of the Code of Civil Procedure apply to the matter of 
 costs, and a party who successfully appeals from the order is, by the 
 terms of that section, entitled to $30 costs upon a reversal. Colioell v. 
 Devlin, 20 Misc. Rep. 616. 
 
 Upon the reversal of an order opening a default without stating the 
 reason therefor, in which case the cause is remitted to the justice for a
 
 452 Costs and Fees. § 347. 
 
 rehearing, the costs to the successful appellant are $10 and disburse- 
 ments, as on appeal from an order of the Supreme Court, and not the 
 $30, as on appeal from a judgment of the Municipal Court, provided 
 for in Code Civ. Proc, § 3067. Strassner v. Thompson, 40 App. Div. 
 28, 57 N. Y. Supp. 546. See also Sandoioitz v. Duane, 30 Misc. Rep. 
 630, 62 X. V. Supp. 744. 
 
 Printing brief. — Disbursements for printing a brief on an appeal 
 from this court not taxable. Mayer v. Friedman, 30 Misc. Rep. 364. 
 
 § 347. Fees payable to clerks. — There shall be paid to the 
 clerks of the court, the following sums as court fees in an 
 action, and there shall be no others. 
 
 1. Upon the issuing of a summons, one dollar. 
 
 2. For placing cause upon the calendar of court, one dol- 
 lar, to be paid upon the return of the summons. 
 
 3. For a return upon an appeal from a judgment or order, 
 two dollars. 
 
 4. For issuing an order of arrest, or a warrant of attach- 
 ment, one dollar. 
 
 5. For entry of judgment upon confession, one dollar. 
 
 C. For trial by jury of six, four dollars and fifty cents; 
 for trial by jury of twelve, nine dollars. 
 
 7. For certifying a copy of a paper on file in the clerk's 
 office, ten cents for each folio of one hundred words, except 
 return upon appeal. 
 
 All of the above fees shall be prepaid before the service 
 shall be performed. 
 
 Notes to section 347. 
 
 This section supersedes sections 1416 and 1417 of the Consolidation 
 Act (Laws 1882, chap. 410), which were taken from Laws 1857, chap. 
 344, §§ 67 and 68, except as to section 1416, the amendment of Laws 
 1887, chap. 307, and the repeal of subdivision 3, Laws 1886, chap. 678, 
 and as to section 1417, the amendment of Laws 1868, chap. 308. Sec- 
 tion 1417 is also taken from Laws 1857, chap. 295, §§ 7 and 8, Laws 
 1874, chap. 741, § 4. 
 
 The last sentence is taken from section 3281 of the Code of Civil 
 Procedure. Section 1429 of the Consolidation Act was a similar pro- 
 vision. 
 
 The fees are now the same whether the amount demanded in the 
 summons is less or over $50, and this distinction, contained in sections 
 1416 and 1417 of the Consolidation Act, has been abolished.
 
 §§ 348, 349. Costs and Fees. 453 
 
 The " trial fee " is now a fee of $1 in all cases for placing the action 
 on the calendar, which nullifies the decisions in Matter of Hale, 32 
 Misc. Rep. 104, 05 N. Y. Supp. 419; Matter of Du Bois, 30 Misc. Rep. 
 488, and there is now no longer any return trial fee in any case. 
 
 Clerks are to have no fees for their own use. See § 347. 
 
 Fire commissioner. — No fees or costs in actions to recover a penalty. 
 Charter, S 773, until changed by the board of aldermen. 
 
 Poor person to pay jury fees. Section 40. 
 
 Tabular statement of fees. — See end of § 356. 
 
 § 34S. Employee's action; no fees. — When the action is 
 brought by an employee against an employer for services 
 performed by such employee, male or female, the clerks of 
 this court shall not demand or receive any fees whatsoever 
 from the plaintiff or his agents or attorneys in such action, 
 if the plaintiff shall present proof by his own affidavit that 
 his demand is less than fifty dollars, that he is a resident of 
 the city of New York, that he has a good and meritorious 
 cause of action against the defendant, and the nature thereof; 
 that he has made either a written or a personal demand upon 
 the defendant or his agent or representative, for payment 
 thereof, and that payment was refused. Except that if the 
 plaintiff shall demand a trial by jury, he must pay to the 
 clerk the fees therefor prescribed in this act. 
 
 Notes to section 348. 
 
 This section is taken from section 1416 of the Consolidation Act 
 (Laws 1882, chap. 410), as amended by Laws 1887, chap. 309. 
 
 The jury fee is $4.50. See § 44. 
 
 See also tabulated fees at the end of § 356. 
 
 Nurse. — Where services are rendered by a woman as a nurse in a 
 family, she is entitled to the benefit of section 3221 of the Code of 
 Civil Procedure, section 1405 of the Consolidation Act, but she cannot 
 have $10 costs under sections 3222 (this section) and 3131 (relating 
 to a justice court in the city of Brooklyn) of the Code of Civil Pro- 
 cedure. Dillon v. Porter, 12 Week. Dig. 207. 
 
 § 349. Fees, property of city. — Except marshals' and 
 jurors' fees, all moneys paid to the clerks of this court for 
 fees shall be the property of the city of New York. 
 
 Note to section 349. 
 
 This section is new.
 
 454 Costs a.m. Fees. §§350,351,352. 
 
 § 350. Fees on docket of judgment, in county clerk's office. — 
 When a judgment is docketed by a county clerk upon a tran- 
 script from a clerk of this court, he shall add to the amount 
 of the judgment set forth in said transcript, a charge for 
 docketing judgment in said office, the fee of the county 
 clerk for issuing an execution and the sheriff's fees for re- 
 ceiving and returning one execution thereof. 
 
 Notes to section 350. 
 
 This section is taken from section 1420 of the Consolidation Act 
 (Laws 1882, chap. 410), which was originally Laws 1857, chap. 344, 
 § 70. See Laws 1853, chap. G17, §§ 3, 4. 
 
 See Costs. Duty of clerk on taxation. § 343. 
 
 Tabulated costs and fees. — See end of § 356. 
 
 § 351. Juror's fees. — Every person summoned as a juror 
 shall he entitled to a fee of twenty-five cents, to be paid as 
 provided in this act. 
 
 Note to section 351. 
 
 See also sections 231 and 235, " Trial by jury," etc. 
 
 §352. Witnesses' fees. — A witness in an action or sum- 
 mary proceeding, pending in this court, or before a commis- 
 sioner appointed by this court, or before a justice of this 
 court, taking a deposition to be used in a court not of rec- 
 ord of another state or territory of the United States is 
 entitled, except where another fee is specially prescribed by 
 law, to twenty-five cents for each day's attendance; and if 
 he resides more than three miles from the place of attend- 
 ance, to eight cents for each mile going to the place of 
 attendance. 
 
 Notes to section 352. 
 
 This section is taken from sections 3327 and 3318 of the Code of 
 Civil Procedure, relating to justices' courts. 
 
 See also section 197, " How subpoena served,** and section 199, " How 
 executed ; fees thereupon." 
 
 Expert. — An expert witness is not bound to testify without compen- 
 sation (People v. Montgomery, 13 Abb. N. S. 207), but he cannot get 
 any expenses other than legal fees. Fuller v. Mattice, 14 Johns. 357.
 
 § 353. Costs and Fees. 455 
 
 And he cannot recover his fees from the justice; his remedy is against 
 the party calling him. Andrews v. Bates, 5 Johns. 351; Watts v. Van 
 Ness, 1 Hill, 70. 
 
 Disbursements for the services of expert witnesses, above the witness 
 fees fixed by statute, cannot be taxed in the District Courts. Randall 
 v. Morning Journal Assn., 22 Misc. Rep. 715, 49 N. Y. Supp. 1064. 
 
 Parties, attorneys, etc.; when not allowed fees. — A party to an 
 action or a special proceeding is not entitled to a fee, for attending as 
 a witness therein, in his own behalf, or in behalf of a party who pleads 
 jointly, or is united in interest with him; and an attorney or counsel, 
 in an action or a special proceeding, is not entitled to a fee for attending 
 as a witness therein, in behalf of his client. Code Civ. Proc, § 3288. 
 
 Settlement of the suit or a postponement discharges the witness's 
 liability to attend court, and does not impair his right to retain the 
 money paid to him. Ford v. Monroe, 6 How. Pr. 206. 
 
 § 353. Stenographer's fees. — In all cases of appeal from 
 an order or judgment made or rendered in this court, where 
 a transcript of the stenographer's minutes of the testimony 
 given on the trial of* hearing, becomes a necessary part of 
 the return on appeal, the stenographer's fees for making 
 up such transcript shall be ten cents for every one hundred 
 words, and shall be paid in the first instance by the appel- 
 lant, and afterwards taxable by him as a disbursement on 
 the appeal. 
 
 Notes to section 353. 
 
 This section is taken from section 1367, subdivision 2 of the Charter 
 (Laws 1897, chap. 378), which was formerly section 1439 of the Con- 
 solidation Act, and the same as Laws 1874, chap. 504, § 1. 
 
 The change is on the increase to double the fees, from five to ten 
 cents for every one hundred words, the same as is paid in courts of 
 record. 
 
 Contempt. — A stenographer will be punished for contempt for 
 wrongfully refusing to deliver a copy of his minutes unless paid in 
 excess of the statutory rate. Cavanagh v. O'Neill, 20 Misc. Rep. 233. 
 
 Justice; no copy minutes for. — There is no provision of law justify- 
 ing a direction to the plaintiff to furnish the justice with a copy of the 
 stenographer's minutes and include the expense in the costs as part of 
 a judgment rendered in plaintiff's favor. Cohen v. Weill, 32 Misc. Rep. 
 198, 65 X. Y. Supp. 695. 
 
 Minutes of. — Must be furnished clerk within ten days after the fees 
 therefor have been paid. See § 317. 
 
 * So in original.
 
 456 Costs and Fees. § 354. 
 
 § 354. Marshal's fees. — Fees shall be allowed to marshals 
 for services rendered under the provisions of this act, as 
 follows: For serving a summons, order of arrest, or attach- 
 ment on one defendant, one dollar, and for every additional 
 defendant actually served, fifty cents; for a copy of every 
 summons delivered on request, or served, fifteen cents; for 
 a copy of every attachment and of the inventory of the prop- 
 erty attached, fifty cents; for serving and levying an exe- 
 cution or selling under an attachment, five cents for every 
 dollar collected to the amount of one hundred dollars, and 
 two and a half cents for every dollar collected over one hun- 
 dred dollars; for every mile, going only, more than one mile, 
 when serving a summons, order of arrest, attachment or exe- 
 cution, six cents, to be computed from the place of abode 
 of the defendant, or where he shall be found, to the place 
 where the same is returnable; for summoning a jury, one 
 dollar and fifty cents; for going with the plaintiff or defend- 
 ant to secure security, when security is ordered by the court, 
 one dollar; for taking the defendant into custody on an order 
 of arrest, execution, or commitment, two dollars and forty 
 cents, serving a subpa?na, twenty-five cents; for every levy 
 actually made by virtue of an execution, one dollar; for 
 serving a writ of possession or restitution, putting any per- 
 son entitled into the possession of premises, and removing 
 the tenant, when such powers can be exercised by a marshal, 
 one dollar; and the same fees for traveling to serve the same 
 as are herein allowed for serving a summons; for advertis- 
 ing for sale any property by virtue of any execution or at- 
 tachment issued out of a district court, or by any justice 
 thereof, one dollar; for every day necessarily employed in 
 attending such sale, one dollar. The said marshals shall 
 perform all other services required of them by law, without 
 any fees or compensation whatever therefor, and no other 
 fees, charges, or compensation shall be allowed to, demanded, 
 or charged by any of the said marshals. 
 
 Notes to section 354. 
 
 This section is section 1710 of the Consolidation Act (Laws 1882, 
 chap. 410), unchanged. Obviously it should have been changed. The
 
 § 355. Costs and Fees. 457 
 
 marshal is allowed one dollar for going with plaintiff or defendant " to 
 secure security, when security" is ordered by the court, and for ad- 
 vertising for sale any property by virtue of any execution or attach- 
 ment issued out of " a District Court, or by any justice thereof," one dol- 
 lar. The " District Courts " have been abolished since January 1, 1898 
 (see § 1351, Charter) ; there is only one court now, and "the court" 
 and not the justice, grants or issues the warrant. See § 75. 
 
 There is no provision made for the service of a complaint with the 
 summons by the marshal. Under section 1419 of the Consolidation Act 
 marshals were allowed twenty-five cents for every copy of complaint 
 served, in addition to the $1 for serving the summons. This provision 
 has been omitted. 
 
 Prior to section 1710 of the Consolidation Act (Laws 1882, chap. 
 410), Laws 1862, chap. 484, § 15, as amended by Laws 1864, chap. 569, 
 § 3, regulated the fees of marshals. 
 
 Defaulting witness. — Fees on warrant of attachment against. See 
 §§ 198, 199. 
 
 Bargains. — Any bargain between a plaintiff in an execution and the 
 officer holding it, for payment of a compensation beyond that allowed 
 by law for the collection, is void. Downs v. M'Glynn, 2 Hilt. 14, 6 Abb. 
 Pr. 241. 
 
 Jury notice to be served by marshal. See § 231. 
 
 Keeper's fees. — The fees of a keeper for services not being fixed or 
 allowed by law, an agreement to pay such fees, if not illegally extorted, 
 is valid in law. Maguin v. Rosenthal, 62 How. 504. 
 
 No other fees, charges, or compensation shall be allowed to, de- 
 manded, or charged by any of the said marshals. See end of § 354. 
 
 Tabulated statement of marshal's fees. — See end of § 356. 
 
 Talesmen notice to be served by marshal. See § 236. 
 
 § 355. Costs on order to prosecute marshal's bond. — When- 
 ever an order shall be made pursuant to law, directing that 
 the bond of a marshal be prosecuted in this court, the justice 
 granting the motion and making the said order may award 
 the aggrieved party his reasonable costs on said motion, not 
 exceeding the sum of ten dollars, which shall be included in 
 the judgment obtained upon such bond. 
 
 Note to section 355. 
 
 This section is the same as section 1425 of the Consolidation Act 
 (Laws 1882, chap. 410), which was taken from Laws 1862, chap. 484, 
 § 7.
 
 458 Costs am) Fees. §356. 
 
 §356. Fees in summary proceedings. — In summary pro- 
 ceedings to recover the possession of lands, the fees of offi- 
 cers, except where a fee is specially given in chapter twenty- 
 one of the code of civil procedure, must be at the rate al- 
 lowed by law, in an action in this court, and are limited in 
 like manner, unless the application is founded upon an alle- 
 gation of forcible entry or forcible holding out; in which 
 case the judge or justice may award to the successful party 
 a fixed sum as costs, not exceeding fifty dollars, in addition 
 to his disbursements. The final order awarding costs may 
 be docketed, and an execution may be issued to collect the 
 costs awarded thereby in like manner as if the final order 
 was a judgment rendered in the court in which the judge or 
 justice is presiding officer. 
 
 Notes to section 356. 
 
 This section is the same as section 1418 of the Consolidation Act 
 (Laws 1882, chap. 410), with the exception tha"t the words, "in this 
 court" are suhstituted for "in said courts," and the word "justice" 
 is added in the last line. 
 
 See also § 354, " Marshal's fees," and note to § 1, subd. 12. 
 
 Note. — There are no sections from 356 to 360. 
 
 TABULATED STATEMENT OF COSTS AKD FEES. 
 
 Costs; adjournment. — In discretion of the justice, besides dis- 
 bursements $10 00 
 
 (See § 336.) 
 Id.; amending, modifying, or setting aside judgment. — Costs 
 
 in discretion of the court. (See § 256.) 
 Id.; amendment of pleading. — In the discretion of the court, 
 
 not to exceed 10 00 
 
 (See § 335.) 
 
 Id.; appeal. — To the appellant upon reversal 30 00 
 
 (See § 346.) 
 
 Id. — To the respondent upon affirmance 25 00 
 
 (See § 346.) 
 
 Id. — Stipulation that judgment be reversed 5 00 
 
 (See § 325.) 
 Id.; bastardy and abandonment bonds. — In addition to the 
 other costs therein, court shall make and clerk enter in 
 the judgment an additional allowance of 10 per centum of 
 the judgment. (See § 339.)
 
 Tabulated Statement of Costs and Fees. 451) 
 
 Id.; building department. — • Xot liable for costs unless specially 
 ordered. (See § 151.) 
 
 Id.; default, opening. — Court may award not exceeding $10. 
 (See § 256.) 
 
 Id.; defendant; nonappearance of plaintiff. — The same 'as pre- 
 scribed in section 332, subdivision 3, based upon plaintiff's 
 demand. 
 
 In action to recover a chattel the 'amount is governed by the 
 value thereof as set forth in plaintiff's 'affidavit. (§ 332, 
 subd. 0.) 
 
 Id.; id.; counterclaim. — For $50 and under $100 $5 00 
 
 For $100 and under $200 7 50 
 
 For $200 and under $300 10 00 
 
 For $300 and under $400 12 50 
 
 For $400 or over 15 00 
 
 (§ 332, subd. 8.) 
 
 Id.; id. — After trial of issue of fact the same as prescribed in 
 section 332, subdivision 2, based upon the amount of plain- 
 tiff's demand. (§ 332, subd. 5.) 
 
 In action to recover a chattel the 'amount is governed by the 
 value thereof as set forth in plaintiff's affidavit. (§ 332, 
 subd. 5.) 
 
 Id.; id.; counterclaim. — After trial of issues of fact. For $50 
 
 and under $100 10 00 
 
 For $100 and under $200 15 00 
 
 For $200 and under $300 20 00 
 
 For $300 and under $400 25 00 
 
 For $400 or over, ". 30 00 
 
 (§ 332, subd. 7.) 
 
 Id.; id.; increased. — Upon final judgment in action for recov- 
 ery of money only, a chattel or final order in a special 
 proceeding, instituted by a State writ, the same costs as 
 prescribed in section 332, and in addition thereto, one-half 
 thereof. (See § 333.) 
 
 Id.; demurrer.— Where judgment rendered on trial, same costs 
 as if judgment upon default in the action. (See § 334.) 
 
 As a condition to plead over, in the discretion of the justice, 
 
 not to exceed 10 00 
 
 (See § 334.) 
 
 Id.; discontinuance upon answer of title. — Party in whose 
 favor final judgment is obtained in new action is entitled 
 to costs ; except where final judgment is rendered in favor 
 of defendant, upon trial of issue of fact, unless it is certi- 
 fied that title to real property came in question on the 
 trial. (See § 337.)
 
 4G0 Tabulated Statement of Costs and Fees. 
 
 Id.; either party. — Where amount demanded is under $.50, or 
 where, in addition thereto, defendant interposes a counter- 
 claim under $50, the court may, in its discretion, award 
 
 not exceeding $5 00 
 
 (§ 332, subd. 1.) 
 
 Id.; forcible entry or forcible holding out. — In addition to dis- 
 bursements to successful party 50 00 
 
 (See § 35G.) 
 
 Id.; health department. — Recovery for less than $50, etc 10 00 
 
 (See Charter, §§ 1262, 1267.) 
 
 Id.; neither party to recover. — (See § 331.) 
 
 Id.; plaintiff; nonappearance or failure of defendant to answer. 
 
 For $50 and under $100 5 00 
 
 For $100 and under $200 7 50 
 
 For $200 and under $300 10 00 
 
 For $300 and under $400 12 50 
 
 For $400 or over 15 00 
 
 (§ 332, subd. 3.) 
 
 In action to recover a chattel the amount is governed by the 
 value of the chattel as determined in the judgment. (§ 332, 
 subd. 3.) 
 
 Id.; id.— After trial of issue of fact. For $50 and under $100, 10 00 
 
 For $100 and under $200 15 00 
 
 For $200 and under $300 20 00 
 
 For $300 and under $400 25 00 
 
 For $400 or over 30 00 
 
 (§ 322, subd. 2.) 
 
 In action to recover a chattel the amount is governed by the 
 value of the chattel as determined in the judgment. (§ 332, 
 subd. 2.) 
 
 Id.; id.; against counterclaim. — Where the action is for less 
 than $50, and defendant interposes <a counterclaim for $50 
 or over, and plaintiff recovers judgment upon the non- 
 appearance of defendant, the same sum as plaintiff would 
 be entitled to recover on default if the amount of his claim 
 was the amount of defendant's counterclaim. (§ 332, 
 subd. 4.) 
 Id.; settlement before trial the same as in section 332, sub- 
 division 3, determined by the amount of settlement. (See 
 § 332, subd. 9.) 
 Id.; id. — After trial, and before entry of judgment, same as 
 section 332, subdivision 2, determined by the amount of 
 settlement. 
 
 /
 
 Tabulated Statement of Costs and Fees. 461 
 
 Id.; poor person. — Where costs awarded, must be paid to at- 
 torney, when collected from adverse party, and distributed 
 among the attorneys and counsel, as the court directs. 
 (See § 50.) 
 
 Id.; removal of action to City Court the same costs as if the 
 action had been commenced in that court. (§ 332.) 
 
 Id.; stipulation on appeal that judgment be reversed $5 00 
 
 (§ 325. 
 
 Id.; title to real property, answer of. — See "Discontinuance," 
 and § 337.) 
 
 Id.; id. — Where complaint dismissed pursuant to section 184 
 defendant entitled to same costs as in subdivision 2 of 
 section 332. (See § 338.) 
 
 Id.; vacating, amending, modifying, or setting aside judgment, 
 in court's discretion. (See § 256.) 
 
 Id.; working-woman. — In addition to the costs allowed in this 
 
 court, where judgment is less than $10 5 00 
 
 Over $10 10 00 
 
 Upon a settlement, full costs on sum received on settlement. 
 (See § 340.) 
 
 CLERK'S FEES. 
 
 Adjournment granted after return of jury, clerk must receive 
 
 either $4 50 or $9 00 
 
 (See §§ 238, 231, and 234.) 
 
 Appeal from judgment or order, return on (§ 347) 2 00 
 
 Arrest, issuing order of ( § 347 ) 1 00 
 
 Attachment, issuing warrant of ( § 347 ) 1 00 
 
 Calendar, placing action on (§ 347) 1 00 
 
 Certifying copy paper on file, except return on appeal, for each 
 
 folio " of one hundred words " (§ 347, subd. 7) 10 
 
 Certificate to commissioner of jurors of fine imposed by judge 
 on juror failing to attend. Failure to transmit, for each 
 
 offense (§ 233) 150 00 
 
 City clerk, for filing transcript of judgment against a marshal 
 
 in his office (§ 295) % ... 50 
 
 City of New York, or any department, board, or officer thereof 
 
 not to pay any fees. (§ 29.) 
 Id. — All moneys paid to the clerk, except marshals' and jurors' 
 
 fees, shall be the property of. (§ 349.) 
 Clerk to account for and pay all fees into the city treasury 
 (§ 283), and all fees paid to him, except marshals' and 
 jurors' fees shall be the property of the city of New York. 
 (§ 349.) 
 Confession, judgment on ( § 347 ) 1 00
 
 462 Tabulated Statement of Costs and Fees. 
 
 Corporation counsel to pay no fees in actions by the city of 
 Now York. (§ 29.) 
 
 Docketing judgment upon transcript from clerk of this court. 
 (See §§ 350, 3304 and 3307, Code Civ. Proc.) 
 
 Employee's action. — Male or female. Summons to be free. 
 (§ 44.) 
 Clerk shall not demand or receive any fees whatsoever 
 
 (§ 348), except a jury trial of six is demanded (§44), $4 50 
 And for a jury of twelve ( § 234) 9 00 
 
 Execution. — Issuing and sheriff's fees for receiving and re- 
 turning. (§§ 350, 3304 and 3307, Code Civ. Proc.) 
 
 Fees paid to the clerk to be property of the city of New York, 
 except marshals' and jurors' fees. (§ 349.) 
 
 Judgment on confession ( § 347) 1 00 
 
 Id. — Docketing, upon transcript from clerk of this court. (See 
 §§ 3304 and 3307.) 
 
 Jurors and jury fees. — See tabulated statement of same, post. 
 
 Poor person may prosecute without paying any fees to any 
 officer. Code of Civil Procedure, section 461, made appli- 
 cable by section 3347, subdivision 3, of said Code. (See 
 notes to § 45.) 
 
 Return on appeal from judgment or order (§ 347, subd. 3) . . . . 2 00 
 
 Summary proceedings. — (See §. 356.) 
 
 Summons, issuing ( § 347 ) 1 00 
 
 Id. — Employee's action, male or female, summons to be free. 
 (§ 348.) 
 
 Id. — City of New Y'ork, or any department, board, or officer 
 thereof not to pay any fees. (§ 29.) 
 
 Id. — Serving, by corporation counsel, entitled to fees. (§ 302.) 
 
 Id. — No fee to any person other than a marshal, for serving. 
 (§ 302.) 
 
 Warrant of attachment, issuing (§ 347) 1 00 
 
 JUROR'S AXD JURY FEES. 
 
 Juror failing to attend, fined (§ 233) $25 00 
 
 Clerk fffiling to transmit to commissioner of jurors certifi- 
 cate of fine imposed, for each offense (§ 233) 150 00 
 
 Id.— For summoning (§§ 351 and 235) 25 
 
 Jury trial, of six (§§ 44, 231, 347) 4 50 
 
 Id., of twelve (§§ 234, 347) 9 00 
 
 Id.; poor person. — (See notes to § 45.) 
 
 Id.; adjournment granted after return of jury, clerk must re- 
 ceive either $4 50 or 9 00 
 
 (§§ 238, 231, 234.)
 
 Tabulated Statement of Costs and Fees. 463 
 
 Id.; employee, summons free; if he demands jury trial must 
 
 pay $4 50 or $9 00 
 
 (§§ 44 and 348.) 
 Id. — Fee can only be taxed or included in the judgment once. 
 
 (§ 238.) 
 Stenographer. — For making up transcript of minutes of testi- 
 mony, for every 100 words (§ 353) 10 
 
 WITNESS' FEES. 
 
 Attendance each day (§§ 197 and 352) 25 
 
 Defaulting witness or party procuring warrant to pay fees of 
 
 marshal. (§§ 199, 198.) 
 Mileage from his residence, more than three miles to place of 
 
 attendance for each going to such place (§ 352 and 197), 08 
 
 Neglect or refusal to obey subpoena, all damages which party 
 
 sustains and fine or imprisonment under section 8 (see 
 
 §200) 50 00 
 
 MARSHAL'S FEES, ETC. 
 
 Section 354. — Serving summons, order of arrest, or attachment 
 
 on one defendant $1 00 
 
 For every additional defendant actually served 50 
 
 Copy of every summons delivered on request, or served ... 15 
 
 Copy of every (attachment and of inventory of property 
 
 attached 50 
 
 Serving and levying an execution, or selling under an at- 
 tachment, for every dollar collected to the amount of 
 
 $100 05 
 
 Over $100 02*4 
 
 For every mile, going only, more than one mile, when serv- 
 ing a summons, order of arrest, attachment, or execution, 
 to be computed from place of abode of defendant, or 
 
 where found, to the place where same is returnable 06 
 
 Summoning jury (see also § 231) 1 50 
 
 Going with pkuntiff or defendant to " secure security, when 
 
 security " ordered by the court 1 00 
 
 Taking defendant into custody on order of arrest, execu- 
 tion, or commitment 2 40 
 
 Serving subpoena 25 
 
 Levy actually made on execution 1 00 
 
 Serving writ of possession, or restitution, putting person in 
 possession of premises and removing tenant, when such 
 powers can be exercised by marshal 1 00
 
 464 Definitions ; Effect of Act, Etc. 
 
 Section 354 — Continued. 
 
 Same fees for traveling to serve the same as allowed for 
 
 serving summons. 
 Advertising for sale any property by virtue of an execu- 
 tion or attachment issued out of this court, or by a 
 
 justice thereof ,. . . . $1 00 
 
 Every day necessarily employed attending such sale 1 00 
 
 To perform all other services required by law, without fee 
 or compensation, and no other fees, charges, or com- 
 pensation are allowed to, demanded by, or chargeable. 
 
 Section 104. — Fees and expenses for keeping property replevied 
 to be taxed by the court. 
 
 Section 302. — Xo fee to any person other than ia marshal for 
 serving process. 
 
 Section 355. — On order to prosecute bond, may award ag- 
 grieved party costs, to be included in the judgment obtained 
 upon such bond, not exceeding 10 00 
 
 Section 199. — Serving warrant of attachment on defaulting 
 witness, fees to be paid by person against whom issued, 
 unless reasonable excuse shown to satisfaction of court, 
 in which case, party procuring warrant must pay them, 
 and if he recovers costs, the amount must be allowed to 
 him as part thereof. " 
 
 Section 303. — May serve process and mandates of this court, 
 in any part of the city of New York. 
 
 Note.— There are no sections from 356 to 360. 
 TITLE XI. 
 
 Definitions; effect of act; laws repealed. 
 
 Section 360. Definitions. 
 
 361. Saving clause. 
 
 362. Construction. 
 
 363. Sections of the Code not applicable. 
 
 364. Laws repealed. 
 
 365. Act may be cited. 
 
 366. When to take effect. 
 Schedule of laws repealed. 
 
 Table showing disposition of laws repealed. 
 
 Note to title XI. 
 
 At the end of schedule of laws repealed and preceding " Table Show- 
 ing Disposition of Laws Repealed," the following note appears: " (This 
 table to be eliminated from act as an explanation. ) " See notes to 
 " Notes to Table Showing Disposition of Laws Repealed," post.
 
 §§ 360, 361. Definitions; Effect of Act, Etc. 465 
 
 § 360. Definitions — Words used in this act in the past or 
 present tense include the future as well as the past or pres- 
 ent; words used in the masculine gender include the feminine 
 and neuter; the singular number includes the plural and the 
 plural the singular; the word " person" includes a corpora- 
 tion as well as a natural person; writing includes printing, 
 printed or typewritten matter; " oath " includes affirmation 
 or declaration; " signature " or " subscription " includes 
 " mark," when the person cannot write, his name being writ- 
 ten near it. The following terms also named in this act 
 have the signification attached to them in this section, un- 
 less otherwise apparent from the context : 
 
 1. The word " attorney " signifies an attorney of the su- 
 preme court of this state, duly licensed to practice as such. 
 
 2. The word " district " signifies a district of the municipal 
 court. 
 
 3. The word " clerk " signifies the clerk or assistant clerk. 
 
 4. The word " marshal " signifies any person authorized 
 to perform the duties of a marshal. 
 
 5. The word " corporation " includes every association 
 having any corporate rights, whether created by special acts 
 of the legislature or under general laws. 
 
 Note to section 360. 
 
 This section is taken from section 1437 of the Consolidation Act 
 (Laws 1882, chap. 410), which was the same as section 80, chapter 344, 
 Laws 1857. 
 
 § 361. Saving clause. — The repeal of a law or any part of 
 it specified in the annexed schedule, shall not affect or im- 
 pair any act done or right accruing, accrued or acquired, or 
 liability, forfeiture or penalty incurred prior to September 
 first, nineteen hundred and two, under or by virtue of any 
 law so repealed, but the same may be asserted, enforced, 
 prosecuted or inflicted, as fully and to the same extent as 
 if such law had not been repealed; nor shall this act create 
 a vacancy in any office or employment. All actions and 
 proceedings commenced under or by virtue of the laws so 
 repealed and pending on September first, nineteen hundred 
 30 ^
 
 466 Definitions; Effect of Act, Etc. §§362,363. 
 
 and two, may be prosecuted in the same manner and with 
 the same effect as they might under laws then existing, un- 
 less it shall be otherwise specially provided. Nothing in this 
 act contained, shall be construed as affecting any existing 
 provision of law so far as provisions apply to any portion 
 of the state, other than the city of New York. 
 
 Note to section 361. 
 
 The commissioners on revision say of this section: "The foregoing 
 is an adaptation from section 2143 of the Consolidation Act, and sec- 
 tion G30 of the Provisional Justices' Code of 1899, as a saving clause." 
 
 § 362. Construction. — The provisions of this act, so far 
 as they are substantially the same as those of laws existing 
 prior to September first, nineteen hundred and two, shall 
 be construed as a continuation of such laws, modified or 
 amended, according to the language employed in this act, 
 and not as a new enactment ; a reference in laws not repealed, 
 to provisions of law incorporated into this act and repealed, 
 shall be construed as applying to the provisions so incor- 
 porated. Where, in the charter, as amended in nineteen 
 hundred and one, the term " hereinafter prescribed " or 
 words equivalent thereto are used in sections relating to the 
 municipal court, which are unrepealed, the reference shall 
 be deemed to extend to this act. 
 
 Notes to section 362. 
 
 The commissioners on revision say of this section: "The foregoing 
 is taken from section 631 of the Provisional Justices' Code, of 1899, as 
 a rule of construction, and with necessary additions." 
 
 When earlier law repealed. — When a section of a prior act has been 
 omitted, and provisions upon the same subject, somewhat dissimilar, 
 are contained in the Consolidation Act, the earlier act is repealed. Mat- 
 ter of N. Y. Inst, for Deaf and Dumb, 121 N. Y. 234; s. c, 25 Abb. N. C. 
 31, with note. 
 
 § 363. Sections of the code not applicable. — The provisions 
 of sections thirty-two hundred and seven to thirty-two hun- 
 dred and fourteen, inclusive, of the code of civil procedure, 
 do not apply to actions or proceedings in this court, except 
 as specially provided in this act.
 
 §§ 364, 365, 366. Definitions; Effect of Act, Etc. 467 
 
 Note to section 363. 
 
 The sections above mentioned relate to the District Courts of the 
 city of New York, and to the justices' courts of the cities of Albany 
 and Troy. While this court is a continuation, consolidation, and re- 
 organization of the District Courts (Worthington v. London, (i. cG A. 
 Co., 164 N. Y. 81, and notes to Charter, § 1351), sections 3207 to 3214 
 of the Code of Civil Procedure have become obsolete, and superseded by 
 other laws, and they have been left in force only as to the justices' 
 courts in Albany and Troy. 
 
 § 364. Laws repealed. — The laws or parts thereof, speci- 
 fied in the schedule hereto annexed and all acts amendatory 
 thereof or supplemental thereto, in force when this act 
 takes effect, are hereby repealed. 
 
 Note to section 364. 
 
 The commissioners on revision say of this section : " The foregoing 
 section is taken from the Provisional Justices' Code of 1899 as to laws 
 repealed." 
 
 § 365. Act may be cited. — This act may be cited as the 
 municipal court act of the city of New York. 
 
 § 366. When to take effect. — This act shall take effect on 
 the first day of September, nineteen hundred and two. 
 
 SCHEDULE OF LAWS KEPEALED. 
 Of, " The Greater New York charter, as enacted in 1897 and 
 amended in 1901," the following sections : 
 
 Laws of Chapter. Section. Subject-matter. 
 
 1901. . . . 466. . . . 1364. . . . Jurisdiction of municipal 
 
 court. 
 
 1901 466 1365 Jurisdiction limited. 
 
 1901 466 1366 Removal of causes. 
 
 1901 466 1367 Appeals. 
 
 1901 466 1368 Process. 
 
 1901 466 1369 Procedure. 
 
 1901 466 1370 Actions in what district 
 
 brought.
 
 468 
 
 Schedule of Laws Repealed. 
 
 Laws of 
 
 Chapter. 
 
 Section 
 
 1901. . . 
 
 . 460... 
 
 1371. 
 
 1901... 
 
 . 466... 
 
 1372. 
 
 1901... 
 
 . 466... 
 
 1374. 
 
 1901... 
 
 . 466... 
 
 1375. 
 
 1901... 
 
 . 466... 
 
 1376. 
 
 1901... 
 
 . 466... 
 
 1377. 
 
 1901... 
 
 . 466... 
 
 . 1379. 
 
 1901. . . 
 
 . 466... 
 
 . 1380. 
 
 1901... 
 
 . 466... 
 
 . 1384. 
 
 1901... 
 
 . 466... 
 
 . 1428. 
 
 1901.... 
 
 . 466... 
 
 1429. 
 
 Subject-matter. 
 
 Whore court hold. 
 Seals, etc. 
 Board of justices. 
 Board to make rules. 
 Concurrence of majority 
 
 of board. 
 Rules of supreme court 
 
 applicable. 
 Justice to administer 
 
 oaths, etc. 
 Access to court house. 
 Summons and costs in 
 
 action by city. 
 Powers, duties and fees 
 
 of marshals. 
 Removal of marshals. 
 
 Notes to schedule of laws repealed. 
 
 Sections 1373, 1378, and 1383 omitted from said schedule are pre- 
 served as charter amendments. See notes to title VIII, art. I, under 
 the contents, head of section 282. 
 
 Sections 1381, 1382 were repealed by the Charter amendments of 1901. 
 
 Sections 1384 to 1424 are not a part of the Municipal Court Act. 
 
 Sections 1424, 1425, 1426, and 1427 are preserved as Charter enact- 
 ments. See note under title VIII, art. II, under contents, preceding 
 Charter section 1424. 
 
 Of " The New York city consolidation act, of eighteen hun- 
 dred and eighty-two," as amended to nineteen hundred and 
 two, the following sections: 
 
 Section. Subject-matter. 
 
 1284. . . . Jurisdiction. 
 
 1285 . . . . Jurisdiction in general. 
 
 1286. . . . No jurisdiction in certain cases. 
 1287 .... Removal of actions to common pleas. 
 
 1288. . . . Former jurisdiction except as modified by code 
 
 contained. 
 1289 .... Actions in what district brought. 
 1290. . . . Actions by mayor, etc.
 
 Schedule of Laws Repealed. 
 
 469 
 
 Section. Subject-matter. 
 
 1291. . . . Court where and when held. 
 
 1292. . . . Court, by whom held, etc. 
 1293 Seals. 
 
 1294. . . . Parties, appearance of. 
 
 1295. . . . Guardian ad litem for infant. 
 
 1296. . . . Action; how to be commenced. 
 
 1297. . . . Summons; requisites.. 
 1298 Return. 
 
 1299 Non-resident plaintiff. 
 
 1300. . . . Summons; mode of service. 
 
 1301 ... . Who may serve summons. 
 
 1302 .... Warrants of attachment to be served by marshal. 
 
 1303. . . . Process not to be served out of city. 
 
 1304. . . . Arrest; in what cases to be granted. 
 1305 .... Affidavit and undertaking, on. 
 
 1306. . . . Arrests to enforce game laws. 
 
 1307. . . . Order of arrest; what to direct. 
 
 1308. . . . Papers delivered to arrested person; proceeding. 
 1309 .... Proceedings when justice a witness. 
 
 1310. .. . Plaintiff to be notified of arrest. 
 
 1311. . . . Bail or deposit before return. 
 
 1312. . . . Bail may be examined. 
 
 1313. . . . Bail or deposit after return. 
 
 1314. . . . When and how defendant to remain in custody. 
 
 1315. . . . Duty of marshal in arrest proceedings. 
 
 1316. . . . Attachment; when may be granted. 
 
 1317. . . . What to be shown to procure attachment. 
 
 1318. . . . Contents of warrant. 
 1319 Undertaking. 
 
 1320. . . . Plow warrant to be executed. 
 
 1321. . . . Service of summons and warrant. 
 
 1322. . . . Undertaking, by defendant, in. 
 
 1323. . . . Third person claim; bond, etc. 
 
 1324. . . . Judgment upon bond. 
 
 1325. . . . Action on undertaking when warrant vacated. 
 
 1326. . . . Return by marshal attaching. 
 
 1327. . . . Application to vacate or modify. 
 
 1328. . . . Effect of vacating warrant.
 
 470 
 
 Sciikdule of Laws Repealed. 
 
 Section. Subject-matter. 
 
 1329. . . . Judgment where property attached. 
 
 1330. . . . Foreclosure of lien on chattel. 
 
 1331. . . . Replevin; when action can be brought. 
 
 1332. . . . Affidavit and undertaking. 
 
 1333. . . . Requisition by justice. 
 
 1334. . . . How requisition executed. 
 
 1335. . . . Return to requisition. 
 
 1336. . . . Defendant when to except to sureties; proceed- 
 
 ings thereon. 
 
 1337. . . . Defendant may reclaim chattel. 
 
 1338. . . . Justification of sureties. 
 
 1339. . . . When and to whom marshal to deliver chattel. 
 
 1340. . . . Penalty for wrong delivery by marshal. 
 
 1341. . . . Claim of title by third person. 
 
 1342 .... Defendant may demand judgment for return, 
 etc. 
 
 1343. . . . Actions on undertaking. 
 
 1344. . . . Proceedings where summons not personally 
 
 served. 
 1345 .... When action not affected by failure to replevy. 
 
 1346. . . . Pleading; takes place on return of summons; 
 
 verified complaint. 
 
 1347. . . . Certain section of the code applicable. 
 
 1348. . . . Pleadings in action on bastardy bonds. 
 1 349 .... Answer of title, 
 
 1350. . . . Idem; defendant to deliver undertaking. 
 
 1351.... Idem; new action to be brought in supreme 
 
 court. 
 
 1352. . . . Old action thereupon discontinued. 
 
 L353. . . . Penalty for failure to deliver undertaking. 
 
 1354. . . . Title appearing for plaintiff's showing. 
 
 1355. . . . Title; same cause of action and defense in new 
 
 action. 
 
 1356. . . . Answer of title one or more of several defenses; 
 
 proceedings. 
 1357.... Summary proceedings. 
 1358.... Summary proceedings; return of precept. 
 1359. . . . Summary proceedings; answer may be filed.
 
 Schedule of Laws Repealed. 
 
 471 
 
 Section. Subj.ct-matter. 
 
 1360. . . . Summary proceedings may be transferred, etc. 
 
 1361 .... Exhibition of accounts, etc. 
 
 1362. . . . Adjournments time, etc.; effect upon arrest. 
 
 1363. . . . Undertaking* by arrested defendant on adjourn- 
 
 ment. 
 
 1364. . . . Adjournment either party; undertaking. 
 
 1365. . . . Conditions may be imposed for adjournment. 
 
 1366. . . . Dismissal of action for plaintiff's failure to ap- 
 
 pear. 
 1367.... Defaults; judgments may be opened, vacated, 
 modified, etc. 
 
 1368. . . . Commissions to take testimony; code provisions 
 
 applicable. 
 
 1369. . . . Testimony de bene esse. 
 
 1370. . . . Subpoenas. 
 
 1371. . . . Trial jurors, list of, etc. 
 
 1372. . . . Trial by jury; drawing, etc. 
 
 1373. . . . Jury may be summoned; fee. 
 
 1374. . . . How summoned. 
 
 1375. . . . Talesmen. 
 
 1376. . . . Ballots of jurors summoned, but not drawn. 
 
 1377. . . . Party demanding, to deposit trial fee. 
 1378 .... Adjournments after return of jury. 
 
 1379 . . . . Jurors' qualifications tried summarily. 
 
 1380. . . . Verdict; requisites. 
 
 1381. . . . Swearing the jury. 
 
 1382. . . . Non-suit; when authorized. 
 
 1383. . . . Judgment for plaintiff on default. 
 
 1384. . . . Issues* fact and law; judgment when rendered. 
 1385 .... Judgment, when sum due exceeds jurisdictional 
 
 amount. 
 
 1386. . . . Judgment when defendant liable to arrest. 
 
 1387.... Actions may be continued before another jus- 
 tice. 
 
 1388. . . . Powers of justice while trying action. 
 
 1389. . . . Justice limited to civil jurisdiction. 
 
 1390. . . . Death or removal not to impair proceedings. 
 1391 .... Justice may administer oaths, etc. 
 
 * So in original.
 
 472 
 
 Schedule of Laws Repealed. 
 
 Section. Subject-matter. 
 
 1392. . . . Transcripts of judgments and docketing. 
 
 1393.... Execution against the person. 
 
 1394.... Replevin; judgment in, etc.; transcript. 
 
 1395. . . . Action against joint debtors. 
 
 1396. . . . Defendants not summoned to be designated. 
 
 1397. . . . Docketing judgment in another county. 
 1398 .... Judgment against marshal. 
 1399.... Execution; requisites. 
 
 1400 .... Against joint debtors. 
 
 1401. . . . Execution; arrest. 
 
 1402 .... Renewal of execution. 
 
 1403. . . . Sections of code applicable; execution. " 
 
 1404. . . . Enforcement of game laws. 
 
 1405 .... Execution in favor of working woman. 
 
 1406 .... Arrest and sale of property limited. 
 
 1407. . . . Marshal when liable to execution; creditor. 
 
 1408. . . . Return of execution; satisfaction of judgment. 
 
 1409. . . . Clerk's docket; what to contain. 
 
 1410. . . . Entries in; how made. 
 
 1411. . . . Clerk to keep index. 
 
 1412 .... Clerk must deliver books, papers, etc., to suc- 
 cessor. 
 
 1413. . . . Successor may issue execution, etc. 
 
 1414. . . . Certified copies, papers, etc., prima facie evi- 
 
 dence. 
 
 1415 .... Sections of code applicable, etc. ; contempt. 
 
 1416.... Eees; when plaintiff's demand less than fifty 
 
 dollars. 
 
 1417. . . . Fees; demand over fifty dollars. 
 
 1418. . . . Eees in summary proceedings. 
 
 1419. . . . Eees of marshals. 
 1420 Costs. 
 
 1421. . . . Costs after discontinuance in answer of title. 
 
 1422. . . . Costs in action on bastardy bonds, etc. 
 
 1423. . . . Costs in action to enforce game laws. 
 
 1424. . . . Costs in action by working woman. 
 
 1425 .... Costs on order to prosecute marshal's bond. 
 
 1426. . . . Supreme court rules made applicable.
 
 Schedule of Laws Repealed. 
 
 473 
 
 Section. 
 
 1428. 
 1429. 
 1436. 
 
 1437. 
 1438. 
 1439. 
 1440. 
 1700. 
 1701. 
 1702. 
 1703. 
 
 1704. 
 1705. 
 1706. 
 1707. 
 1708. 
 1709. 
 1710, 
 1711 
 
 Subject-matter. 
 
 Duties of clerks. 
 
 Clerks to account for and pay over fees. 
 
 Stationery, furniture, etc., furnished by corpo- 
 ration. 
 
 Definitions. 
 
 Appeals. 
 
 Stenographer's fees for minutes, etc. 
 
 Transcript of process, etc. ; effect. 
 
 Bond to be executed by marshals. 
 
 Prosecution of such bond. 
 
 In what court prosecuted. 
 
 Judgments against marshals; transcripts; execu- 
 tions. 
 
 Entry of judgment against, to be noted on bond. 
 
 Amount collected credited on bond. 
 
 Suspension by common pleas for misconduct. 
 
 Clerk of court to report cancelled bonds, etc. 
 
 Appointment waived for failure to file bond. 
 
 Process to be served by marshal. 
 
 Fees of. 
 
 Certain laws to sheriffs made applicable. 
 
 Notes to Consolidation Act sections repealed. 
 
 Section 1427 is omitted from repeal schedule, but was superseded by- 
 Charter section 1373, which is preserved as a Charter enactment. See 
 notes to title VIII, art. I, following contents and preceding section 282. 
 
 Sections 1430 to 1436, Consolidation Act, omitted from the repeal 
 schedule, have been superseded by sections 1373, 1378, and 1380 of the 
 Greater New York Charter. See notes to § 1373, Charter. 
 
 Sections 1441 to 1699, Consolidation Act, omitted from the repeal 
 schedule, have no application to this court. 
 
 OF " THE CODE OF CIVIL PROCEDURE," THE FOL- 
 LOWING: 
 
 Section. Subject matter. 
 
 3116. . . . Justice sixth district Brooklyn to be attorney. 
 
 3117. . . . Justices' jurisdiction in Brooklyn extended. 
 
 3118. . . . Justices' salaries, fees, etc. 
 
 3119. . . . Clerk; how appointed; salary, bond, etc.
 
 474: 
 
 Disposition of Laws Repealed. 
 
 Section. Subject matter. 
 
 3120 Duties of clerk. 
 
 3126. . . . When plaintiff may serve complaint with sum- 
 
 mons. 
 
 3127. . . . Jury trial; when and how demanded. 
 3128 Setting aside default, etc. 
 
 3129. . . . Costs upon recovery of one hundred dollars. 
 
 3130. . . . Costs when defendant recovers judgment. 
 
 3131. . . . Costs in action by working woman. 
 
 3132. . . . Costs upon adjournment. 
 
 3215.... Jurisdiction civil action Xew York city (old) 
 exclusively. 
 
 3216. . . . Removal of certain actions to city court. 
 
 3217. . . . When order of arrest may be granted. 
 
 3219. . . . Requisites of certain undertakings. 
 
 3220. . . . Docketing judgments; execution, etc. 
 3221.... Enforcement of certain judgments of working 
 
 woman. 
 3222 . . . . Costs in action bv working woman. 
 
 Notes to Code of Civil Procedure sections. 
 
 Sections 3121 to 3126, 3133 to 3215. and section 3218, Code of Civil 
 Procedure, omitted from the repeal schedule, have no application to 
 this court. 
 
 " The Section Code of Civil Procedure, Revision Section," as it is 
 called, will be found at the bottom of the second column next to the 
 last page. Upon tne top of the following and last page, second column, 
 it is erroneously headed " Consolidation Act section." 
 
 (This table to be eliminated from act, is included as an 
 explanation.) 
 
 TABLE SHOWING DISPOSITION OF LAWS 
 REPEALED. 
 
 Charter 
 section. 
 
 Section of 
 revision. 
 
 Consolidation 
 Act section. 
 
 Revision 
 section. 
 
 
 
 1284 
 
 1. 
 
 1361... 
 
 . 1. 
 
 1285 
 
 1. 
 
 1365. .,. 
 
 . 2. 
 
 1286 
 
 2. 
 
 1366... 
 
 . 3. 
 
 1287 
 
 3.
 
 Disposition of Laws Repealed. 
 
 475 
 
 Charter 
 section. 
 
 Section of 
 revision. 
 
 
 Consolidation Revision 
 Act section. sect.on. 
 
 1367... 
 
 . 310. 
 
 
 1288... 
 
 4 to 8, inclusive, 
 and revision 
 generally. 
 
 1368... 
 
 . 9. 
 
 
 1289... 
 
 . 25. 
 
 1369... 
 
 . 4 to 8, 
 
 inclusive, 
 
 1290. .. 
 
 . 29. 
 
 
 and under sub- 
 
 
 
 
 jects 
 
 stated in 
 
 
 
 
 section. 
 
 1291. .. 
 
 . 16. 
 
 
 
 
 1292. .. 
 
 . 12. 
 
 1370... 
 
 . 25. 
 
 
 1293... 
 
 . 17. 
 
 1371... 
 
 . 16. 
 
 
 1294... 
 
 . 40 and 293. 
 
 1372. . . 
 
 . 17. 
 
 
 1295. . . 
 
 . 41. 
 
 1374. .. 
 
 . 11. 
 
 
 1296. .. 
 
 . 26. 
 
 1375... 
 
 . 12. 
 
 
 1297... 
 
 . 27. 
 
 1376. .. 
 
 . 13. 
 
 
 1298. .. 
 
 . 37. 
 
 1377... 
 
 . 19. 
 
 
 1299. .. 
 
 Not necessary. 
 
 1379... 
 
 . 10. 
 
 
 1300. .. 
 
 . 31. 
 
 1380. .. 
 
 . 18. 
 
 
 1301... 
 1302... 
 
 . 36. 
 . 55. 
 
 1381, 13 
 
 82. Repe 
 
 a 1 e d by 
 
 
 
 
 charter amend- 
 
 
 
 
 atory 
 
 act 1901. 
 
 1303... 
 1304. .. 
 
 . 30. 
 . 56. 
 
 1384... 
 
 . 29. 
 
 
 1305 , 
 1306. .. 
 1307. .. 
 
 57. 
 
 Not necessary. 
 
 . 58. 
 
 1428. . . 
 
 . 293 to 
 
 304 inclu- 
 
 
 
 
 sive. 
 
 
 1308 . . . 
 
 . 59. 
 
 1429. . . 
 
 . 306. 
 
 
 1309. . . 
 
 . 60. 
 
 Consolidate 
 Act sect lot 
 
 >n Revision 
 section. 
 
 
 Consolidatk 
 Act section 
 
 n Revision 
 section. 
 
 1310. .. 
 
 . 61. 
 
 
 1366... 
 
 . 106. 
 
 1311. . . 
 
 . 62. 
 
 
 1337. .. 
 
 . 107. 
 
 1312. .. 
 
 . 63. 
 
 
 1338. . . 
 
 . 108, 109, 111. 
 
 1 3 1 
 
 . 64. 
 
 
 1339. .. 
 
 . 111. 
 
 1314... 
 
 . 65. 
 
 
 1340. 
 
 . 112. 
 
 1315. .. 
 
 . 66 and 67. 
 
 1341. .. 
 
 . 113, 114, 115.
 
 476 
 
 Disposition of Laws Repealed. 
 
 Consolidation Revision 
 
 Consolidation Revision 
 
 Act sectioz 
 
 i. section. 
 
 Act section 
 
 section. 
 
 1316. .. 
 
 . 73. 
 
 1342... 
 
 . 117. 
 
 1317. . . 
 
 . 74. 
 
 1343. .. 
 
 . 118, 119, 120, 
 123, 125, 126, 
 127, 128. 
 
 1318... 
 
 . 75 
 
 1344... 
 
 . 129. 
 
 1319. .. 
 
 . 76. 
 
 1345... 
 
 130. 
 
 1320... 
 
 . 77. 
 
 1346... 
 
 . 145. 
 
 1321... 
 
 ., 83. 
 
 1347... 
 
 146 to 176, in- 
 clusive. 
 
 1322... 
 
 . 84. 
 
 1348... 
 
 . 178. 
 
 1323... 
 
 . 85. 
 
 1349. .. 
 
 179. 
 
 1324... 
 
 . 86. 
 
 1350... 
 
 180. 
 
 1325. .. 
 
 . 87. 
 
 1351... 
 
 181. 
 
 1326. .. 
 
 . 88. 
 
 1352... 
 
 182. 
 
 1327... 
 
 . 89. 
 
 1353... 
 
 183. 
 
 1328... 
 
 . 90. 
 
 1354... 
 
 184. 
 
 1329... 
 
 . 91. 
 
 1355. .. 
 
 185. 
 
 1330... 
 
 . 137 to 140, inclu- 
 
 
 
 
 sive. 
 
 1356. .. 
 
 186. 
 
 1331... 
 
 . 95. 
 
 1357... 
 
 1, subdivision 9, 
 and under sub- 
 jects stated. 
 
 1332... 
 
 . 96, 97, 98. 
 
 1358... 
 
 1, subdivision 9, 
 and under sub- 
 jects stated. 
 
 1333. .. 
 
 . 101. 
 
 1359... 
 
 1, subdivision 9, 
 and under sub- 
 jects stated. 
 
 1334. .. 
 
 . 102, 103, 104. 
 
 1360. .. 
 
 1, subdivision 9, 
 and under sub- 
 jects stated. 
 
 1335... 
 
 . 105. 
 
 1361... 
 
 165. 
 
 1362... 
 
 . 193. 
 
 1390. .. 
 
 15. 
 
 1363... 
 
 . 66, 67, 193. 
 
 1391... 
 
 10. 
 
 1364... 
 
 . 194. 
 
 1392... 
 
 260 and 261. 
 
 1365... 
 
 . 195. 
 
 1393 
 
 251. 
 
 1366... 
 
 Not necessary, 
 
 
 
 
 covered by 248. 
 
 1394... 
 
 261.
 
 Disposition of Laws Repealed. 
 
 477 
 
 Consolidation 
 Act section. 
 
 1367 
 
 1368 
 
 1369.. 
 1370.. 
 1371. . 
 1372.. 
 1373.. 
 1374.. 
 1375.. 
 1376.. 
 
 1377. 
 
 1378, 
 1379. 
 1380, 
 1381. 
 
 1382, 
 
 1383, 
 
 1384, 
 
 1385, 
 
 1386, 
 
 1387, 
 
 1388 
 
 1389, 
 
 Revision 
 section. 
 
 253, 254, 255, 
 256. 
 
 205 to 226, inclu- 
 sive. 
 
 196. 
 
 233. 
 
 231-232. 
 
 234. 
 
 235. 
 
 236. 
 
 237. 
 
 Included in last 
 7 sections and 
 238. 
 
 238. 
 
 240. 
 
 239. 
 
 240. 
 
 248. 
 
 147 to 230. 
 
 230. 
 
 250. 
 
 251. 
 
 14. 
 
 4 to 8. 
 
 Not necessary. 
 
 Consolidation 
 Act section. 
 
 1395 
 
 1396, 
 
 1397. 
 1398. 
 1399. 
 1400. 
 1401. 
 1402. 
 1403 . 
 1404. 
 
 1405 . . . 
 1406... 
 1407... 
 1408 . . . 
 1409 . . . 
 
 1410... 
 
 1411... 
 
 1412. .. 
 
 1413... 
 
 1414... 
 
 1415 
 
 1416. . . 
 1417... 
 
 Revision 
 section. 
 
 264 to 268, in- 
 clusive. 
 
 264 to 268, in- 
 clusive. 
 
 269. 
 
 270. 
 
 271. 
 
 266. 
 
 272. 
 
 273. 
 
 262, 263, 273. 
 
 Not necessary, 
 except in sec- 
 tion 1, subdivi- 
 sion 7. 
 
 274. 
 
 275. 
 
 276. 
 
 277. 
 
 284 to 289, in- 
 clusive. 
 
 284 to 289, in- 
 clusive. 
 
 284 to 289, in- 
 clusive. 
 
 284 to 289, in- 
 clusive. 
 
 284 to 289, in- 
 clusive. 
 
 284 to 289, in- 
 clusive. 
 4 to 8, inclusive. 
 
 44. Title X. 
 
 Title X.
 
 478 
 
 Disposition of Laws Repealed. 
 
 Consolidation Revision 
 Act section. section. 
 
 Consolidation Revision 
 Act section. section. 
 
 1418... 
 
 Title X. 
 
 1707 300. 
 
 1419. .. 
 
 Title X. 
 
 1708 301. 
 
 L420. . . 
 
 Title X. 
 
 1709 302. 
 
 1421. .. 
 
 Title X. 
 
 1710 Title X. 
 
 1422... 
 
 Title X. 
 
 1711 304. 
 
 1423. . . 
 
 Title X. 
 
 Section Code 
 
 of C. P. . . Revision 
 section. 
 
 1424... 
 
 Title X. 
 
 
 1425... 
 
 Title X. 
 
 3116 to 3133, 
 
 inclusive . . (Brooklyn old 
 provisions.) 
 Under sub- 
 jects stated 
 in sections. 
 
 1426... 
 
 19. 
 
 
 1428... 
 
 282. 
 
 3215 to 3222, 
 
 inclusive . . Old X. Y. city 
 provisions 
 under sub- 
 jects stated 
 in sections. 
 
 1429... 
 
 . 283. 
 
 1436. .. 
 
 18. 
 
 1437... 
 
 353. 
 
 1438... 
 
 310 to 328. 
 
 1439. .. 
 
 Title X. 
 
 1440... 
 
 Not necessary, 
 
 1700... 
 
 294, 295, 296. 
 
 1701... 
 
 294, 295, 296 
 
 1702. . . 
 
 294, 295, 296. 
 
 1703. .. 
 
 297. 
 
 1704... 
 
 298. 
 
 1705... 
 
 299. 
 
 1706.... 
 
 306. 
 
 289.
 
 Disposition of Laws Repealed. 479 
 
 Notes to table showing disposition of laws repealed. 
 
 The statement at the head of this table that it is " to be eliminated 
 from this act, and is included as an explanation " is contained in the 
 original act filed in the office of the Secretary of State, and it has not 
 been eliminated from the act, but is a part of the act for the purpose 
 of explanation. 
 
 Charter § 1367, revision § 310, § 353 should be added. 
 § 1371, revision § 16, should be § 17. 
 § 1372, revision § 17, should be § 18. 
 § 1373, omitted from the table, is preserved as a Charter 
 
 enactment. 
 § 1375, revision § 12, should be § 13. 
 § 1376, revision § 13, should be § 14. 
 § 1377, revision § 19, should be § 20. 
 § 1378, omitted from the table, is preserved as a Charter 
 
 enactment. 
 § 1380, revision § 18, should be § 19. 
 § 1383, omitted from the table, is preserved as a Charter 
 
 enactment. 
 § 1384, revision § 29, should be § 27. 
 §§ 1385 to 1424, omitted from the table, have no application to 
 
 this court. 
 
 Consolidation Act. — The sections run along numerically from sec- 
 tion 1284 to section 1335. These are followed by section 1362 to section 
 1366, with a repetition of section 1366 on the top of the next, the second 
 column, which latter should be section 1336. The table then continues in 
 regular order until section 1361 is reached. Section 1362, which should 
 follow, is to be found five lines from the bottom of the first column, and 
 continues to section 1366; the continuation from this section — section 
 1367 — is to be found on the top of the next page, first column, and 
 follows the numerical order until section 1389 is reached, when section 
 1418, instead of section 1390, appears. Section 1390 is to be found in 
 the second column, fifth line from the bottom of the preceding page, 
 and runs along numerically to section 1394; the continuation from this 
 section — section 1295 — is to be found on the top of the next page, 
 second column; the table then continues in numerical order to section 
 1417, when section 1707 appears. Section 1418 is to be found in the 
 first column, six lines from the bottom of the same page and runs to 
 section 1423; the continuation, section 1424, is to be found on the top 
 of the next or last page of the act, first column, and continues numeri- 
 cally to section 1440, excepting sections 1427, 1430 to 1436, this is fol- 
 lowed by section 1700 to section 1706. Section 1707 is to be found on 
 the preceding page, second column, fifth line from the bottom of the
 
 480 Charteb Sections Preserved. 
 
 page, continuing numerically to section 1711, the end of the sections of 
 the Consolidation Act which have any application to this court. 
 Charter § 1387, revision § 14, should be § 15. 
 
 §§ 1424 to 1428. omitted from the table, were preserved as 
 
 Charter enactments. 
 §§ 1440 to 1700 have no application to this court. 
 
 CHAETER SECTIONS PRESERVED. 
 
 Section 1. The city of New York corporations consolidated; short 
 
 title of this act. 
 2. Division into boroughs. 
 
 1350. Courts, etc., abolished. 
 
 1351. Municipal court created. 
 
 1352. Justices. 
 
 1353. Qualifications, etc., of justices. 
 
 1354. Oath. 
 
 1355. Salary. 
 
 1356. Terms. 
 
 1357. Vacancies. 
 
 1358. Districts. 
 
 1359. Borough of The Bronx. 
 
 1360. Borough of Manhattan. 
 
 1361. Borough of Brooklyn. 
 
 1362. Borough of Queens. 
 
 1363. Borough of Richmond. 
 1373. Clerks and assistant clerks. 
 1378. Clerks to administer oaths. 
 1383. Removal. 
 
 1424. The marshals. 
 
 1425. Appointment of. 
 
 1426. Assignment of, by the mayor. 
 
 1427. Mayor to appoint.
 
 "Forms repay the close attention of counsel, as well as of attorney 
 and clerk. They are not merely weapons of contest, for whatever is 
 said, the form remains to show what ivas done." — Austin Abbott. 
 
 APPENDIX OF FORMS. 
 
 < Revised by Hon. George F. Roesch, one of the Justices of this Court 
 and Chairman of the Committee on Revision and on Forms and 
 Rules. ) 
 
 No. i. 
 
 Summons. 
 
 (Municipal Court Act, § 28.) 
 
 MUNICIPAL COURT OF THE CITY OF NEW YORK, BOROUGH OF 
 
 DISTRICT. 
 
 Plaintiff, j 
 against y Summons. 
 
 Defendant. 
 
 To the above-named defendant: 
 
 You are hereby summoned and required to appear in this action, in 
 the Municipal Court of the city of New York, borough of , 
 
 District, in the courtroom thereof, at , in the 
 
 city of New York,* on the day of , 190 , at 
 
 o'clock in the forenoon, to answer the complaint of the plaintiff in this 
 action, who, if you then fail to appear and answer, will take judgment 
 against you for the sum of dollars, with interest from the 
 
 day of , 190 , together with the costs of this action. 
 
 Dated , 190 . Clerk. 
 
 NOTES. 
 
 A copy, or an " ailia9 " summons is the same as above, except that it 
 has the word " copy," or " alias " before the word " summons," opposite 
 the title. 
 
 See also case of Ellinghausen v. Leask, 1 Abb. N. C. 299. 
 
 81 [481]
 
 482 AprE^mx of Fokms. 
 
 Where an order of arrest accompanies the summons, substitute at the* 
 the following: "Immediately after your arrest in this action."' 
 Municipal Court Act, § 58. 
 
 The summons in an action prosecuted by a " pauper," or poor person, 
 is the same as an ordinary summons, and is stamped " Free," or " Free 
 Alias." 
 
 This summons must be returned to the clerk the day before the return 
 day, and the calendar fee paid, to entitle it to be placed on the calendar. 
 Rule 4, Rules of Practice of this Court. 
 
 No. 2. 
 Marshal's Certificate of Service. 
 
 MUNICIPAL COURT OF THE CITY OF , BOROUGH OF 
 
 JUDICIAL DISTRICT. 
 
 City of , ss.: 
 
 On the day of , 190 , I served a copy of the within 
 
 summons and complaint in the borough of , in the city of 
 
 New York, on the within-named defendant , in person, at No. 
 street. 
 
 Dated , 190 . Marshal. 
 
 No. 3. 
 Affidavit of Service. 
 
 (See Rule 18, Supreme Court Rules, and also Rules of Practice of this 
 
 Court. ) 
 City of , ss.: 
 
 , being duly sworn, says that he is years of age; 
 
 that on the day of , at No. r 
 
 in said borough, in the city of New York, he served a copy of the within 
 summons and complaint on , the defendant therein named, 
 
 by delivering to and leaving with him personally a true copy thereof; 
 that he knew the person so served to be the person described in said 
 summons as defendant therein. 
 
 Sworn to before me, this ) 
 
 day of , 190 . j 
 
 [Signature.]
 
 Appendix of Forms. 483 
 
 No. 4- 
 Marshal's Return of Nonservice. 
 
 [Title of cause.] 
 
 [Venue.] ss.: 
 
 I hereby certify that the within summons and complaint was not 
 served, for the reason that, after diligent search, I could not find the 
 the defendant [or, if a corporation, "any officer of the defendant"] 
 upon whom I could serve the same [or other reason, as the case re* 
 quires]. 
 
 Dated , 190 . Marshal. 
 
 No. 5. 
 Petition, etc., for Leave to Prosecute as a Poor Person. 
 
 (See Rules of Practice of this Court; Code Civ. Proc, §§ 458-468; 
 Municipal Court Act, §§ 45-53.) 
 
 To the Municipal Court of the city of New York, Borough of , 
 
 Judicial District : 
 
 The undersigned respectfully represents that he resides at , 
 
 and has a good cause of action, arising on against 
 
 , who resides at , and that is not worth 
 
 the sum of one hundred dollars, exclusive of the wearing apparel and 
 furniture necessary for self and family, and the above subject- 
 
 matter which is not in possession of. Wherefore your peti- 
 
 tioner respectfully asks the court for leave to prosecute as a poor 
 person, and prays that an attorney and counsel be assigned to , 
 
 to conduct the action. 
 
 Dated , 190 . [Signature.} 
 
 [Venue.] ss.: 
 
 , of said city, being duly sworn, says, that the state- 
 ments contained in the above petition are true. 
 
 Sworn to before me, this 
 day of 
 
 [Signature] 
 
 this | 
 
 , 190 . \ 
 
 I hereby certify that I have examined the claim mentioned in the 
 foregoing petition, and upon such examination am of the opinion that 
 the petitioner has a good cause of action. 
 
 Dated , 190 . [Signature of attorney.]
 
 484 Appendix of Forms. 
 
 MUNICIPAL COURT OF THE CITY OF NEW YORK, BOROUGH OF 
 
 Upon the foregoing petition, affidavit, and certificate, Ordered, that 
 the petitioner be admitted to prosecute the above-described claim as a 
 poor person. 
 
 , Esquire, is hereby assigned as attorney and counsel in 
 the action. 
 
 Dated , 190 . Justice. 
 
 No. 6. 
 
 Affidavit by Employee against Employer for Services, Male or Female. 
 (Municipal Court Act, §§ 44, 348.) 
 
 MUNICIPAL COURT OF THE CITY OF NEW YORK, BOROUGH OF 
 []'cnuc.~\ ss.: 
 
 , being duly sworn, says that he resides at No. 
 street, in the city of New York in the borough of 
 , District, and has lately been in the employ of 
 
 , who transacts business or resides at in said 
 
 city and borough. That the sum of $ .,_ is now due from 
 
 such employer to this deponent for services performed by this deponent 
 while in such employment. That he has made demand upon the de- 
 fendant for payment, and that payment was refused. That deponent 
 has a good and meritorious cause of action against said employer to 
 recover said sum of money. [State whether any previous application 
 teas made, and, if so, its disposition.] 
 
 Sworn to before me, this 
 day of , 190 
 
 [Signature.] 
 
 Appointment of Guardian for Infants. 
 
 (Municipal Court Act, § 41.) 
 
 An infant cannot sue in his own name. Hulburt v. Newell, 4 How. 
 Pr. 93. Nor can his general guardian sue for him without a special 
 appointment. Hoyt v. Hilton, 2 Edw. Chy. Rep. 202; Buerman v. Buer- 
 man, 3 How. N. S. 393; S. C, 17 Abb. N. C. 391. He must first apply to 
 the judge of the court in which he would sue for the appointment of a 
 suitable person as' guardian to appear for him for the purpose of the 
 suit. This must be done before the commencement of the action ( Wilder 
 v. Emler, 12 Wend. 191); otherwise it will be irregular. Hill v. 
 Thacther, 3 How. Pr. 407. This application must be made by the infant, 
 if he is of the age of fourteen; if not, then by his general guardian, 
 or some relative or friend. Hahn v. Van Doren, 1 E. D. Smith, 411; 
 Anablc v. Anable, 24 How. Pr. 92.
 
 Appendix of Fokms. 485 
 
 No. 7. 
 
 Petition, Affidavit, and Order for Appointment of Guardian for an 
 Infant under the Age of Fourteen Years. 
 
 To the Municipal Court of the city of New York, Borough of , 
 
 District: 
 The petition of , of the borough of , respect- 
 
 fully shows: 
 
 I. That , of said borough, is an infant under the age of 
 fourteen years, and is now thirteen years of age. 
 
 II. That your petitioner is the stepfather of said , and 
 has the care and charge of said infant, and educates, supports, and main- 
 tains him as such stepfather [or set forth appropriate facts] . 
 
 III. That the said infant, , has good cause of action 
 against to recover the sum of dollars, for 
 wages due him by said , for work, labor, and services from 
 about the day of , to about the day of , 
 190 ; and that it is desirable that an action be commenced in this court 
 to recover said sum of dollars. [As to previous application, 
 see Form No. 6.] 
 
 Wherefore your petitioner prays that he may be appointed the guar- 
 dian of said infant, , for the purposes of said action. 
 Dated , 190 . [Signature.] 
 
 [Venue.] 88.: 
 
 , being duly sworn, deposes and says that he has read 
 the foregoing petition, which is true to his own knowledge, except as 
 to the matters which are therein stated to be alleged iipon information 
 and belief, and as to those matters he believes it to be true. 
 
 Sworn to before me, this 1 
 
 day of , 190 . \ 
 
 [Signature.] 
 
 No. 8. 
 Consent of Guardian. 
 
 I hereby eonrent to become the guardian ad litem of , and 
 
 to be responsible for costs if he fail in the action, for the purposes men- 
 tioned in the foregoing petition. 
 
 Dated , 190 . [Signature.]
 
 486 Appendix of Forms. 
 
 No. 9. 
 Order Thereon. 
 
 On reading and filing the petition of , and the affidavit 
 
 thereto annexed, each dated , 190 , it is ordered that 
 
 of the borough of , be appointed the guardian 
 
 ad litem of said , for the purpose of an action to be com- 
 
 menced in this court against one 
 
 Dated , 190 . [Signature of justice.} 
 
 Appointment of Guardian for Infant Defendant. 
 
 (Municipal Court Act, §§ 41, 42, 49.) 
 
 Where an infant is a defendant, it is essential that a guardian ad 
 litem should be appointed for him, after service of the process, and 
 before proceeding to join issue. (15 Abb. Pr. 12.) Judgment rendered 
 against an infant for want of an answer and without thp appointment 
 of a guardian ad litem, is irregular, and will be set aside on motion. 
 Kellogg v. Klock, 2 Code Rep. 28; Hockey v. Grey, 2 Johns. 192. 
 
 No. 10. 
 
 Petition by Infant Defendant over Fourteen Years of Age for the 
 Appointment of a Guardian Ad Litem. 
 
 To the Municipal Court of the city of New York, Borough of , 
 
 Judicial District: 
 The petition of , the defendant in this action, respect- 
 
 fully shows: 
 
 I. That an action has been commenced against your petitioner in this 
 court by [here state the object of the action]. 
 
 II. That your petitioner is an infant of the age of years, and 
 resides with his father at No. , street, in the borough 
 of , and that is his general guardian. 
 
 III. That six days have not elapsed since the service of the summons 
 on your petitioner [or] that no application for appointment of guar- 
 dian (id litem to appear in behalf of your petitioner in said action has 
 been made, to the best of your petitioner's knowledge and belief. 
 
 Wherefore your petitioner asks that may be appointed 
 
 his guardian ad litem, to appear and defend said action on his behalf. 
 
 [Signature.} 
 
 \ Verification, consent of proposed guardian, and proof of competency, 
 as in preceding forms.]
 
 Appendix of Forms. 487 
 
 No. ii. 
 Order of Appointing Guardian Ad Litem for Infant Defendant. 
 
 {Title of action.] 
 
 On reading and filing the annexed petition of , verified 
 
 the day of 190 , for the appointment of 
 
 as his guardian ad litem, and the consent of said , Ordered, 
 
 that said be and is hereby appointed guardian ad litem for 
 
 the petitioner , ana authorized and directed to appear and 
 
 defend on his behalf the action mentioned therein. 
 
 [Signature of justice.] 
 
 No. 12. 
 
 Petition by Relative or Friend of Infant Defendant under Fourteen 
 
 Years of Age. 
 
 To the Municipal Court of the city of New York, Borough of , 
 
 Judicial District: 
 The petition of respectfully shows: 
 
 I. That the above-entitled action has been commenced by service of 
 a summons upon , and that the object of said action is 
 [here state it concisely]. 
 
 II. That said is an infant under the age of fourteen years, 
 and resides with the petitioner, who is his father, and that he has no 
 general guardian [or otherwise state what guardianship he has]. 
 
 Wherefore your petitioner asks that a guardian ad litem be appointed 
 to appear and defend said action on behalf of said infant. 
 
 [Signature.] 
 [No previous application, etc., as in Form No. 6.] 
 [Verification, consent, and order, as in preceding forms.] 
 
 No. 13. 
 
 Application and Affidavit to Obtain an Order of Arrest. 
 
 (Municipal Court Act, § 57.) 
 
 To the Municipal Court of the city of New York, Borough of , 
 
 District : 
 
 The subscriber hereby applies on behalf of for an order 
 
 of arrest against the person of on the grounds set forth 
 
 in the affidavit hereunto annexed. 
 
 Dated the day , 190 . [Signature.]
 
 488 Appendix op Forms. 
 
 [Venue.'] ss.: 
 
 , being duly sworn, doth depose and say that he resides 
 at No. street, in the borough of , in the city 
 
 of 
 
 That , who resides at , is justly indebted 
 
 unto , who resides at , in the sum 
 
 of dollars, over and above all payments and set-offs. 
 
 [State facts.] 
 
 That said has a cause of action against said for: 
 
 That the provision of law under which the foregoing application for 
 an order of arrest is made, and which authorizes the issue of an order 
 of arrest as follows : 
 
 That the facts and circumstances which show the within 
 
 are as follows : [State as to no previous application as in Form No. 6.} 
 
 Sworn to before me, this J 
 
 day of , 190 . j 
 
 [Signature.] 
 
 No. 14. 
 Undertaking to Obtain Order of Arrest. 
 
 (Municipal Court Act, § 57.) 
 [Title of action.] 
 
 Whereas an application has been made or is to be made by 
 to the Municipal Court of the city of New York, Borough of , 
 
 District, for an order of arrest in favor of , 
 
 the above-named plaintiff, against the person of , the above- 
 
 named defendant. 
 
 Now therefore and in consideration of the granting of said applica- 
 tion and the issuing of said order of arrest, and of one dollar to us in 
 hand paid, we 
 
 do hereby, in pursuance of the statutes of the State of New York in 
 such case made and provided, jointly and severally undertake and agree 
 that if the defendant in the above-entitled action recover judg- 
 
 ment against the said plaintiff, that the said plaintiff will pay to said 
 defendant all costs and extra costs that may be awarded to said defend- 
 ant , and all damages which he may sustain by reason of the arrest 
 in said action not exceeding the sum of dollars [double the 
 
 amount claimed]. 
 
 In witness whereof, ha hereunto set hand the 
 
 day of , 190 . 
 
 Signed and delivered in the presence of [Signature.]
 
 Appendix of Foems. 489 
 
 [Venue.] ss.: 
 
 , being duly sworn, doth depose and say that he is one 
 of the sureties to the foregoing undertaking, that he resides at No. 
 
 street, in the borough of , in the city of 
 
 New York, and is a holder within this , 
 
 and is worth the sum of dollars [twice the amount speci- 
 
 fied in the undertaking] over all his debts and liabilities which he owes 
 or has incurred, and exclusive of property exempt by law from levy 
 and sale under an execution. 
 
 Sworn to before me, this ) 
 
 day of , 190 . j 
 
 [Signature.] 
 
 [Venue.] ss.: 
 
 , being duly sworn, doth depose and say that he is one 
 of the sureties to the foregoing undertaking, that he resides at No. 
 
 street, in the borough of , in the city of 
 
 New York, and is a holder within this , 
 
 and is worth the sum of dollars [twice the amount speci- 
 
 fied in the undertaking] over all his debts and liabilities which he owes 
 or has incurred, and exclusive c-f property exempt by law from levy 
 and sale under an execution. 
 
 Sworn to before me, this 
 
 day of , 190 
 
 • f 
 
 [Signature.] 
 
 [Venue.] ss.: 
 
 I certify that on this day of 190 , before me person- 
 
 ally came the within named , to me known, and 
 
 known to me to be the individuals described in, and who executed the 
 within undertaking, and severally acknowledged to me that 
 
 they executed the same. 
 
 Notary Public, Co. 
 
 I approve of the within undertaking as to form and the sufficiency 
 of the sureties therein named. 
 Dated , 190 . [Signature.] 
 
 No. 15. 
 
 Order of Arrest. 
 
 (Municipal Court Act, § 58.) 
 [Title of action.] 
 
 The People of the State of New York, to any Marshal of the city of 
 New York, greeting: 
 
 Whereas, it has been made to appear by affidavit of that 
 
 the above-named plaintiff has a good and sufficient cause of action
 
 490 Appendix of Forms. 
 
 against the above-named defendant, and that pursuant to the statutes 
 of the State of New York in such case made and provided, an order for 
 the arrest of the said defendant may issue by reason of and 
 
 that the undertaking required by law has been duly executed and 
 approved. 
 
 Now therefore you are hereby commanded to arrest the said defend- 
 ant, , if he c;«n be found in the city of New York, and forth- 
 with bring him before the Municipal Court of the city of New York, 
 borough of , District, at the courtroom of said court, 
 No. , in said borough. 
 
 You are further commanded to make return of this order to said 
 court with your proceedings thereunder as prescribed by law. 
 
 I direct that the summons accompanying this order be made return- 
 able immediately upon the arrest of the defendant. 
 
 The defendant may be let to bail in the sum of dollars. 
 
 Dated the day of , 190 . 
 
 Justice of said court. 
 Clerk. 
 [Venue.] ss.: 
 
 I hereby certify that on the day of , 190 , at 
 
 o'clock, in the noon, at No. street, in the borough of 
 
 , in the city of New York, I served upon the within- 
 named defendant, in person, the within order of arrest, the undertaking 
 and all the papers upon which said order of arrest was granted, and 
 at the same time and place I served on said defendant , in person, the 
 summons issued in the action and the complaint therein by delivering 
 to and leaving with him true copies of the same and showing him the 
 originals thereof; and that I know the person so served to be the de- 
 fendant in said action. 
 
 I further certify that at the time above mentioned, I arrested the said 
 defendant, , and took him forthwith before the justice who 
 
 issued the order and that upon making the arrest I immediately 
 
 gave notice thereof to plaintiff , to wit: at o'clock in the 
 
 noon, on the day of , 190 . 
 
 Dated , 190 . Marshal. 
 
 EXTRACTS FROM THE LAW GOVERNING ORDERS OF ARREST. 
 
 The marshal, upon arresting the defendant by virtue of an order of 
 arrest, must at the same time serve upon him the summons, and also a 
 copy of the order of arrest and of the papers upon which it was granted. 
 Municipal Court Act, § 59. 
 
 The marshal making the arrest must immediately give notice thereof 
 to the plaintiff, and indorse on the order of arrest and subscribe a cer- 
 tificate stating the time of serving the same, and of his giving notice to 
 the plaintiff. Municipal Court Act, § 61.
 
 Appendix of Forms. 491 
 
 No. 1 6. 
 Undertaking upon Arrest by Defendant. 
 
 ^Title of court and action.] 
 
 The above-named defendant, , having been arrested by 
 
 , one of the marshals of the city of New York, upon an 
 order of arrest granted by Hon. , justice of said court in a 
 
 •certain action therein, brought by the above-named plaintiff, against 
 the above-named defendant, now therefore we, of 
 
 and , do hereby jointly and severally undertake in the sum 
 
 of dollars [sum specified in the order of arrest] that said 
 
 ■defendant arrested as aforesaid, will attend in person at the opening 
 of said court on the next day thereafter when it is there in session, 
 then this obligation to be void, otherwise it remains in full force. 
 
 Dated, New York, , 190 . 
 
 [Signatures.} 
 
 NOTE. 
 
 Add justification (double amount), acknowledgment and approval; 
 ■one or more sureties will suffice. The officer taking the acknowledg- 
 ment, must, if the marshal so requires, examine under oath to a reason- 
 able extent the persons offering to become bail concerning their prop- 
 erty and their circumstances. Defendant may deposit with the marshal 
 the sum specified in the order of arrest. Municipal Court Act, §§ 62, 63. 
 
 No. 17. 
 Undertaking of Defendant on Adjournment when under Arrest. 
 
 (Code Civ. Proc, §§ 3218, 3180, and Municipal Court Act, § 67.) 
 [Title of action.] 
 
 Whereas, the above-named defendant has been arrested in this action, 
 and issue has been joined therein, and he has applied for an adjourn- 
 ment to the day of , 190 , which has been granted. 
 Now therefore we , of No. street, and of 
 No. street, in the borough of , in the city 
 of New York, do jointly and severally undertake and agree that the 
 said defendant shall appear on the said adjourned day, and not de- 
 part until duly discharged according to law, or until after the trial 
 and judgment in such action, and that he will surrender himself 
 into custody, if any execution be issued upon said judgment when 
 obtained against him in this action; and if he shall not so appear 
 and remain until after the trial and judgment, and surrender him- 
 self on said execution, the amount recovered in said judgment, to- 
 gether with all costs and extra costs that may be awarded therein. 
 
 Dated day of , 190 . 
 
 [Signatures.]
 
 402 Appendix of Forms. 
 
 [Venue.} ss.: 
 
 and of said borough, being duly sworn, say, 
 
 and each for himself says, that lie resides in the borough of , 
 
 in the city of New York, and that he is a holder therein, and 
 
 is wonth the sum of dollars, over and above all debts and 
 
 liabilities, and property by law exempt from execution. 
 
 Sworn to before me, this | 
 
 day of , 190 . j" 
 
 [Signature. - ] 
 [Venue.] ss.: 
 
 On this day of , 190 , before me personally appeared 
 
 and to me known to be the persons described in, 
 
 and who executed the foregoing undertaking, and who severally ac- 
 knowledged that they executed the same. 
 
 Notary Public, Co. 
 
 Approved as to form and sufficiency. 
 
 Justice. 
 
 NOTE. 
 
 This undertaking need not be given, if defendant has given bail or 
 made a deposit under Municipal Court Act, § 62. 
 
 No. 18. 
 
 Application, Affidavit, and Undertaking for Warrant of Attachment. 
 
 (Municipal Court Act, §§ 73-92.) 
 
 To the Municipal Court of the city of New York, Borough of f 
 
 District : 
 The subscriber applies for a warrant of attachment against the prop- 
 erty of on the ground set forth in the affidavit hereunto 
 annexed. 
 
 Dated the day of , 190 . 
 
 [Signature.] 
 [Venue.] ss.: 
 
 , being sworn, says that he resides at No. 
 street, in the borough of , in the city of 
 
 New York ; that is justly indebted unto 
 
 who resides at No. street, in said borough, in the sum 
 
 of over and above all counterclaims known to him, which 
 
 the said ha against which debt arose as 
 
 follows: [Here specify.] 
 
 [No previous application as in Form No. 6.] 
 
 Sworn to before me, this ) 
 
 day of , 190 . J [Signature.]
 
 Appendix or Forms. 493 
 
 UNDERTAKING. 
 
 Whereas, plaintiff, having applied to the Municipal Court of the city 
 of New York, borough of , Judicial District, for a 
 
 warrant of attachment against the property of , defendant, 
 
 and such court having ordered the warrant to issue on filing the under- 
 taking required by statute: Now, in consideration thereof, and one dol- 
 lar to us in hand paid, we and of the borough 
 of , in the city of New York, do jointly and severally 
 undertake and agree, that if the said defendant recover judgment 
 against the said plaintiff, or in case the warrant of attachment be 
 vacated, the plaintiff will pay to the said defendant all costs that may 
 be awarded to him and all damages he may sustain by reason of the 
 attachment, not exceeding the sum of dollars [tivice the 
 amount of the plaintiff's demand]. And that if the plaintiff recovers 
 judgment he will pay to the defendant all money received by him from 
 property taken by virtue of the warrant of attachment, or upon any 
 bond given therefor over and above the amount of the judgment and 
 interest thereupon. 
 
 In witness whereof, we have hereunto set our hands the day 
 
 of , 190 . 
 
 [Signature.] 
 [Venue.] ss.: 
 
 , being duly sworn, doth depose and say, that he is one 
 of the above-named sureties; that he resides at No. street, 
 
 in the borough of , in the city of New York, and is a 
 
 holder therein and worth dollars, as well over and above 
 
 all claims, undertakings, liabilities and indebtedness, as over and above 
 the property of deponent which by law is exempt from sale by execution. 
 
 Sworn to before me, this \ 
 
 day of , 190 . \ 
 
 [Signature.] 
 [Venue.] ss.: 
 
 , being duly sworn, doth depose and say, that he is one 
 of the above-named sureties; that he resides at No. street, 
 
 in the borough of , in the city of New York, and is a 
 
 holder therein and worth dollars, as well over and above 
 
 all claims, undertakings, liabilities and indebtedness, as over and above 
 the property of deponent which by law is exempt from sale by execution. 
 
 Sworn to before me, this ) 
 
 day of , 190 . j 
 
 [Signature.]
 
 494 Appendix of Forms. 
 
 [Venue.] ss.: 
 
 On the day of , 190 , before me personally came 
 
 , to me known, and known to me to be the individuals 
 described in and who executed the foregoing undertaking, and who 
 severally acknowledged that they executed the same. 
 
 Notary Public, Co. 
 
 I hereby approve of the within undertaking, as to form, and as to 
 the sufficiency of the sureties, and let a warrant of attachment issue. 
 Dated , 190 . Justice. 
 
 NOTE. 
 
 The undertaking must be in at least double the value of the property 
 and not less than two hundred dollars. Code Civ. Proc, §§ 2908, 3219, 
 and Municipal Court Act, § 76. 
 
 No. 19. 
 
 Warrant of Attachment. 
 
 (Municipal Court Act, § 75.) 
 
 [Venue.] ss.: 
 
 The People of the State of New York, to any Marshal of the city of 
 New York, greeting: 
 
 Whereas, has made an application to the Municipal 
 
 Court of the city of New York, borough of , Ju- 
 
 dicial District, for a warrant of attachment in favor against 
 
 the property of on the ground of , according to the 
 
 provisions of the Municipal Court Act of the city of New York, for a 
 debt of dollars and cents, being the amount sworn to by 
 
 the applicant; and the requisite proof by affidavit, and an undertaking 
 with sufficient surety having been made and executed: You are there- 
 fore required to attach on or before the day of , 190 , 
 and safely keep so much of the goods and chattels not by law exempt 
 from execution, of the said as will satisfy the plaintiff's 
 demand with the costs and expenses, in order to satisfy any judgment 
 that may be recovered on this warrant of attachment. And do you 
 make return of your proceedings hereon to the said court, at the court- 
 room, in said borough, on the day of , 190 , at 
 o'clock in the forenoon, and have you then and there this warrant. 
 
 Given under my hand at the place last 
 aforesaid, the day of ,190 
 
 Justice. 
 
 NOTE. 
 
 In executing this process the marshal will observe the requirements 
 of §§ 73-92 of the Municipal Court Act. 
 
 *}
 
 Appendix of Forms. 495 
 
 No. 20. 
 Defendants' Undertaking for Redelivery of Attached Property. 
 
 (Municipal Court Act, § 84.) 
 [Title of action.] 
 
 Whereas, the property of the above-named defendant has been at- 
 tached in this action by one of the marshals of the city of New York. 
 Now therefore , the said defendant as principal, and 
 
 as surety, do hereby jointly and severally undertake to the said plain- 
 tiff pursuant to the statute in such case made and provided in the sum 
 of dollars [twice the value of the property attached] that 
 
 if judgment is rendered against the defendant and an execution is 
 issued thereupon within six months after the giving of this undertak- 
 ing, the property attached shall be produced to satisfy the execution. 
 
 Dated , 190 . 
 
 In presence of 
 
 [Signature.'] 
 [Venue.] ss.: 
 
 , being duly sworn, doth depose and say that he is one 
 of the above-named sureties ; that he resides at No. street, 
 
 in the borough , in the city of New York, is a holder 
 
 therein, and is worth dollars, over all the debts and lia- 
 
 bilities which he owes or has incurred, and exclusive of property exempt 
 by law from levy and sale under an execution. 
 
 Sworn to before me, this ) 
 
 day of , 190 j" 
 
 [Signature.] 
 
 [Venue.] ss.: 
 
 , being duly sworn, doth depose and say that he is one 
 of the above-named sureties; that he resides at No. street, 
 
 in the borough , in the city of New York, is a holder 
 
 therein, and worth hundred dollars, over all the debts and 
 
 liabilities which he owes or has incurred, and exclusive of property 
 exempt by law from levy and sale under an execution. 
 
 Sworn to before me, this } 
 
 day of , 190 [ 
 
 [Signature.] 
 
 [Venue.] ss.: 
 
 I certify that on this day of , 190 , before me per- 
 
 sonally appeared and , known to me, and to me
 
 49G Appendix of Forms. 
 
 known to be the individuals described in, and who executed the within 
 bond, and who severally acknowledged that they executed the' same. 
 
 [Signature of notary public] 
 
 I hereby approve of the within undertaking, as to form and suffi- 
 ciency. 
 
 Dated , 190 . [Justice, or marshal.] 
 
 NOTE. 
 
 If more than one surety, the undertaking must be joint and several 
 in form. Code Civ. Proc, § 812. 
 
 Inventory of Property Attached. 
 By virtue of the within warrant of attachment I did, at the borough 
 of , in the city of New York, on the day of 
 
 , 190 , attach and take into my custody the following 
 goods and chattels of the within-named defendant, to wit: 
 That I made an inventory of the property so seized and attached, on 
 the day of , 190 . 
 
 Marshal. 
 
 No. 21. 
 
 Bond for Delivery of Attached Property to Third Person. 
 
 (Municipal Court Act, § 85.) 
 
 Know all men by these presents, that we, and , 
 
 are held and firmly bound unto in the sum of [double the 
 
 value of the property claimed], to be paid to the said 
 
 , for which payment well and truly to be made, we do 
 jointly and severally bind ourselves, our heirs, executors, and admin- 
 istrators, firmly by these presents. Sealed with our seals. 
 Dated the day of , 190 . 
 
 Whereas, certain goods and chattels, to wit [naming the attached 
 property claimed] : were on the day of , 190 , seized 
 
 by one of the marshals of the city of New York, by virtue of a warrant 
 of attachment issued by the Municipal Court of the city of New York, 
 borough of , District, in favor of the above-named 
 
 and against ; and whereas the above-bounden 
 
 claims the said goods and chattels as his property ; and 
 the same have not been reclaimed by the defendant, by virtue of the 
 provisions of the Municipal Court Act of the city of New York. 
 
 Now therefore the condition of this obligation is such that if, in an 
 action upon this bond, commenced within three months hereafter, the 
 said claimant will establish that he was the general owner of the prop- 
 erty claimed, at the time of the seizure ; or if he fails so to do, that he 
 will pay to the said the value thereof, with interest, then 
 
 this obligation to be void, otherwise to remain in full force and virtue. 
 
 [Signatures.] [r,. s.] 
 [l. s.]
 
 Appendix of Fokms. 497 
 
 Add acknowledgment, justification, and approval. The claimant must 
 execute the bond; one surety suffices. The marshal or justice may 
 approve in at least twice the value of the property claimed. Municipal 
 Court Act, § 85. 
 
 No. 22. 
 Marshal's Return of Proceedings on Warrant of Attachment Served 
 
 Personally. 
 [Venue.] ss.: 
 
 By virtue of the within warrant of attachment, I did, on the 
 day of , 190 , at , in the said borough, in the 
 
 city of New York, attach and take into my custody the following-de- 
 scribed goods and chattels of the defendant, and immediately made an 
 inventory thereof, of which I certify the annexed to be a correct copy; 
 and immediately thereafter I served the within summons, attachment, 
 and inventory personally on * by delivering to him person- 
 
 ally copies thereof. 
 
 [Date.] [Marshal's signature.] 
 
 Same, copies left at defendant's residence. 
 
 [To the * as above, then add] by leaving copies thereof, certified by 
 me to be such, at the said defendant's last place of residence at 
 
 , in the said borough, in the city of New York, with 
 [or, if his name is not known, " with a man, aged apparently 
 years," etc., describing him], a person of suitable age and discretion. 
 And I further certify that said defendant could not, with reasonable 
 diligence, be found within said county. 
 
 [Date.] [Marshal's signature.] 
 
 Same, by posting copies on door of residence. 
 
 [To the * as above, then add] by posting copies thereof, certified by 
 me to be such, on the outer door of the said last place of 
 
 residence at , in said borough, in the city of New York, 
 
 and also depositing like certified copies thereof in the general post 
 office inclosed in a sealed postpaid wrapper, directed to the 
 
 said at , that being his residence. And I 
 
 further certify that said defendant could not, with reasonable diligence, 
 be found within the said borough, and that a person of suitable age and 
 discretion could not be found at the defendant's said last place of resi- 
 dence therein. 
 
 [Date.] [Marshal's signature.] 
 
 32
 
 498 Appendix of Forms. 
 
 Same, where defendant has no residence in the boroughs. 
 
 [To the * as above, then add] by delivering copies thereof, certified 
 by me to be such, to , the person in whose possession the 
 
 property attached was found. And I further certify that said 
 
 could not, with reasonable diligence, be found within the said 
 boroughs, in the city of New York, and has no place of residence therein. 
 
 [Date.] [Marshals signature.] 
 
 NOTE. 
 
 If the marshal delivers the attached property to the defendant, upon 
 receipt of an undertaking, or to a third person upon receipt of a bond, 
 that fact should be stated in the return fully. 
 
 No. 23. 
 Order Vacating Warrant of Attachment. 
 
 [Title of action.] 
 
 The defendant having made application to this court, upon the return 
 of the summons issued in the above-entitled action, to vacate [or, 
 " modify," or " increase the plaintiff's security given upon "] the war- 
 rant of attachment herein, upon the papers upon which the said warrant 
 was granted (arid " upon the affidavits of ,") [omit the clause 
 
 in parentheses, if the defendant presents no proofs] ; 
 
 Now, upon hearing the respective parties [add, unless the motion was 
 heard upon plaintiff's papers only] " and upon reading and filing the 
 affidavits of " [here state the names of the persons making affidavits 
 and used by the plaintiff and defendant on the motion] ; 
 
 Ordered, that the said warrant of attachment be and the same is 
 hereby vacated [or " modified," stating how] ; or, ordered 
 
 that the plaintiff's security be increased to the sum of 
 dollars, and that upon failure of the plaintiff forthwith to so increase 
 his security, the said warrant of attachment be vacated. 
 
 [Date.] [Justice's signature.] 
 
 NOTE. 
 
 The court may, on its own motion, if it deems the papers, upon 
 which it was granted, insufficient to authorize it, vacate the warrant of 
 attachment. In such case, the court, in place of the first two sen- 
 tences, should state its reasons for so doing. Municipal Court Act, § 89.
 
 Appendix of Forms. 499 
 
 No. 24. 
 
 Execution against Property Taken by Attachment. 
 
 (Code Civ. Proc, § 2918, and Municipal Court Act, § 91.) 
 
 The People of the State of New York,, to any marshal of the city of 
 New York, greeting: 
 
 Whereas, judgment was rendered on the day of , 
 
 190 , by the Municipal Court of the city of New York, Borough of 
 , Judicial District, in an action in said court, be- 
 
 tween , plaintiff, and , defendant, in favor 
 
 of said plaintiff, , against the said defendant, 
 
 for the sum of dollars. 
 
 And whereas, the sum of dollars is now actually due 
 
 thereon ; 
 
 Therefore we command you, that you satisfy the said judgment by 
 collecting the amount due thereon, together with your fees out of the 
 personal property of the said defendant, attached by you by virtue of 
 the warrant of attachment issued in said action, and pay the same to- 
 the party entitled thereto; and return this execution within twenty 
 days after its receipt by you, to the said court, Borough of r 
 
 Judicial District, with a certificate thereon indorsed, stating the 
 manner in which you have executed the same. 
 
 Witness, Hon. , justice of said court, at the borough of 
 
 , the day of , 190 . 
 
 Clerk. 
 
 No. 25. 
 Affidavit in an Action to Recover a Chattel. 
 (Code Civ. Proc, § 1695, and Municipal Court Act, §§ 95-131.) 
 [Title of action.] 
 State of New York, Borough 
 of 
 
 , plaintiff in this action, being duly sworn, says that 
 , the owner of the following-described chattel, that is to- 
 say: 
 
 That the said chattel wrongfully detained from the plain- 
 
 tiff by , the defendant herein. 
 
 That the alleged cause of the detention thereof, according to the best 
 knowledge, information, and belief of deponent, is as follows: 
 
 That the said chattel ha not been taken by virtue of a warrant 
 against the plaintiff for the collection of a tax. assessment, or fine 
 issued in pursuance of a statute of this State or of the United States.
 
 500 Appendix of Forms. 
 
 That said chattel ha not been seized by virtue of an execution or 
 warrant of attachment against the property of the plaintiff or of any 
 person from or through whom the plaintiff has derived title to said 
 chattel since the seizure thereof. [No previous application as in Form 
 No. 6.] 
 
 That the actual value of said chattel is 
 
 Sworn to before me, this ) 
 
 day of , 190 . j" 
 
 [Signature.] 
 
 To any marshal of the city of New York, to ichom the summons in this 
 action is delivered, greeting: 
 You are hereby required to replevy the chattel described in the within 
 affidavit, on or before the day of , 190 . 
 
 [Justice.] 
 [Attorney for plaintiff.] 
 NOTE. 
 Where the affidavit is made by the attorney, and all the material facts 
 are not within his personal knowledge, substitute the following: 
 
 7. That all the above allegations [or, if portions thereof are made 
 upon information and belief, state what portions are so made] are made 
 upon information and belief; that the grounds of deponent's belief are 
 [here state such grounds]., and that the reason why this affidavit is not 
 made by the plaintiff is that he is not within the borough of deponent's 
 residence or " office," or " that he is not capable of making this affidavit 
 because [give reason]. 
 
 No. 26. 
 Complaint in Action to Recover a Chattel. 
 
 [Title of action.] 
 [Venue.] ss.: 
 
 The complaint of the above-named plaintiff respectfully shows to this 
 court, that the defendant ha become possessed of, and wrongfully de- 
 tains from the plaintiff, the following chattels of the plaintiff, that is 
 to say: of the value of , as he believes, and that 
 
 said chattels have been demanded by the plaintiff from the defendant 
 before the commencement of this action. 
 
 Wherefore the plaintiff demand that the defendant may be ad- 
 judged to deliver to the plaintiff the said goo'ls and chattels, and to 
 pay the plaintiff damages for the detention thereof, to the sum of 
 , and that the same may be forthwith delivered to the 
 plaintiff, 
 
 [Plaintiff's attorney.]
 
 Appendix of Forms. 501 
 
 [Venue.] ss.: 
 
 , plaintiff in this action, being duly sworn, says that 
 the foregoing complaint is true to his own knowledge, except as to the 
 matters which are therein stated to be alleged upon information and 
 belief, and as to those matters he believes it to be true. 
 
 Sworn to before me, this ) 
 
 day of , 190 . j 
 
 {Signature.] 
 
 NOTE. 
 
 As to form and requisites of complaint against marshal for refusing 
 to receive bond and deliver goods, see Kamena v. Wanner, 6 Abb. 193, 
 6 Duer, 698. 
 
 No. 27. 
 Plaintiff's Undertaking in an Action to Recover a Chattel. 
 (Code Civ. Proc, § 1699; Municipal Court Act, §§ 90, 99.) 
 
 [Title of action.] 
 
 Whereas, , the above-named plaintiff , has made an affi- 
 
 davit that the above-named defendant wrongfully detain certain chat- 
 tel in the said affidavit described of the value of , and the 
 said plaintiff claim the immediate delivery of said chattel pursuant 
 to the provisions of the statutes of the State of New York in such case 
 made and provided; 
 
 Now therefore, and in consideration of the taking of said property, 
 or any part thereof, by one of the marshals of the city of New 
 York, by virtue of the said affidavit and the requisition thereupon 
 indorsed, we, , of , of , of 
 
 , do, pursuant to said statute, hereby jointly and severally under- 
 take and become bound to the defendant in the sum of 
 for the prosecution of the action of the said plaintiff against the said 
 defendant in said court for wrongfully detaining said property, the 
 return to the defendant of the said chattel , or so much thereof as 
 shall be taken by virtue of the said affidavit and requisition thereupon 
 indorsed, if possession thereof is adjudged to him, or if the action 
 abates or is discontinued before the chattel returned to defend- 
 
 ant ; and for the payment to said defendant of any sum which the 
 judgment awards to him against the plaintiff . 
 
 In witness whereof, we have hereunto set our hands, the day of 
 
 , 190 . 
 
 Signed and delivered in presence of [Signatures.]
 
 502 Appendix of Fokms. 
 
 [Venue.] ss.: 
 
 , being duly sworn, doth depose and say, that he is 
 one of the sureties to the foregoing undertaking; that he is a resident 
 and holder within this State, and is worth the sum of 
 
 dollars [twice the amount specified in the undertaking] over all his 
 debts and liabilities hi owes or has incurred, and exclusive of property 
 exempt by law from levy and sale under an execution. 
 
 Sworn to before me, this ) 
 
 day of , 190 . j 
 
 [Signature.] 
 
 [Venue.] ss.: 
 
 , being duly sworn, doth depose and say, that he is 
 one of the sureties to the foregoing undertaking; that he is a resident 
 and holder within this State, and is worth the sum of 
 
 dollars [twice the amount specified in the undertaking] over all his 
 debts and liabilities which he owes or has incurred, and exclusive of 
 property exempt by law from levy and sale under an execution. 
 
 Sworn to before me, this ) 
 
 day of , 190 . J 
 
 [Signature.] 
 
 [ Venue. ] ss. : 
 
 I certify that on this day of , 190 , before me per- 
 
 sonally came the above-named , to me known, and known 
 
 to me to be the individuals described in and who executed the above 
 undertaking, and severally acknowledged to me that they executed the 
 
 same. 
 
 [Signature.] 
 
 I approve the within undertaking as to form and the sufficiency of 
 the sureties therein. 
 
 Dated , 190 . Justice. 
 
 NOTE. 
 The undertaking must be approved by the justice (Municipal Court 
 Act, § 99), and the undertaking must be executed by at least two sure- 
 ties, of which the plaintiff may be one, in a sum not less than twice the 
 value of the property claimed. Code Civ. Proc, §§ 1699, 2920, 811, 812.
 
 Appendix of Forms. 503 
 
 No. 28. 
 Marshal's Return in Proceedings to Replevy. 
 
 By virtue of the annexed affidavit and requisition thereon indorsed, I 
 did, on the day of , 190 , replevy the following prop- 
 
 erty, described in the said affidavit [describing the property as described 
 in the affidavit], which I found in the possession of the defendant [or, 
 " the defendant's agent "]. [Here state the fact and the mode of service 
 of the summons, affidavit, and requisition, as in attachment cases; also 
 state what disposition has been made of the chattels, pursuant to the 
 provisions of Municipal Court Act, §§ 102, 103, 104, 105.] 
 
 [Date.] [Marshal's signature.] 
 
 No. 29. 
 Notice by Defendant Excepting to Plaintiff's Sureties. 
 
 {Title of action.] 
 
 Take notice that , the above-named defendant, except to the 
 
 plaintiff's sureties in the undertaking given by him in this action. 
 
 [Date.] [Defendant's signature.] 
 
 To [plaintiff or marshal]. 
 
 NOTE. 
 
 The sureties must justify before the justice, on the return of the 
 summons. Municipal Court Act, §§ 106, 107. 
 
 No. 30. 
 Notice by Defendant to Reclaim Chattel. 
 
 [Title of action.] 
 
 Sir. — Take notice that require the return of the chattel 
 
 replevied in the above-entitled action. 
 
 [Date.] [Defendant's signature.] 
 
 To , Esq., Justice. 
 
 NOTE. 
 
 If the defendant demands the return of a part of the chattels re- 
 plevied, in a case prescribed in the last sentence of Code Civ. Proc, 
 § 2925, the notice should describe the chattel demanded as described in 
 the affidavit of the plaintiff.
 
 504 ArPENDix of Forms. 
 
 No. 31. 
 Affidavit Thereon. 
 [Title of action.] 
 [Venue.] ss.: 
 
 , being duly sworn, deposes and says: 
 1. That the above-named defendant is the owner of the chattel de- 
 scribed in the annexed notice. 
 
 or, 1. That the above-named defendant is lawfully entitled to the pos- 
 session of the chattel described in the annexed notice, by virtue of a 
 special property therein, to- wit: [Here set forth the facts with respect 
 to the special property.] 
 
 [Jurat.] [Defendant's signature.] 
 
 No. 32. 
 
 Undertaking Thereon. 
 
 (Code Civ. Proc, § 1104; Municipal Court Act, § 107.) 
 
 [Title of action.] 
 
 Whereas, the defendant in the above-entitled action demands the re- 
 turn of the chattel [or, " demands the return of the following chattels," 
 describing them] replevied by the above-named plaintiff, the value of 
 which, as stated in said plaintiff's affidavit, is [here state such value] : 
 
 Now therefore, we, the undersigned, for the procuring of such return, 
 and in consideration thereof, do jointly and severally undertake, and 
 become bound in the sum of not less than [twice the value above stated], 
 for the delivery of said chattel to the plaintiff, if delivery thereof is 
 adjudged ; or if the action abates in consequence of the defendant's 
 death and for the payment to the plaintiff of any sum which the judg- 
 ment awards against the defendant. 
 
 [Date.] [Signatures.] 
 
 [Add acknowledgment, justification, and approval by justice. Two 
 sureties are required; the defendant need not join. The sureties must 
 justify before the justice. Municipal Court Act, §§ 106, 109. 
 
 No. 33. 
 Examination of Plaintiff's or Defendant's Sureties. 
 
 [Title of action.] 
 
 On this day of , 190 , before the undersigned, a jus- 
 
 tice of the Municipal Court of the city of New York, borough of the 
 Judicial District, personally appeared and , 
 
 the sureties of the plaintiff [or " defendant "] in the annexed under-
 
 Appendix of Fokms. 505 
 
 taking, to justify pursuant to section 106 of the Municipal Court 
 Act, and the said surety, being duly sworn [here state 
 
 testimony taken], and the said , surety, being duly sworn, 
 
 says [etc., as above]. 
 
 [Signatures of sureties.] 
 Sworn to before me, the day ) 
 first above written. j 
 Justice. 
 
 No. 34. 
 Allowance Thereon. 
 
 This day appeared before me the within-named , and 
 
 , sureties to the within undertaking, and justified as upon 
 such an examination a<s required by law; and I find said sureties to be 
 sufficient, and allow the same. 
 
 [Date.] Justice. 
 
 [To be indorsed on the undertaking.] 
 
 No. 35. 
 
 Affidavit by Third Person for Delivery of Chattel to Him. 
 
 [Title of action.] 
 [Venue.] St.: 
 
 , being duly sworn, deposes and says that 
 was entitled, as against the defendant, to the possession of the chattel 
 [describing it] replevied in the above-entitled action, at the time the 
 same was so replevied, and now makes such claim; and that the facts 
 upon which such right depends are as follows: [Here state such facts.] 
 [No previous application, etc., as in Form No. 6.] 
 
 [Jurat.] [Signature.] 
 
 No. 36. 
 Marshal's Notice to Plaintiff of Third Person's Claim. 
 
 [Title of action.] 
 
 Take notice that claims the property replevied by me in 
 
 this action [or " claims the following property replevied by me in this 
 action "] ; that he has served upon me an affidavit, of which a copy is 
 herewith served upon you; and that I require indemnity against such 
 claim. [Marshal's signature.] 
 
 To [plaintiff's attorney, toho appears for him before the court.]
 
 506 Appendix of Forms. 
 
 No. 37. 
 
 Plaintiff's Undertaking to Indemnify Marshal against Such Claim. 
 
 (Code Civ. Proc, § 1711; Municipal Court Act, § 115.) 
 
 [ Title of action.] 
 
 Whereas, the following property [describing it] has been replevied 
 in this action, and is now held by , one of the marshals of 
 
 the city of New York, and one claims to have the 
 
 right to the possession thereof, and has delivered to the said marshal an 
 affidavit, as required by law; and whereas the said marshal has served 
 upon the said plaintiff a copy of the said affidavit, and a notice that he 
 requires indemnity against the said claim; 
 
 Xow therefore, we. the undersigned, do hereby jointly and severally 
 undertake pursuant to the statute, to the said , marshal, 
 
 that he Will indemnify him against any liability for damages, costs, or 
 expenses to be incurred in an action brought against him by the said 
 claimant, or any person deriving title from or through the claimant, by 
 reason of the taking or detention of the said chattel, or its delivery to 
 the plaintiff, not exceeding the sum of dollars. 
 
 [Date.] [Signatures.] 
 
 Add acknowledgment, justification, and approval by marshal. In the 
 justification the sureties must swear that they are freeholders or house- 
 holders in the city of New York. The undertaking must be executed by 
 two sureties ; the plaintiff need not join. If the marshal does not ap- 
 prove the undertaking and requires the sureties to be examined, such 
 examination must be before the court out of which the proceedings 
 issued. As to amount, see Municipal Court Act, § 115; also Code Civ. 
 Proc, § 1711. 
 
 No. 38. 
 
 Execution on a Judgment Awarding the Recovery of a Chattel. 
 
 (Municipal Court Act, § 124; Code Civ. Proc, § 1373.) 
 
 The People of the State of New York, to any marshal of the city of 
 New York, greeting: 
 
 Whereas, judgment was rendered on the day of , 
 
 190 , by the Municipal Court of the city of New York, borough of 
 
 , Judicial District, in an action in said court between 
 
 , plaintiff , and , defendant , 
 
 in favor of the said plaintiff , against the said defendant ,
 
 Appendix of Forms. 507 
 
 Therefore we command you that you deliver the possession of the 
 chattel above described to the said , he being the part to whom 
 
 the judgment awards the possession thereof, if the same can be found 
 within the city of New York; and in case a delivery of said chattel can- 
 not be had, you are required to satisfy the amount adjudged by said 
 judgment, as the value thereof, to-wit: the sum of dollars 
 
 and interest thereon, and also, in either case, to satisfy the moneys 
 awarded by said judgment as damages and costs, to-wit: the sum of 
 dollars and interest thereon, together with your fees, out 
 of the personal property of the said judgment debtor within the city of 
 New York, not exempt from levy and sale by virtue of an execution, and 
 to pay the same to the party entitled thereto, and return this execution 
 within twenty days after its receipt by you, to the said Municipal Court 
 of the city of New York, Borough of , Judicial District, 
 
 with a certificate thereon indorsed, stating the manner in which you 
 have executed the same. 
 
 Witness, Hon. , justice of said court, at the borough of 
 
 , the day of , 190 . 
 
 Clerk. 
 
 No. 39. 
 
 Notice of Motion to Set Aside Plaintiff's Proceedings on Ground of 
 
 Irregularity. 
 
 Sir. — Take notice that upon the [move on all papers served and on 
 pleading and proceedings], a motion will be made before [whatever 
 court and where and when], that the affidavit made by the plaintiff in 
 this action and the requisition to any marshal of the city of New 
 York, indorsed therein, and all proceedings taken by the plaintiff or by 
 the said marshal by virtue thereof, respectively, may be set aside as void 
 and irregular for that, etc. [specify irregularities complained of] ; and 
 that the property taken by the said marshal under the said affidavit and 
 requisition, respectively, may be restored by him to the said defendant, 
 and that the plaintiff may be ordered to pay the costs of this motion, 
 and [for usual prayer for relief]. 
 
 [If any affidavit be necessary to show irregularities extraneous to the 
 papers, serve copy with notice, and state as to previous applications as" 
 to Form No. 6.] 
 
 [If the proceeding be by an order to show cause, alter form accord- 
 ingly, and insert the words " service less than eight days sufficient."]
 
 508 Appendix or Forms. 
 
 No. 40. 
 Answer of Title to Real Property. 
 (Municipal Court Act, § 179.) 
 [Title of action.] 
 
 The defendant, for an answer to the plaintiff's complaint in this action, 
 denies each allegation of the complaint; and he alleges the following 
 facts, showing that the title to real property will come in question, 
 to-wit: that the land upon which the alleged trespass was committed, 
 is the land of the defendant [or othertvise, as the case may be]. 
 
 [Signature of defendant, his agent, or attorney.] 
 [Countersigned by justice.] 
 I hereby countersign the within answer, this day of , 
 
 190 . , Justice. 
 
 No. 41. 
 
 Undertaking Thereon. 
 
 (Municipal Court Act, § 116.) 
 [Title of action.] 
 
 Whereas, the defendant in the above-entitled action has [or " is about 
 to "] set forth in his answer facts, showing that the title to real prop- 
 erty will come in question in said action : 
 
 Now therefore, we, the undersigned, do jointly and severally under- 
 take, pursuant to the statute, that if the plaintiff, within twenty days 
 from the day of , 190 [day of putting in ansiver], 
 
 deposit with the justice a summons and complaint in a new action, for 
 the same cause, to be brought in the Supreme Court of New York, the 
 defendant will, within twenty days after the deposit, give a written 
 admission of the service thereof. [If the defendant teas arrested, add: 
 " and that the defendant will at all times render himself amenable to 
 any mandate, which may be issued to enforce a final judgment, in the 
 action so to be brought."] 
 
 [Date.] [Signatures.] 
 
 [Add acknowledgment, justification, and approval by justice. One 
 surety suffices; defendant need not join.]
 
 Appendix of Forms. 509 
 
 No. 42. 
 Notice of Motion. 
 
 (With or without stay of proceedings.) 
 [Title of action.] 
 
 Sir. — Take notice that upon the [describe the papers on which the 
 motion is made], a motion will be made before [whatever court, and 
 where and when], for an order [here state nature of order or relief 
 applied for]. 
 
 If for ivregularities, state in full the irregularities complained of. 
 See Supreme Court Rules. 
 
 [If stay of proceedings is desired, then add] And in the meantime, 
 and until the hearing and decision of this motion [or until the further 
 order of this court], let all proceedings of the plaintiff [or the defend- 
 ant], his attorneys, agents, or servants, and any marshal of the city of 
 New York, be stayed. 
 
 Dated, etc. [Signature of attorney.] 
 
 [Justice's signature, if on order to show cause.] 
 
 NOTE. 
 
 In drawing order made by the justice [whether relief demanded is 
 made or denied], make it correspond precisely with the relief demanded, 
 or vice versa. If the proceedings be by an order to show cause, alter 
 accordingly, and state as to previous application as to Form No. 6. 
 
 No. 43. 
 Order to Show Cause. 
 
 [Title of action.] 
 
 On the affidavit of , verified on the day of , 
 
 190 , which is hereto annexed, and on all the papers and proceedings 
 in the above-entitled action, it is hereby ordered, that the plaintiff 
 show cause before the Municipal Court of the city of New 
 York, borough of , Judicial District, at the 
 
 courtroom thereof, No. ., in said borough of the city 
 
 of New York, on , the day of , 190 , at 
 
 o'clock in the forenoon, or as soon thereafter, as counsel can be 
 heard, why the judgment heretofore rendered in said action by default, 
 on the day of , 190 , and fully described and set forth 
 
 in said affidavit, should not be opened, vacated, and set aside, and said 
 defendant allowed to come in and defend said action, and why said de- 
 fendant should not have such other and further relief as to the court 
 may seem meet and just and until further order or determination herein, 
 let all proceedings on the part of the plaintiff or any marshal of the
 
 510 Appendix of Forms. 
 
 city of New York, upon said judgment, or toward the collection or en- 
 forcement thereof, be and the same are hereby stayed. 
 
 And, it appearing that there is a suflicient reason for requiring a 
 shorter notice than eight days, service of this order may be made on or 
 before the day of , 190 . 
 
 Dated , 190 . Justice. 
 
 No. 44. 
 Affidavit to Obtain Adjournment of Trial. 
 
 (See § 193, Municipal Court Act.) 
 [Title of action.] 
 [Venue.] ss.: 
 
 , being duly sworn, deposes and says, that he is the 
 in this action; that issue was joined herein on the day of 
 
 , 190 ; that deponent has fully and fairly stated the case herein 
 to , his counsel, who resides , in the borough of 
 
 , in the city of New York ; and that deponent has a good and 
 substantial defense to said action, on the merits, as he is advised by said 
 counsel, after such statement, and verily believes to be true ; that he 
 has stated to his counsel what he expects and believes he will be able 
 to prove on the trial hereof by , who is a material and 
 
 necessary witness for deponent thereon, and that without the testimony 
 of said , deponent cannot safely proceed to trial, as he, 
 
 deponent, is advised by his said counsel, and verily believes. That this 
 action is brought to recover [here state the nature of the action and 
 defense, and show the materiality of the evidence]. 
 
 That deponent has made diligent efforts to find said witness, and 
 could not. That on the day of , 190 , deponent pro- 
 
 cured a subpoena for him, for the purpose of procuring the attendance 
 of said witness at this court this day, and that said subpoena was not 
 served, for the reason that after a vigilant search and inquiry for said 
 witness at his residence and place of business it was ascertained that 
 he had left the borough of , in said city, expecting to return 
 
 on the day of , 190 , at which time, and not sooner, 
 
 deponent believes he will be able to procure his attendance as such wit- 
 ness herein. 
 
 Sworn to, etc. , [Signature.] 
 
 NOTE. 
 
 [This affidavit should be varied according to circumstances, and the 
 nature and materiality of the evidence sometimes should appear, so- 
 that the justice may determine whether the witness is really material 
 or not, and to enable the other side to say whether they will admit 
 what is expected to be proved by the absent witness, and in that way 
 render the adjournment unnecessary.]
 
 Appendix of Forms. 511 
 
 No. 45. 
 Undertaking on Long Adjournment. 
 
 (Municipal Court Act, § 194.) 
 [Title of action.] 
 Whereas, issue has been joined in this action, and the above-named 
 has applied for an adjournment under section 194 of the 
 Municipal Court Act (Laws 1902, chap. 580). Now, we, , of 
 
 street, and , of street, of the bor- 
 
 ough of , in the city of New York, do undertake and agree 
 
 that we will pay to the in this action the damages, costs, 
 
 and extra costs, in case judgment shall be rendered against the said 
 in this action. 
 Dated the day of , 190 . 
 
 [Signature.] 
 [Affidavits and acknowledgments as before.] 
 
 COMMISSIONS. 
 
 [Commissions issued in this court in forms similar to those issuing 
 out of courts of record. Blanks for the same, icith directions for their 
 return, and instructions to the commissioners, may be procured at the 
 stationers'. They are too lengthy for insertion here.] 
 
 No. 46. 
 Subpoena to Testify. 
 (Municipal Court Act, § 196.) 
 The People of the State of New York, to , greeting: 
 
 We command you, that all business and excuses being laid aside, you 
 and each of you appear and attend before the Municipal Court of the 
 city of New York, borough of , Judicial District, 
 
 at the courtroom of said court, in the borough of 
 
 , in said city, on the day of , 190 , at 
 
 o'clock in the forenoon, to testify and give evidence in a certain action 
 now pending in said court, then and there to be tried between 
 plaintiff , and defendant , and for a failure to attend you 
 
 will be deemed guilty of a contempt of court, and liable to pay all 
 loss and damages sustained thereby to the party aggrieved, and forfeit 
 fifty dollars in addition thereto. 
 
 Witness, , Esq., a justice of our said Court, 
 
 at the borough of , in the city of New York, the 
 
 day of , in the year one thousand nine hundred and 
 
 Clerk.
 
 512 Appendix of Forms. 
 
 No. 47- 
 Subpoena Duces Tecum. 
 (See Municipal Court Act, § 196.) 
 
 The People of the State of ~New York, to , greeting: 
 
 We command you, that all business and excuses being laid aside, you 
 appear and attend before the Municipal Court of the city of New York, 
 borough of , Judicial District r at the courtroom 
 
 of said court, at No. street, in the borough of , 
 
 in said city, on the day of , 190 , at o'clock 
 
 in the noon, to testify and give evidence in a certain action now 
 
 pending undetermined in the said court, between defendant 
 
 on the part of , and bring with you and produce at the 
 
 time and place aforesaid a certain now in your custody, 
 
 and all other deeds, evidences, and writings which you have in your 
 custody or power concerning the premises. And for a failure to attend 
 you will be deemed guilty of a contempt of court, and liable to pay all 
 loss and damages sustained thereby to the party aggrieved, and forfeit 
 fifty dollars in addition thereto. 
 
 Witness, , Esq., justice of our Court at the 
 
 borough of , in the city of New York, the day of 
 
 , 190 . 
 
 Clerk. 
 
 NOTE. 
 
 A subpoena duces tecum must be served at least five days before the 
 trial, otherwise the party who needs a book or paper must procure an 
 order from the justice, requiring the production thereof, by the person 
 having it in custody. See Code Civ. Proc, § 867. The foregoing form 
 of subpoena will answer for the order, omitting the direction, " The 
 People," etc. See also Municipal Court Act, § 196. 
 
 No. 48. 
 Marshal's Return Thereon. 
 
 I hereby certify that I * served the within [or " annexed "] subpoena 
 on , at , on the day of , 190 , 
 
 by reading the same [or stating its contents] to him personally, and 
 by paying [or tendering] to him the sum of , his lawful fee for 
 
 one day's attendance as a witness. 
 
 [Date.] [Marshal's signature.]
 
 Appendix of Forms. 513 
 
 No. 49. 
 Affidavit for Warrant of Attachment against Witness. 
 
 [Title of action.] 
 [Venue.] ss.: 
 
 If a private person servSd the subpoena, his affidavit of service is 
 necessary ; if a marshal served it, his return is evidence thereof. Where 
 o. private person served the subpoena,, the affidavit should be as follows: 
 , being duly sworn, deposes and says that he [insert as 
 above from the*]. In either case, if a warrant of attachment is de- 
 sired, the party or his attorney, etc., in his behalf, must make an af- 
 fidavit as follows: Being duly sworn [or "and deponent further"] 
 says that the testimony of the said is material to the said 
 
 plaintiff [or " defendant "] upon the trial of this action, and that the 
 said has neglected [or "refused"] to attend as a witness 
 
 in obedience to such subpoena; and that deponent knows of no just 
 cause for such neglect or refusal. 
 
 [Jurat.] [Signature.] 
 
 NOTE. 
 
 If a witness, upon whom a subpcena- duces tecum has been served, at- 
 tends, but fails to produce the book or paper, he eannot be attached 
 under Code Civ. Proc, §§ 2971-2973; but he may be summarily com- 
 mitted, under section 3001, until he produces the book or paper. Affida- 
 vit must show payment of legal fees, or tender thereof. 
 
 No. 50. 
 
 Attachment — Defaulting Witness. 
 
 (Municipal Court Act, § 198.) 
 
 The People of the State of Neio York, to any marshal of the city of 
 ~New York, greeting: 
 
 Whereas, it has been made to appear to the Municipal Court 
 of the city of New York, borough of , Judicial 
 
 District, that there had been issued out of said court, in an action 
 then pending therein in which is plaintiff and , 
 
 defendant, a subpoena directed to and commanding him to 
 
 appear before the said court at a time now past, and give testimony 
 on the trial of said action. 
 
 And, whereas, due proof of the service thereof upon said 
 has been presented to said court; and the said after having 
 
 been duly called in open court, at the time and place whereby he was 
 so directed to appear has made default in such appearance and has 
 wholly neglected and refused to obey the mandate of said court. 
 
 33
 
 514 Appendix of Forms. 
 
 These are therefore, to require you, and you and each of you are 
 hereby required, to forthwith attach and take into your custody the 
 body of said and him keep and retain in safe and secure 
 
 custody until the day of , 190 , at the hour of 
 
 it., at which time you are further required to bring and produce hirn 
 before our said court at the courtroom thereof, at No. 
 street, in the borough of , in the city of New York, to 
 
 be then and there dealt with, for the cause aforesaid, as the justice 
 thereof may direct, unless he shall give good and sufficient surety in 
 the sum of dollars, for his appearance at such time and 
 
 place, and for your doings herein this shall be your warrant, and have 
 you then and there this writ. 
 
 Witness, , a justice of the Municipal Court of the city of 
 
 New York, borough of , Judicial District, in said 
 
 city, this day of , 190 . 
 
 By order of the court, 
 
 Clerk. 
 
 Allowed. Justice. 
 
 Order Thereon. 
 
 (See Municipal Court Act, § 5.) 
 
 The foregoing named being now present, and being by me 
 
 informed of the aforesaid charge against him, and being by me requested 
 to show good cause or sufficient excuse if any he may have why he 
 should not be punished as for a contempt in not obeying the mandate 
 of this court, as in the warrant of attachment hereinbefore recited and 
 fully set forth, and failing to show any such good cause, or reasonable 
 or sufficient excuse, is adjudged guilty of a willful disobedience of the 
 mandate of this court, and of a contempt of court, and is hereby directed 
 as a punishment therefor to pay a fine of dollars, and to be 
 
 imprisoned in the common jail of the city of New York in the borough 
 of , for the term of days, and until such fine 
 
 be paid, or he be discharged according to law, but if such fine be not 
 paid, such imprisonment shall not exceed thirty days, and that a com- 
 mitment issue to that effect. 
 
 Dated, 190 . Justice. 
 
 Certificate of Marshal. 
 
 I, one of the marshals of the city of New York, hereby 
 
 make return to the within warrant of attachment, that I have arrested 
 the said , and now produce him and have admitted hini 
 
 to bail as required by said writ. 
 
 Dated, 190 . Marshal.
 
 Appendix of Forms. 515 
 
 No. 51. 
 
 Minute of Conviction Thereon. 
 
 [Venue.] ss.: 
 
 On the day of , 190 , a defaulting witness, having 
 
 been arrested and brought before the Municipal Court of the city of 
 New York, borough of , Judicial District, by 
 
 virtue of a warrant issued as prescribed in the Municipal Court Act 
 of the city of New York, was convicted before me and fined the sum of 
 
 , besides costs, for nonattendance as a witness to give 
 evidence [or "for refusal to testify as a witness"] before me at the 
 Municipal Court of the city of New York, borough of , 
 
 Judicial District, on the day of , 190 , 
 
 held at No. street in said city, in pursuance of a subpcena 
 
 duly issued and served upon him in behalf of the plaintiff [or " defend- 
 ant"], in an action then and there depending before me, in which 
 
 was plaintiff, and was defendant. 
 
 Jilstice. 
 
 No. 52. 
 Execution to Collect Fine. 
 
 [Venue.] ss.: 
 
 The People of the State of New York, to any marshal of the city of 
 Neto York, greeting: 
 
 Whereas, [insert from the * in No. 53 to the end of the form; then 
 add], a minute of which conviction, the cause thereof, and the fine and 
 costs imposed, have been entered in the docket-book of said justice; 
 and whereas the has neglected to pay said fine and costs 
 
 [or, " and whereas the sum of , part of the said fine and 
 
 costs, remains unpaid to the said justice'], you are therefore hereby 
 commanded to collect the said sum remaining unpaid of the goods and 
 chattels of the said within the city of New York ; and. for 
 
 want thereof, to take him and convey him to the common jail of the city 
 of New York in the borough of , there to remain until he 
 
 pays such sum, not exceeding thirty days; and forthwith to bring the 
 money collected before the said justice, and do you return this execu- 
 tion within days after the date hereof. 
 
 Witness my hand this day of , 190 , at , 
 
 in said city. 
 
 Justice.
 
 516 Appendix of Forms. 
 
 No. 53. 
 
 Venire. 
 
 (Municipal Court Act, § 231.) 
 
 The People of the State of New York, to any marshal of the city of 
 Neio York, greeting: 
 
 We command you to summon — [24 persons.] 
 
 NAMES. ) RESIDENCES. 
 
 good and lawful men of the borough of , in the city of New 
 
 York, qualified to serve as jurors in courts of record, who are in nowise 
 of kin to , the plaintiff, nor to , the defendant, be- 
 
 tween whom a controversy exists, to be and appear before the Municipal 
 Court of the city of New York, Borough of , Judicial 
 
 District, at the courtroom, No. street, in said borough 
 
 in said city on the day of instant, at 
 
 o'clock in the of that day, between the said parties, and 
 
 have you then and there the names of the jurors and this precept. 
 Given under my hand, the day of , 190 . 
 
 Clerk. 
 
 No. 54. 
 Marshal's Return of Service Thereof. 
 
 I do hereby certify, that by virtue of the within [or " annexed "] 
 venire, I have personally notified the following persons to attend as 
 therein prescribed, as jurors to try the said action. [Names and resi- 
 dences.'] 
 
 [Date.] Marshal. 
 
 No. 55. 
 Warrant of Commitment of Witness Attending and Refusing to be 
 
 Sworn, etc. 
 
 (Municipal Court Act, § 4.) 
 
 [Venue.] ss.: 
 
 The People of the State of New York, to any marshal of the city of 
 New York: 
 
 Whereas, on the trial of a civil action before the Municipal Court 
 
 of the city of New York, Borough of , Judicial District, 
 
 the undersigned, justice, this day, in which was plaintiff, and 
 
 was defendant, , a witness, attending in behalf of 
 
 said plaintiff before me in said action, refused to be sworn or affirmed in
 
 Appendix of Foems. 517 
 
 the form prescribed by law [or " refused to answer the following per- 
 tinent and proper question,*' stating the question in full; or "neglected 
 or refused to produce a book known as," describing it; or "a paper 
 called," etc., describing it, " which lie had been duly subpoenaed to pro- 
 duce," or " which he had been duly required to produce by an order duly 
 made; "] and whereas, the said plaintiff made oath before me that the 
 testimony of the said witness [or " that the said book " or " paper "] was 
 so far material to his case, that without it he could not safely proceed 
 with the trial of the said action; whereas, by the return of , 
 
 marshal of said borough [or the affidavit of ], it appeared 
 
 that the subpoena [or " order "] aforesaid was duly served upon the 
 said as required by law. 
 
 Now, therefore, you, the said marshal, are hereby commanded forth- 
 with to convey and deliver the said into the custody of the 
 said sheriff of said at the common jail of the city of New 
 York in the borough of , in said city, and you the said sheriff 
 are hereby commanded to receive the said into your custody in 
 the said jail, and him there closely confine by virtue of this warrant, 
 until he submits to be sworn or affirmed, as such witness as aforesaid 
 [or "to answer the said question" or "produce the said book" or 
 " paper "] or is otherwise discharged according to law. 
 
 [Date.] Justice. 
 
 [Seal of court.] Clerk. 
 
 No. 56. 
 Affidavit that Justice is a Material Witness. 
 
 (Municipal Court Act, § 13.) 
 [Title of action.] 
 [Venue.] ss.: 
 
 being duly sworn, deposes and says : 
 
 1. That he is the defendant in the above entitled action [or " special 
 proceeding "]. 
 
 or 1. That he is the attorney for the defendant in the above entitled 
 action [or " special proceeding"], and that said defendant has not been 
 arrested therein. 
 
 2. That an issue of fact has not been joined in said action [or " special 
 proceeding "]. 
 
 3. That the said justice before whom the said action [or " special 
 proceeding "] is pending is a material witness for tbe defendant, with- 
 out whose testimony he cannot safely proceed to trial ; that he expects 
 to prove by said justice the following facts and circumstances [stat- 
 ing them particularly] ; and that deponent is unable to prove the said 
 facts and circumstances without the testimony of the said justice. 
 
 [Jurat.] [Signature.]
 
 518 Appendix of Fokms. 
 
 No. 57. 
 
 Order Thereon. 
 [Title of action.] 
 
 Whereas, before the joinder of issue in the above entitled action [or 
 "special proceeding"], satisfactory proof was presented in behalf of 
 the defendant to me, the undersigned justice, before whom the jaid 
 action [or " special proceeding"] is pending, by the affidavit of the said 
 defendant [or otherwise as the case may be], that I am a material wit- 
 ness for the said defendant, without whose testimony he cannot safely 
 proceed to trial. 
 
 Ordered, that the said action [or " special proceeding "] be continued 
 before the Municipal Court of the city of New York, borough of 
 , Judicial District. 
 
 [Date.} Justice. 
 
 No. 58. 
 
 Notice to Juror. 
 
 (Municipal Court Act, § 235.) 
 To Mr. 
 
 Sir. — You are hereby summoned to attend as a juror, before 
 
 The Municipal Court of the city of New York, borough 
 of , District, at the courthouse, No. , in the 
 
 borough of , in said city, on the day of , 
 
 at o'clock in the noon. 
 
 [Fine for nonat tendance, twenty-five dollars.] 
 
 Dated this day of , 190 . 
 
 By order of the court. Clerk. 
 
 No. 59. 
 Undertaking to Indemnify against Lost Bill or Note. 
 
 (See Code Civ. Proc, § 1917.) 
 [Title of action.] 
 
 Whereas, this action is founded upon a promissory note, made by 
 , the defendant, to , or bearer, for 
 
 dollars, dated about the day of , 190 , which note the 
 
 said alleges was lost while it belonged to him; now, there- 
 
 fore, we do jointly and severally undertake, pursuant to the statute, 
 to the said in the sum of dollars, that the said 
 
 will indemnify the said , his heirs and per-
 
 Appendix of Fokms. 519 
 
 sonal representatives, against any claim, by any other person, on ac- 
 count of such note, and against all costs and expenses, by reason of 
 such a claim. 
 
 [Date.] [Signatures.] 
 
 [Add acknowledgment, justification, and approval. Plaintiff need 
 not execute the undertaking j but there must be at least tivo sureties. 
 The amount to be inserted in the blank must be fixed by the justice, at 
 not less than twice the amount of the note.] See Desmond v. Bice, 
 2 Hilt. 530. 
 
 No. 6o. 
 
 Examination of Sureties. 
 [Title of action.] 
 [Venue.] ss.: 
 
 , being duly sworn, doth depose and say, that he is the 
 person offered for acceptance as surety in the foregoing entitled action. 
 That he resides at No. street, in the borough of , 
 
 in the city of New York, and is a holder therein and worth 
 
 hundred dollars, as well over and above 
 
 all claims, undertakings, liabilities, and indebtedness as over and above 
 any property of deponent which by law is exempt from levy and sale 
 on execution. That among other property owned by deponent in his 
 own right, and upon which there are no claims or incumbrances except 
 those, if any, mentioned herein, is the following, viz. : 
 
 That the personal and firm debts of deponent, including notes not due, 
 do not exceed the sum of dollars. That there are no judg- 
 
 ments against deponent for any sum of money, nor is there any suit 
 now pending against deponent for any cause of action, except 
 
 That deponent is not surety or principal, upon any bond, undertaking 
 or other obligation for the payment of any sum of money, performance 
 of any act, duty, or contract, either for himself or another person, 
 except 
 
 That deponent does not know of any reason, nor has he concealed any 
 fact which if known would be a good reason, why he should not be ac- 
 cepted as one of the sureties aforesaid. 
 
 Sworn to before me this ) 
 
 day of , 190 . \ 
 
 [Signature.]
 
 520 
 
 Appendix of Forms. 
 
 No. 61. 
 
 Transcript of Judgment. 
 
 (Municipal Court Act, § 261.) 
 
 Time of Docketing. 
 
 Names of Parties against whom 
 Judgments have been Obtained. 
 
 Names of Parties in whose Favor 
 Judgments have been Obtained. 
 
 Amount of Judgment. 
 
 Officer's Return on Execution. 
 
 Judgments when Satisfied. 
 
 Judgment,. . . .$ 
 Costs $ 
 
 
 
 $ 
 
 
 Plaintiff's Attorney. 
 
 I certify, that the foregoing contains all the facts necessary to make 
 a perfect docket of the judgment rendered in the Municipal Court of the 
 city of New York, borough of , Judicial District, in 
 
 the above action. 
 
 Dated, 190 . Clerk. 
 
 NOTE. 
 
 If required, add, in addition to the within, I further certify that the 
 words " Not Summoned " are written upon the docket opposite or 
 under the names of the following within named defendants. 
 
 Clerk. 
 
 No. 62. 
 Certificate of Satisfaction of Judgment. 
 
 [Title of action.] 
 
 Attorney for 
 Judgment rendered the day of . 190 , in favor of the 
 
 against the 
 
 For damages $ 
 
 For costs and extra costs $ 
 
 Total $ 
 
 The names of the defendants who were not summoned are:
 
 Appendix of Fokms. 521 
 
 [Venue.] ss.: 
 
 I, , Clerk of the Municipal Court of the city of New York, 
 
 borough of , Judicial District, do hereby certify that 
 
 the foregoing is a correct transcript from the docket of judgments kept 
 in my office, of judgments rendered in said court. 
 
 I also certify that the said judgment is satisfied and discharged 
 
 of record. In testimony whereof, I have hereunto subscribed my name 
 and affixed the seal of the said court this day of , 
 
 190 . Clerk. 
 
 No. 63. 
 
 Warrant of Commitment. , 
 
 STATE OF NEW YORK, ) 
 
 City of New York, (. ss. : 
 Borough of . ; 
 
 The People of the State of Neio York, to any marshal of the city of 
 New York, and to the keeper of the common jail of , greeting: 
 
 Whereas, at a regular session of the Municipal Court of the city of 
 New York, borough of , Judicial District, held 
 
 at the courtroom thereof, in the said borough, on the 
 
 day of , 190 . 
 
 Present, , a justice of the said court, while the said court 
 
 was engaged in the trial of then pending in said court be- 
 
 tween , plaintiff, and , defendant, according to 
 
 the statute in such case made and provided, of said 
 
 borough, did, during the sitting, and in the immediate view, presence, 
 and hearing of the said court, and while the said court was so engaged 
 as aforesaid, contemptuously, insolently and in a disorderly manner 
 so behave and conduct himself as to directly tend to interrupt its pro- 
 ceedings, and which conduct and behavior actually did interrupt the 
 proceedings of said court, and impair the respect due its authority, 
 
 by 
 
 And whereas, the said was thereupon required by the said 
 
 court to answer and show cause why he should not, for the cause afore- 
 said, be convicted of a criminal contempt of said court and be punished 
 therefor. 
 
 And whereas, the said did not show any such cause 
 
 And whereas, the said was thereupon, for the cause afore- 
 
 said, adjudged by the said court to be guilty of a criminal contempt 
 of said court, and was convicted thereof b;- the said court, and was or- 
 dered and adjudged by the said court, as a punishment for said con- 
 tempt, to pay a fine of dollars, and to be imprisoned in the 
 common jail of the said for the term of days, and 
 until such fine be paid or he be discharged according to law.
 
 522 Appendix of Forms. 
 
 Now, therefore, you, the said marshal, are hereby commanded to take, 
 convey, and deliver the said into the custody of the said 
 
 keeper of the said jail; and you, the said keeper, are hereby required 
 to receive the said into your custody in the said jail, and 
 
 him there safely keep during the said term of days, and until 
 
 he pay the said fine or be duly discharged according to law, and hereof 
 fail not. 
 
 Witness, , a justice of the Municipal Court of the city of 
 
 New York, Borough of , Judicial District, in the 
 
 city of New York, this day of , 190 . 
 
 Clerk. 
 
 Allowed in open court. Justice. 
 
 By the Court. Clerk. 
 
 [Seal.] 
 
 NOTE. 
 
 (See Code Civ. Proc, § 2874; Municipal Court Act, § 4.) 
 
 No. 64. 
 
 Execution against the Property — Single Defendant. 
 
 (Municipal Court Act, § 260.) 
 
 The People of the State of New York, to any marshal of the city of 
 New York, greeting: 
 
 Whereas, judgment was rendered on the day of , 
 
 one thousand nine hundred and , in an action in the 
 
 Municipal Court of the city of New York, borough of , 
 
 Judicial District, before , Esq., justice, between , 
 
 plaintiff, and , defendant, in favor of the said plaintiff, 
 
 against the said defendant, for the sum of 
 
 dollars. 
 
 And whereas, the sum of dollars is now actually due thereon: 
 
 Therefore we command you, that you collect the amount due on said 
 judgment, out of the personal property of the said judgment debtor, 
 and pay the same to the said and return thi9 execution 
 
 within twenty days after its issue to the said court, with a certificate 
 thereon indorsed, stating the manner in which you have executed the 
 same. 
 
 Witness, , Esq., a justice of said court at the borough of 
 
 , the day of , one thousand nine hundred 
 
 and . 
 
 Clerk.
 
 Appendix of Forms. 523 
 
 No. 65. 
 Execution against the Property — Joint Debtors. 
 
 (Municipal Court Act, § 268.) 
 
 The People of the State of New York, to any marshal of the city of 
 New York, greeting: 
 
 Whereas, judgment was rendered on the day of , one 
 
 thousand nine hundred and , in an action in the Municipal Court 
 
 of the city of New York, borough of the , Judicial 
 
 District, before , Esq., justice, between , plain- 
 
 tiff, and , defendant, in favor of the said plaintiff 
 
 against the said defendant, , for the sum of 
 
 dollars. 
 
 And whereas, the sum of dollars, is now actually due 
 
 thereon, 
 
 Therefore we command you, that you collect the amount due on said 
 judgment out of the personal property of the said judgment debtor 
 
 and the separate property of the judgment debtor 
 upon whom the summons herein was served, and pay the same to the 
 said plaintiff and return this execution, within twenty days after its 
 receipt by you, to the said Court, with a certificate thereon 
 
 indorsed, stating the manner in which you have executed the same. 
 
 Witness, , Esq., a justice of said court, at the borough of 
 
 , the day of , one thousand nine hundred 
 
 and 
 
 Judgment, $ 
 
 Costs, 
 
 Extra costs, 
 
 Clerk. 
 
 Indorsement. 
 
 The officer executing this process will take notice that the following- 
 named defendants were not personally served with a summons herein, 
 viz.: 
 
 and that as to them, the execution thereof must be restricted as below 
 prescribed. 
 
 An execution against property shall not be levied upon the sole prop- 
 erty of such a defendant, but it may be collected out of personal prop- 
 erty owned by him jointly with the other defendants who were sum- 
 moned, or with any of them, and out of the real and personal property 
 of the latter, or of any of them. 
 
 Clerk.
 
 524 Appendix of Forms. 
 
 No. 66. 
 
 Execution against the Person. 
 
 (Municipal Court Act, §§ 271, 272.) 
 
 The People of the State of New York, to any marshal of the city of 
 New York, greeting: 
 
 Whereas, judgment was rendered on the day of , one 
 
 thousand nine hundred and , in an action in the Municipal 
 
 Court of the city of New York, borough of , Judicial 
 
 District, before , Esq., justice, between , plain- 
 
 tiff, and , defendant, in favor of the said , 
 
 against the said , for the sum of dollars. 
 
 And whereas, the sum of is now actually due 
 
 thereon ; 
 
 Therefore, we command you, that you collect the amount due on said 
 judgment out of the personal property of the said judgment debtor. 
 
 And, if sufficient property of the said defendant liable to execution, 
 cannot be found wherewith to satisfy the said judgment, you are fur- 
 ther commanded to arrest the said defendant, and commit him to the 
 common jail of the city of New York, in the borough of , 
 
 the keeper whereof is hereby commanded to receive the said defendant 
 and him safely keep until he shall pay the judgment or be discharged 
 according to law; and return this execution within twenty days after 
 its receipt by you to the said Court, with a certificate stat- 
 
 ing the manner in which you have executed the same. 
 
 Witness, , Esq., a justice of said court, at the borough of 
 
 , in the city of New YorK, the day of , 
 
 one thousand nine hundred and 
 
 Clerk. 
 
 NOTE. 
 
 See also note under Form No. 65 as to " Indorsement." 
 
 No. 67. 
 
 Execution in Favor of Wage-Earners. 
 
 (Municipal Court Act, § 274.) 
 
 [Venue.] ss.: 
 
 The People of the State of New York, to any marshal of the city of 
 New York, greeting: 
 
 Whereas, , plaintiff, lately before the Municipal Court of 
 
 the city of New York, borough of , Judicial Dis- 
 
 trict, at the courthouse in said borough recovered against , 
 
 in a certain action, the sum of dollars, damages and
 
 Appendix of Forms. 525 
 
 costs; and whereas, an execution against the property of said defend- 
 ant was in due form of law issued by the clerk of said court to one 
 of the marshals of the city of New York, and the same having been re- 
 turned unsatisfied by such marshal; 
 
 And whereas, the action is one of those referred to in section 274 of 
 the Municipal Court Act (Laws 1902, chap. 580) ; 
 
 Now, therefore, we command you forthwith to take the body of the 
 said defendant and him safely convey to the common jail of the city of 
 New York in the borough of ; the keeper whereof is hereby 
 
 commanded to receive the said defendant, and safely keep 
 
 and imprison until he shall pay the amount of said judgment and costs, 
 together with the marshal's and jailer's fees; but such imprisonment 
 shall not exceed fifteen days, and the said jailer shall return this pre- 
 cept to the clerk of the said court, after the expiration of said fifteen 
 days, with his return thereon indorsed. 
 
 Witness, , our said justice at the place aforesaid, the 
 
 day of , 190 . 
 
 Clerk. 
 
 NOTE. 
 
 No property is exempt from levy and sale under an execution issued 
 under this section. 
 
 No. 68. 
 Indemnity Bond. 
 
 Know all men by these presents, that we, , and 
 
 , are held and firmly bound unto , a marshal of the 
 
 city of New York, in the sum of dollars, lawful money of 
 
 the United States of America, to be paid to the said , or 
 
 to his certain attorney or attorneys, executors, administrators, or as- 
 signs. For which payment, well and truly to be made, we bind our- 
 selves, our and each of our heirs, executors, and administrators, jointly 
 and severally, firmly by these presents. 
 
 Sealed with our seals. Dated the day of , in the 
 
 year one thousand nine hundred and 
 
 Whereas, the above-bounden did obtain judgment in the 
 
 Municipal Court of the city of New York, borough of , 
 
 Judicial District, against , whereupon execution has been 
 
 issued, directed, and delivered to the said , marshal afore- 
 
 said, requiring him. out of the personal property of the said judgment 
 debtor, to satisfy the judgment aforesaid. And whereas, certain personal 
 property that appears to belong to the said , said judgment 
 
 debtor, is claimed by one ;
 
 526 Appendix of Forms. 
 
 Now, therefore, the condition of the above obligation is such, that if 
 the above-bounden shall well and truly save, keep, and 
 
 bear harmless, and indemnify the said , and all and every 
 
 person and persons aiding and assisting him in the . premises, of and 
 from all harm, let, trouble, damage, liability, costs, counsel fees, ex- 
 penses, suits, actions, judgments, special proceedings, and executions 
 that shall or may at any time arise, come, accrue, happen, or be brought 
 against him, them, or any of them, as well for the levying and making 
 sale under and by virtue of such execution, of all or any personal prop- 
 erty which he or they shall or may judge to belong to the said judgment 
 debtor, as well as in entering any shop, store, building, or other prem- 
 ises, for the taking of any such personal property, then this obligation 
 to be void; otherwise to remain in full force and virtue. 
 Sealed and delivered in the 1 
 
 presence of j [l. s.] 
 
 [l. s.] 
 
 [Affidavits and acknowledgments.'] [l. s.] 
 
 No. 69. 
 
 Undertaking on Removing Cause to the City Court of the City of. 
 
 New York. 
 
 (Municipal Court Act, § 3.) 
 [Title of action.] 
 
 Whereas, the above-named plaintiff has commenced an action in this 
 court, for a cause of action arising under the Municipal Court Act of 
 the city of New York, and in which the claim or demand of the plaintiff 
 exceeds the sum of two hundred and fifty dollars; and the defendant 
 having appeared and joined issue therein, and before an adjournment 
 has been granted upon his application, having applied for the removal 
 of this action to the City Court of the city of New York, pursuant to 
 the provisions of the said act; 
 
 Now, therefore, we , the above-named defendant, . and 
 
 , of street, and , of street, 
 
 of the borough of , have, and hereby do, in consideration of 
 
 the premises aforesaid, and of one dollar to us in hand paid, jointly 
 and severally undertake that we will pay to the plaintiff the amount 
 of any judgment that may be recovered against the defendant in said 
 City Court of the city of New York in this action. 
 
 Dated , 190 . 
 
 In presence of [Signatures.]
 
 Appendix or Forms. 527 
 
 [Venue.] ss.: 
 
 and , being duly sworn, doth depose and say, 
 
 each for himself, that they reside , at No. street, 
 
 in the borough of , in the city of New York, and are each 
 
 holders therein, and are each worth dollars, as 
 
 ■well over and above all claims, undertakings, liabilities, and indebted- 
 ness, as over and above the property of deponent, which by law is exempt 
 from sale by execution. 
 
 Sworn to, this day of ) 
 
 , 190 , before me j 
 
 [Signature] 
 
 On this day of , 190 , before me personally came 
 
 and , to me known to be the individuals de- 
 
 scribed in, and who executed, the foregoing undertaking, and who sev- 
 erally acknowledged that they executed the same, and for the purpose 
 therein mentioned. 
 
 Notary Public, County. 
 
 I hereby approve of the within undertaking as to form and as to the 
 sufficiency of the sureties. Amount fixed at dollars. 
 
 Dated , 190 . Justice. 
 
 No. 70. 
 
 Order Removing Action. 
 [Title of action.] 
 
 Whereas, the above-named plaintiff has commenced an action in this 
 court against the above-named defendant, for a cause of action specified 
 in the Municipal Court Act of the city of New York, and the damages 
 claimed therein exceed the sum of two hundred and fifty dollars, and 
 the defendant ha appeared and joined issue therein and no adjourn- 
 ment has been had upon the application of the said defendant; and 
 whereas, the said defendant has applied to a justice of said court, for 
 an order removing the action into the City Court of the city of New 
 York, pursuant to the provisions of the said act, and has given the 
 undertaking required by statute, which undertaking with the sureties 
 therein has been duly approved. 
 
 Now therefore, it is ordered, pursuant to the said act, in such case 
 made and provided, that this action be and the same is hereby removed 
 into the said City Court of New York. 
 
 Dated , 190 . Justice.
 
 528 Appendix of Forms. 
 
 No. 71. 
 
 Affidavit to Obtain Order to Plead. 
 
 [Title of action.] 
 [Venue. ] ss.: 
 
 , being duly sworn, deposes and says that he is the at- 
 torney for the plaintiff in this action, which was originally commenced 
 in the Municipal Court of the city of New York, borough of , 
 
 Judicial District, on the day of , 190 , for an 
 
 amount exceeding the sum of two hundred and fifty dollars, and that 
 after issue joined and before trial, the defendant filed the usual under- 
 taking according to the statute in such case made and provided, and 
 removed the action into this court; that the pleadings in the court 
 below were oral and not in writing. [State no previous application has 
 been made as in Form No. 6.] 
 
 Sworn to before me, this 
 day of , 190 
 
 [Signature.] 
 
 No. 72. 
 Order to Plead. 
 
 At a Special Term, etc. 
 [Title of action.] 
 
 On reading and filing the annexed affidavit, and on motion of 
 
 attorney for the plaintiff herein, it is hereby ordered, that the 
 plaintiff in this action serve his complaint in writing on the defendant 
 within six days after the service of a copy of this order, and that 
 the defendant within six days thereafter serve an answer thereto, 
 and that the cause afterward proceed as an action originally commenced 
 
 in this court. 
 
 [Signature of judge.] 
 
 No. 73. 
 Notice of Appeal. 
 
 (Municipal Court Act, §§ 310-327.) 
 [Title of action.] 
 
 Take notice that the defendant hereby appeals to the 
 
 Appellate Term of the Supreme Court of New York, city and county 
 of New York,* from the judgment rendered against him in the above- 
 
 * If in Second Department, say " to the Appellate Division."
 
 Appendix of Forms. 529 
 
 entitled action, in favor of the plaintiff , on the day 
 
 of . 190 , for the sum of dollars, damages and 
 
 costs, and from the whole and each and every part of such judgment. 
 
 Dated , 190 . 
 
 To , Esq.. plaintiff and respondent, and 
 
 , Esq., clerk. 
 
 Yours, etc., 
 
 Attorney for defendant and appellant. 
 
 No. 74. 
 
 Undertaking on Appeal to Secure Stay of Execution. 
 
 (Municipal Court Act, § 314.) 
 [Title of action.] 
 
 Whereas, on the day of ,190 , in the above-named 
 
 court, , the above-named respondent, recovered a judgment 
 
 against , the above-named appellant, for ; 
 
 And the above-named appellant, feeling aggrieved thereby, intends to 
 appeal therefrom to the Appellate Term of the Supreme Court of New 
 York city and county of New York [or Appellate Division, Second De- 
 partment] ; 
 
 Now therefore, we, , of No. street, in the 
 
 of , and of No. street, 
 
 in said borough, do hereby, pursuant to the statute in such case made 
 and provided, undertake, that if the said appeal is dismissed, or if judg- 
 ment is recovered against the said appellant in the said appellate court, 
 and an execution issued thereupon is returned wholly or partly unsatis- 
 fied, we will pay the amount of the said judgment, or the portion thereof 
 remaining unsatisfied, not exceeding the sum of dollars. 
 
 Dated , 190 . 
 
 [Venue.] ss.: 
 
 , one of the subscribers to the foregoing undertaking, 
 being duly sworn, says that he is a resident and holder within 
 
 this State, and is worth the sum of dollars, over all his 
 
 debts and liabilities, and exclusive of property exempt by law from 
 execution. 
 
 Sworn to before me, this 
 day of , 190 
 
 I certify, that on this day of , 190 , before me per- 
 
 sonally appeared the above-named , known to me to be the in- 
 
 dividuals described in and who executed the above undertaking, and sev- 
 erally acknowledged that they executed the same. 
 
 Notary Public, County. 
 
 34
 
 530 Appendix of Forms. 
 
 One or more sureties in a sum of at least one hundred dollars, and 
 not less than twice the amount of the judgment to be approved by a 
 justice of the court. A copy of the undertaking with a notice of the 
 delivery thereof, must be served with the notice of appeal and in like 
 manner. Section 1335 of the Code of Civil Procedure applies to this 
 undertaking. 
 
 If the judgment appealed from is for the recovery of a chattel, the 
 undertaking must be to the effect that the sureties will pay the sum 
 fixed by that judgment as the value of the chattel, together with the 
 damages, if any, awarded for the taking, withholding, or detention 
 thereof. 
 
 As to form of Justice's Return on Appeal, see Code Civ. Proc., § 3050, 
 ante. 
 
 As to form of Undertaking as condition of opening " Default" see 
 Municipal Court Act, §§ 253, 254, 255, 256. 
 
 No. 75. 
 
 Return of Justice. 
 
 (See Municipal Court Act, § 317.) 
 
 To the Supreme Court, Appellate Term [or Appellate Division], 
 
 Judicial Department, for hearing of appeals from the Municipal 
 Court of the city of New York, borough of , 
 
 Judicial District: 
 
 . An appeal having been taken from the judgment heretofore rendered 
 in a certain action wherein w plaintiff and 
 
 w defendant , tried, on the day of , A. d. 190 , be- 
 
 fore me , in the Municipal Court in the city of New York, 
 
 boTOUgh of , District; 
 
 I, , justice of said court, do, pursuant to the statute in 
 
 such case made and provided, hereby respectfully return the testimony, 
 proceedings, and judgment in the said action. 
 
 On the day of , 190 , a summons was 
 
 issued out of the Municipal Court in the city of New York for the 
 borough of , Judicial District, signed by the clerk 
 
 of the said court, a copy thereof being hereunto annexed. 
 
 [Said summons not having been served within the time required by 
 law, alias summons were thereupon issued from time to time, the last 
 of which being returnable on the day of , 190 .]
 
 Appendix qf Forms. 531 
 
 The said summons has indorsed upon it the following: 
 
 City and County of New York, ss. : 
 
 On the day of , I served the within summons 
 
 in the city of New York, on the within-named defendant in 
 
 person at No. by delivering to and leaving with 
 
 a true copy thereof, and at the same time showing the within original, 
 
 and that I know the person served to be the defendant therein named. 
 
 Marshal, 
 or, 
 
 City and County of New York, ss.: 
 
 , being duly sworn, says that on the day of 
 
 , 190 , at No. in said city, he served the within sum- 
 
 mons on , the defendant therein named, by de- 
 
 livering to and leaving with a true copy thereof, and at the 
 
 same time showing the within original; that he knew the person so 
 served to be the person described in said summons as defendant 
 therein; that deponent is twenty-one years of age, and a resident of 
 said city. 
 
 Sworn before me, this day ) 
 
 of , 190 . j" 
 
 I further certify, that on the said day of , 190 , the 
 
 same being the day mentioned in said summons for the return thereof, 
 the parties therein named respectively appeared, to- wit: the plaintiff 
 by , Esq., of counsel, and the defendant by , 
 
 Esq., of counsel, and the said plaintiff complained against the said 
 defendant as follows: and the said defendant answered 
 
 as follows : 
 
 Issue being thus joined between the parties, the said cause was there- 
 upon adjourned by until the day of , 190 , 
 at o'clock in the noon, and thereafter from time to time 
 until the day of , 190 . 
 
 On the said day of , 190 , both parties again appeared, 
 
 and [a jury having been duly demanded and empaneled] the said cause 
 was tried. 
 
 The exhibits used on the said trial are annexed and the 
 
 evidence given on said trial is as follows: 
 
 The case here closed, and I thereupon, to-wit, on the 
 
 day of , 190 , rendered judgment in favor of the 
 
 and against the , for $ damages, besides $ 
 
 costs, and $ extra costs, making a total of 
 
 dollars. 
 
 All of which is respectfully submitted. 
 
 Dated New York, , 190 . 
 
 Justice of the Municipal Court of the City of New York, 
 Borough of , Judicial District.
 
 532 Appendix of Fokms. 
 
 No. 76. 
 Warrant in Action to Foreclose a Lien on a Chattel. 
 Municipal Court Act, SS 137, 1:58.) 
 City and County of New York, ss. : 
 
 The People of the State of New York, to any marshal of the city of 
 I ork to whom he annexed summons is delivered, greeting: 
 
 Whereas. lias made application to the Municipal Court of 
 
 the city of New York, borough of , District, for a 
 
 warrant of attachment in favor of againsl certain property 
 
 in said application, and the mortgage accompanying the same described, 
 according to the provisions of the Code of Civil Procedure and the 
 Municipal Court Act of said city relating thereto, for a debt or demand 
 of dollars, and cents, being the amount sworn 
 
 to by the applicant, which debt arose upon , and to secure 
 
 the payment whereof the said mortgage was made and delivered, and 
 requisite proof by affidavit, and undertaking with sufficient surety hav- 
 ing been executed. You are therefore required to seize and attach on 
 or before the day of , 190 , being the sixth day before 
 
 the return day of the summons hereunto annexed, the goods and chattels 
 in the said mortgage described and named in the schedule indorsed 
 hereon, and safely keep the same to abide any judgment that may be 
 recovered in this action. And do you make return of your proceedings 
 hereon to the said court at the courtroom in 
 
 said city, at the time when the summons issued herein is returnable, 
 and have you then and there this precept. 
 
 Issued by order of the court, this day of , 190 . 
 
 Clerk of said court. 
 
 Granted and allowed this day of , 190 . 
 
 Justice. 
 
 No. 77. 
 Judgment in Action to Foreclose Lien. 
 
 (Municipal Court Act, § 141.) 
 
 I find that the plaintiff has a lien on said chattels for the sum of 
 $ , and render judgment for the plaintiff for the amount 
 
 thereof, to-wit: $ damages, besides $ costs, and 
 
 $ extra costs, and direct that the officer to whom an execu- 
 
 tion herein may be directed sell the chattels mentioned in said mort- 
 gage, and satisfy said lien and the costs, and that the proceeds of such 
 sale, less his fees and expenses, be applied to the payment of said lien 
 and the costs of this action, and that any surplus money received there- 
 from be paid to the clerk of the court for the benefit of the owner, if the 
 safe-keeping thereof is necessary. 
 
 Dated , 190 . Justice.
 
 Appendix of Forms. 533 
 
 No. 78. 
 Execution against the Property — Mechanic's Lien. 
 
 The People of the State of New York, to any marshal of the city of 
 New York, greeting: 
 
 Whereas, judgment was rendered on the day of , one 
 
 thousand nine hundred and . in an action in the Municipal 
 
 Court of the city of New York, borough of , District, 
 
 before , justice, between , plaintiff, and 
 
 , defendant, in favor of the said plaintiff against the 
 
 said defendant , for the sum of dollars. 
 
 And whereas, said judgment was rendered pursuant to the acts of the 
 Legislature of the State of New York, in an action to enforce a me- 
 chanic's lien against the following premises, viz. : 
 
 And it appears by the complaint on file and forming part of said 
 judgment-roll that on the day of , 190 , a notice of 
 
 such lien was duly filed with the clerk of the county of New York, 
 wherein the above-named defendant was described as the owner of said 
 premises, and it further appearing that the sum of dollars 
 
 is now actually due upon said judgment; 
 
 Therefore, we command you, that you collect the amount due on said 
 
 judgment out of the personal property of the said judgment 
 
 debtor and the separate property of the judgment debtor 
 
 upon whom the summons herein was served and pay the 
 
 same to the said plaintiff . 
 
 And you are hereby further commanded in default of such collection 
 to sell the right, title, and interest of said defendant in and to said 
 above-described premises upon which the claim set forth in said com- 
 plaint was a lien at the time of the filing of the notice prescribed, and 
 out of the proceeds thereof to satisfy the said judgment. And you 
 are to return this execution, within twenty days after its receipt by you, 
 to the said court, with a certificate thereon indorsed, stating the man- 
 ner in which you have executed the same. 
 
 Witness, Esq., justice of said court, at the city of New 
 
 York, the day of , one thousand nine hundred and 
 
 Judgment, $ 
 Costs, 
 Extra costs, 
 
 Clerk.
 
 534 Appendix of Forms. 
 
 No. 79. 
 
 Affidavit and Order for Substituted Service, and Affidavit of Service 
 
 Thereof. 
 
 (Municipal Court Act, §§ 32, 33, 34, 35.) 
 
 [Title and venue.] 
 
 , being duly sworn, says that he is the attorney 
 for the above plaintiff; that the summons in this action was issued on 
 the day of , 19 ; that said defendant 
 
 resides at No. , borough of , city of New York; that 
 
 an alias summons was duly issued in said action on the 
 day of . 1!) ; that proper and diligent effort has been 
 
 made to serve the summons upon the defendant ; that the 
 
 place of his sojourn cannot be found and personal service cannot be 
 made, or [that he is within the city and avoids service so that per- 
 sonal service could not be made], as will more fully appear by the 
 affidavit of , who is a person not a party to the 
 
 action, and the return of , one of the marshals 
 
 of the city of New York, both of which are hereto annexed and made 
 a part hereof. 
 
 Wherefore deponent asks that an order may be made by this court 
 for the service of the summons in this action upon the defendant 
 , pursuant to the provisions of chapter 580 of the 
 Laws of 1902. [No previous application, etc., as in Form No. 6.] 
 
 Sworn to before me, this ) 
 
 day of ,19 . j" 
 
 Note. — Annex the affidavit of a person not a party to the action, and 
 the return of a marshal showing in detail what efforts were made to ef- 
 fect personal service, in order that the court may be satisfied that proper 
 and diligent efforts were made. 
 
 Order. 
 
 [Title.] 
 
 Upon satisfactory proof by the affidavit of , at- 
 
 torney for the above plaintiff, verified , and the 
 
 affidavit of , a person not a party to the action, 
 
 verified , and the return of , 
 
 one of the marshals of the city of New York, dated , 
 
 that the defendant , resides within the city of 
 
 New York, to-wit, at No. , in the borough of 
 
 , in said city of New York; that said action was brought 
 in this court, in the borough of district; that 
 
 the summons therein was issued on the day of ,
 
 Appendix of Fokms. 535 
 
 19 ; that an alias summons was duly issued on the day of 
 
 ,19 ; that proper and diligent effort has been made to 
 serve the summons upon the defendant , and 
 
 that the place of his sojourn cannot be found so that personal service 
 could not be made, [or that he is within the city and avoids service, so 
 that personal service could not be made]. 
 
 Ordered, that the service of the summons [and complaint] herein on 
 the defendant , be made by leaving a copy thereof, and of the 
 
 order, at No. , in the borough of , 
 
 in said city, being the last known place of residence of the defendant 
 , with a person of proper age, if upon reasonable applica- 
 cation, admittance can be obtained, and such person found who will re- 
 ceive it. or. if admittance cannot be obtained, nor such a person found, 
 by affixing the same to the outer or other door of the defendant's resi- 
 dence, and by depositing another copy thereof, properly inclosed in a 
 post-paid wrapper, addressed to him, at his place of residence, in a post 
 office in the borough in which he was last known to reside. 
 
 Affidavit of Service. 
 [Title and venue.] 
 
 , being duly sworn, deposes and says that he is 
 of the age of , and upwards ; that on the day of 
 
 ,19 , at the city of New York, he served the summons 
 [and complaint] in the above action on the defendant therein, 
 
 according to the order of the court, dated the day of , 
 
 19 , by leaving a copy of said summons [and complaint], and of said 
 order at No. , in the borough of , in said city, being 
 
 the last known place of residence of the defendant, with , a 
 
 person of proper age, to wit, of the age apparently of years, 
 
 on the day of , 19 , at o'clock on said 
 
 day. deponent having made application at said time for admittance to 
 said premises, and having obtained admittance and finding such per- 
 son there and who received the same [or, that he could not obtain ad- 
 mittance, nor find such a person and affixed the same to the outer or 
 other door of the defendant's residence]. That on the same day he 
 deposited another copy of said summons [complaint] and order, properly 
 inclosed in a post-paid wrapper, addressed to said defendant at his said 
 last known place of residence, at , being a post office in the 
 
 borough in which said defendant was last known to reside. Deponent 
 further says that he knew the person so served as aforesaid to be the 
 same person mentioned and described as defendant in said summons. 
 
 Sworn to before me, this 
 
 day of , 19 
 
 • I
 
 536 Appendix of Forms. 
 
 No. 80. 
 Undertaking on Opening Default. 
 (Municipal Court Act, § 256.) 
 [Title of actio>i.] 
 
 Whereas, on the day of , 190 , in the Municipal 
 
 Court of the city of New York, borough of , 
 
 District, judgment was rendered in the above-entitled action on default 
 in favor of plaintiff against said , defendant; 
 
 And whereas, on motion of said defendant said court, by an order 
 herein dated the day of , 190 , opened said default 
 
 and allowed said defendant to come in and defend said action on con- 
 dition that he give the undertaking in such case required by statute; 
 
 Now, therefore, said defendant, , as principal, and 
 
 and . as sureties, do hereby jointly and severally 
 
 undertake to the said plaintiff, pursuant to the statute in such case 
 made and provided, that such defendant will not sell, as- 
 
 sign, or transfer any of his property with intent to hinder, delay, or 
 defraud the plaintiff in the collection of his claim or demand herein if 
 the plaintiff shall prevail on the trial of said action, and that we will 
 pay the amount of any judgment recovered against such defendant in 
 such action. 
 
 Dated. 
 
 [Add affidavits of qualification and acknowledgment.] 
 
 No. 81. 
 Affidavit as to Costs and Disbursements. 
 (Municipal Court Act, § 344.) 
 [Title of action.] 
 
 , being duly sworn, says that he is the attorney for the 
 
 in said action. That the witness fees herein amount to 
 
 dollars. That the witnesses, , , 
 
 were in actual attendance upon the trial of said action in this court 
 
 days, to- wit, on . That the travel fees charged 
 
 amount to dollars. That the distances for which they are 
 
 claimed are as follows: 
 
 That the copy of was actually and necessarily used, or 
 
 was necessarily obtained for use. That the item of disbursements 
 was necessarily incurred, and is reasonable in amount. 
 [Jurat.] 
 
 Note. — For forms as to " Interpleader," " Confession of judgment," 
 " Remittitur," and other forms, see Abbott's Forms.
 
 INDEX. 
 
 Abandonment bonds. (See Bastardy Bonds.) 
 
 cases, jurisdiction to commit, 277. 
 
 of married woman by husband, credit of husband, 46. 
 
 by married woman of husband, no support, 4(j. 
 
 requiring further security for, 277. 
 Abatement of action. Loss of jurisdiction, 82. 
 
 and bar answer, 257. 
 Abbreviations in pleadings, 242. 
 
 Accord and satisfaction, defense of, must be pleaded, 258. 
 Account (See also Bill of Particulars), exhibition of, at instance of adverse 
 party may be ordered, 271. 
 
 and bill of particulars, 272. 
 
 debits and credits, 272. 
 
 detailed statement, 272. 
 
 or instrument for the payment of money, 251. 
 
 stated, implied assent, 42. 
 
 stated, complaint in action, 251. 
 Accounting, money deposited, jurisdiction in action for, 47. 
 
 money had and received, jurisdiction in action for, 47. 
 Act, construction of this, 466. 
 
 how may be cited, name, 467. 
 
 when this takes effect, 467. 
 
 statutory construction, 141. 
 Action. (See also Jurisdiction, Special Proceeding, and the various subjects of 
 an action.) 
 
 another, pending, answer of, 257. 
 
 another, pending, ground for demurrer, 267. 
 
 answer of title in, 280. (See Answer of Title.) 
 
 association, against, where brought, 121. 
 
 cause of, on attachment, 203. 
 
 improperly joined, demurrer, 268. 
 
 what causes of, may be joined in the same complaint, 245. 
 
 cannot be continued before another justice, while a special proceeding may, 
 113, 326. 
 
 chattel, to recover, 209, 211. 
 
 chattel, to recover, and no requisition, 235. 
 
 chattel, to recover when jury of twelve, 318. 
 
 chattel, damages for detaining, 211. 
 
 [o37]
 
 538 Index. 
 
 Action for damages, chattel, when injured, etc., by defendant, 229. 
 injury, etc., no defense in such action, 234. 
 marshal's return in such action, evidence therein, 23 4. 
 against marshal by third person claiming title in replevin, 227. 
 against marshal by third person, when summons to be issued in such 
 
 action, 227. 
 against marshal, indemnity to marshal in such action, 228. 
 on undertaking in replevin, 234. 
 when not affected by failure to replevy, 233. 
 to foreclose lien on a chattel, 230. (See Lien on Chattel.) 
 city of New York, by or against, how brought, 121. 
 commenced, how, 122. 
 commenced, when deemed, 123. 
 on conditional sale agreement, how brought, 237. 
 continued from day to day, but not before another justice, 113, 326. 
 consolidation of, on removal, 89. 
 corporation, against, where brought, 121. 
 costs in answer of title, when, 280. 
 and demurrer, 200. 
 
 for difference in excess of jurisdiction of court, 266. 
 discontinuance of, 123. 
 discontinuance in answer of title, 280. 
 discontinuance on removal, 90. 
 discontinuance, right to, 327. 
 sureties on undertaking in replevin liable, 50. 
 dismissal of, nonappearance of plaintiff, 82. 
 dismissal of, when attachment vacated, 206. 
 enjoining, 42. 
 
 for fine or penalty, where to be brought, 58. 
 by fire commissioner, health department, etc., 120. 
 to foreclose lien upon a chattel, execution against person not to issue, 
 
 unless summons is indorsed, 358. 
 former, costs unpaid, 438. 
 indorsement on summons, 58, 358. 
 jurisdiction of, 40-82. 
 jurisdi "tion, no, 81-87. 
 
 marshal cannot serve summons in his own, 388. 
 
 mechanic's lien, summons may be served anywhere in the State, 105. 
 merits of, on attachment, 204. 
 milk and cream cans, 121. 
 new cause of, defense, amendment, 273. 
 nonresidents, 121. 
 by poor person, 155. 
 practice on removal of, by, 155. 
 
 process in, may be served in any part of the city of New York, 105. 
 real party in interest, must be prosecuted in name of, 152.
 
 Index. 539 
 
 Action removed, status of, 92. 
 
 removed, not as one brought in court of record, 93. 
 
 revivor of, 123. 
 
 special proceeding, where must be brought, 119. 
 
 Statute of Limitations, six years, 56. 
 
 transfer of, when and how, 120. 
 
 transfer of, mandamus, 122. 
 
 upon undertaking where warrant is vacated, 200. 
 
 where must be brought, 119. 
 Adjournments, 285. 
 
 absence of witness, 286. 
 
 affidavits to obtain, 286. 
 
 on amendment of pleadings, 272. 
 
 arrest, when defendant under, 285. 
 
 where commission granted, 297, 298. 
 
 conditions may be imposed, 288, 437, 444. 
 
 by consent, 285, 286. 
 
 costs on, 287, 437, 444. 
 
 default, judgment after, 82, 249. 
 
 discretionary, 287. 
 
 of examination, taking deposition of witness conditionally, 308. 
 
 exception to refusal, 287. 
 
 extending time to answer, demur or plead, 241, 242. 
 
 illegal, loss of jurisdiction, 82. 
 
 of justification of sureties, 93, 224. 
 
 length of, 285, 287. 
 
 for eight days, 285. 
 
 longer than eight days, undertaking, 287, 288. 
 
 not a matter of right, 287. 
 
 removal of action before, 87, 88. 
 
 to allow sureties to justify on undertaking on removal, 93, 224. 
 
 trial may be adjourned, when, 285, 323. 
 
 of trial, after return of jury, conditions thereof, 321. 
 
 undertaking by arrested defendant when applying for, 175. 
 
 waiver of right of removal by, 92, 93. 
 Administrator, jurisdiction in action against, 80. 
 
 counterclaim, 265. 
 
 judgment, 265, 340. 
 Administratrix and individually may unite separate contracts in same com- 
 plaint, 245. 
 Affidavit, additional, on application to vacate, etc., attachment, 202, 203. 
 
 additional, or supplement, 213. 
 
 amendment of, 52, 91, 207, 223, 231. 
 
 arrest, to obtain order for, 169, 170. 
 
 attachment, to obtain warrant of, 184-191. 
 
 for commission to take testimony, 297.
 
 540 Index. 
 
 Affidavit, deposition to t;ike testimony conditionally, 304, 306. 
 
 counter, to be used on motion to vacate order of arrest, 177. 
 
 disbursements, 4 4 '. » . 
 
 insufficiency of, in motion to vacate attachment, 203. 
 
 of merits, when accessary, 348. 
 
 mistakes, omissions, defects, and irregularities respecting, 52, 91, 171, 193, 
 207, 223, 331, 109. 
 
 replevin, by defendant in, '1-2. 
 
 of claim of title by third person in, 226. 
 
 setting aside, 215. 
 
 substituted service, to obtain order for, 134, 135, 136. 
 
 and undertaking in replevin, 211, 212, 216. 
 Affirmative relief on the ground of fraud, no, 86. 
 Agent, modification of contract with insurance, discharges surety, 52. 
 
 may make affidavit for replevin or return, 217. 
 
 verification by, 270. 271. 
 Agency of married woman, 46. 
 
 Aldermen, hoard of, duty of, as to courthouse, 117. 
 Alias Summons. (See Summons.) 
 Allowance of undertaking, 212. 216, 225. 
 Amount of claim, increasing, 91, 94. 
 
 due, must be stated in affidavit for attachment, and facts shown, 184. 
 
 jurisdiction $500, 48, 40. 56, 58, 59, 62, 68, 71, 73, 80. 
 
 jurisdiction, excess, waiver of, 48, 85. 
 
 on removal of action, 87, 89, 93, 94. 
 
 of more than $250 may be recovered after removal, 94. 
 
 of claim, increasing after removal, 94. 
 
 of recovery on removal of action cannot be had beyond the amount stated 
 in the complaint. 95. 
 
 of recovery after removal limited as in court below, 93. 
 
 reducing. 91. 
 
 waiver of. in excess of jurisdiction, 48, 85. 
 Amendment of affidavit of service, 137. 
 
 allowance of, is mandatory on the court, 273. 
 
 answer of title, 278. 
 
 of bill of particulars. 243. 
 
 costs may be imposed by court on, 272, 437, 444. 
 
 of commission to take testimony, 296, 301. 
 
 on demurrer, 273. 
 
 fictitious name in summons, 124. 
 
 of judgment, 70, 71, 81, 125. 
 
 of judgment after filing transcript, 359. 
 
 justice volunteering, 11, 273, 412. 
 
 material variance between pleading and proof, 273. 
 
 mistake in name, 273. 
 
 new cause of action, 273.
 
 Index. 541 
 
 Amendment of notice of appeal, when allowed, 405, 408. 
 
 of pleadings, 41, 93, 266, 272. 
 
 of pleadings after removal of action, 93, 95. 
 
 payment, 273. 
 
 remanding art ion removed for amendment of defective undertaking, 92. 
 
 of return on appeal. -1 12. 
 
 return of commission, 301. 
 
 substituted service, 134. 
 
 in summary proceedings, 70. 
 
 of summons, 85, 124, 139. 
 
 tort and conl racl , 273. 
 
 variance between pleading and proof, 275. 
 
 voluntary, by the justice of return on appeal, 412. 
 
 of undertaking, 49, 89, 92, 94, 207, 212, 223, 225. 
 
 of undertaking on appeal, 409. 
 
 of undertaking on arrest, 170. 
 Answer. (See also Pleading.) 
 
 abatement and bar, 257. 
 
 admissions, 257. 
 
 affirmative defenses, what must be pleaded, what cannot be proven under 
 a general denial, 258-261. 
 
 another action pending, discontinuance and abatement, 257. 
 
 bad, good enough for bad complaint, 269. 
 
 conclusion of fact, 258. 
 
 contract, performance, conditions precedent, how pleaded, 258. 
 
 conversion, 258. 
 
 consideration, 258. 
 
 construing. 258. 
 
 corporation, 258. 
 
 defect of parties, 259. 
 
 demurrer to. 209. 
 
 extending time to, 241, 242. 
 
 fact in complaint. 259. 
 
 failure to. does not prevent defendant from moving to dismiss complaint, 
 324. 331. 
 
 false verification of, not contempt, 101. 
 
 form of denial, 259. 
 
 fraud, 259. 
 
 general denial, 259, 260. 
 
 inconsistent defenses, 260. 
 
 insufficient defenses, 260. 
 
 judgment, how pleaded, 200. 
 
 misjoinder, 201. 
 
 misnomer, 260. 
 
 mitigation of damages, 260. 
 
 new matter, 200.
 
 542 Index. 
 
 Answer, nonjoinder, 261. 
 
 part of complaint, 268. 
 
 partial defenses, 201, 268. 
 
 possession, 258. 
 
 removal of action, amendment of, 95. 
 
 removal of action, supplemental, 92. 
 
 Statute of Frauds, 258. 
 
 Statute of Limitations, 258. 
 
 stricken out for contempt, 98. 
 
 test of sufficiency of defense, 262. 
 
 of title, 278. 
 
 of title, action to recover costs, when, 280, i.81. 
 
 of title, amended, 278. 
 
 of title, board of health, 278. 
 
 of title, costs where title to real property comes in question, 281. 
 
 of title, costs after discontinuance, 444. 
 
 of title, defendant to deliver undertaking, 278. 
 
 of title, defense of, 280. 
 
 of title, discontinuance of action in answer of title, 280, 282. 
 
 of title, dismissal of action, 281. 
 
 of title, new action to be brought in Supreme Court, 280. 
 
 of title, same cause of action, and defense in new action, 282. 
 
 of title, no jurisdiction, where, comes in question, 85, 278. 
 
 of title, one or more of several "defenses ; proceedings thereupon, 282. 
 
 of title, penalty for failure to deliver undertaking, 281. 
 
 of title, retention of undertaking, 278. 
 
 of title, summons and complaint to be delivered in new action, 280. 
 
 of title, title appearing from plaintiff's own showing, 281. 
 
 of title, to sue, 262. 
 
 of title, in third person in replevin, 228. 
 
 of title, undertakings in action to recover, valid in new action, 282. 
 
 unverified, motion to dismiss complaint, 245. 
 
 usury, 262. 
 
 waives all objections, 262. 
 
 what to contain, 257. 
 
 when title comes in question, 278, 279. 
 
 when title does not come in question, 279. 
 Appeal, 399-436. 
 
 abuse of discretion, 402. 
 
 amendment of notice of, when allowed, 405, 406, 408. 
 
 amendment of undertaking on, 409. 
 
 appealable, what is, 422. 
 
 when, will not lie, and questions not reviewable, 422. 
 
 Appellate Division of the Supreme Court, leave to, 432. 
 
 Appellate Term may increase recovery, 401. 
 
 of argument, ready for, 421.
 
 Index. 543 
 
 Appeal, Bronx brought, First District, may be brought in Second Judicial 
 Department, 401. 
 
 Brooklyn, borough of, 401. 
 
 case, settlement on, 41G. 
 
 clerk appellate court to return papers et cetera; remittitur, 421. 
 
 construction of statute, 401. 
 
 costs on, 437, 448, 451. 
 
 costs on, to be taxed by clerk, 402. 
 
 cross, 402. 
 
 Court of Appeals, leave to, 433. 
 
 death, where adverse party has died, 408, 417, 418. 
 
 order of substitution in such case, 419. 
 
 default, from order opening, 348, 355, 356, 402. 
 
 discontinuance, 403. 
 
 dismissal of, unauthorized, 41G. 
 
 duty of justice to approve undertaking on, 409. 
 
 exception to and justification of sureties, 409, 410. 
 
 hearing, manner of, 403. 
 
 hearing on dismissal thereof, reversal on stipulation, 420. 
 
 irregularity of notice of, 405. 
 
 judgment must be appealed from, 405. 
 
 judgment on, power of court, 421. 
 
 in one's own favor, 402. 
 
 jurisdictional defects, 403. 
 
 justice dead, when, 417. 
 
 leave to appeal to the Appellate Division of the Supreme Court, 432. 
 
 leave to appeal to the Court of Appeals, 433. 
 
 levy upon personal property, when superseded by, 411. 
 
 in mechanic's lien actions, 403. 
 
 mistakes, omissions, defects, irregularities, and general rules affecting affi- 
 davits, bonds, and undertakings, 52, 91, 171, 193, 331, 409. 
 
 new trial, order granting or denying motion for, for fraud or newly- dis- 
 covered evidence, 354. 
 
 notice of, when sufficient, 405. 
 
 notice of, when not sufficient, 406. 
 
 notice of, irregularity of, 405. 
 
 notice of, omission to serve, how supplied, amendment of, when allowed, 
 406, 408. 
 
 objections, what may be raised on the, 423. 
 
 objections, what cannot be raised for the first time on, 423. 
 
 offer to allow judgment, effect of, on, 404. 
 
 offer to allow judgment after removal on, 91, 250. 
 
 from order, 403. 
 
 from order denying motion to open default, no, must appeal from judg- 
 ment, 356. 
 
 from order granting or denying motion for new trial on ground of fraud 
 or newly-discovered evidence appealable, 403.
 
 544 Ikdex. 
 
 Appeal from order opening default, remedy, 348. 
 
 from order opening default, to Bet aside verdict, or vacate or amend judg- 
 ment, and for new trial on ground of fraud or newly -discovered evi- 
 dence, except in first instance, from order opening default and vacating 
 a judgment entered thereon, 355. 
 
 from order opening judgment taken by default, 406. 
 
 no appeal from such, w hen defendant not served with summons, 400. 
 
 payment i f judgment, 404. 
 
 poor person, 159. 
 
 reargument, 432. 
 
 remittitur, clerk of appellate court to return papers, etc., 421. 
 
 restitution upon reversal, 419. 
 
 restitution, practice in such case explained, 419. 
 
 return on, 411. 
 
 return on, cannot be contradicted on, 12. 
 
 return on, amending or correcting on, 412. 
 
 return on, rules as to, 416. 
 
 rules for the hearing of appeals, First Judicial Department, in the bor- 
 oughs of Manhattan and The Bronx, 434. 
 
 rules, Second Judicial Department, in the boroughs of Kings, Queens, and 
 Richmond, 435. 
 
 service of notice of, upon respondent, 407. 
 
 service of notice of, manner of, 408. 
 
 service of notice must be on opposite party, 408. 
 
 settlement of case on, 41G. 
 
 setting off costs and recovery, 420. 
 
 stay of proceedings on, 410, 411. 
 
 several claims, 404. 
 
 in summary proceedings, 70. 
 
 summons not personally served, 404, 406. 
 
 time for, 407. 
 
 time to, expiration of, 405, 
 
 time to, extension of, 405. 
 
 time to, not in, 405. 
 
 waived, when not, 403. 
 
 waiver of motion to dismiss, 421. 
 
 what is sufficient execution of undertaking on, 410. 
 
 when and how, may be taken, 399-404. 
 
 Supreme Court, First Judicial Department, 400. 
 
 Supreme Court, Second. Judicial Department, 400, 404. 
 
 when judgment will be affirmed, 325, 326, 331, 335, 414, 424. 
 
 when it will be reversed — grounds for reversal, 324, 325, 327, 335, 348, 
 413, 427. 
 
 unauthorized, dismissal of, 416. 
 
 undertaking to stay execution upon judgment, 408, 409, 410. 
 Appearance by attorney, 41, 145, 440.
 
 Index. 545 
 
 Appearance by attorney, authority of, 145. 
 bond for, action on, 49. 
 and consent, 79. 
 coats cannot be had by attorney unless written notice of, filed, or verified 
 
 complaint, 440. 
 fictitious name, 123. 
 general, confers jurisdiction, 130. 
 meaning of word, 144. 
 of parties, 144, 146. 
 special, not on the merits, 242. 
 waives objection to summons, 125. 
 Appellate Division, Second Judicial Department, manner of hearing appeals, 
 403, 404. 
 rules of the, 403, 434. 
 leave to appeal to, 432. 
 Term, manner of hearing appeals, 403. 
 Term, rules of the, 403. 
 Appendix of Forms, 481. (See Forms.) 
 Arrest, 160-183. 
 
 action on bond on, 49. 
 
 affidavit and undertaking, upon granting order of, 169. 
 
 affidavit, to obtain order of, contents, 170. 
 
 affidavit, identity of ground of, with cause of action cannot be tried on, 
 
 179. 
 affidavit, belief, 176. 
 
 affidavit, in answer of title, undertaking, 280. 
 assignment of claim, 164. 
 attorney, when privileged from, 182. 
 auctioneer, when liable to, 163. 
 
 bail or deposit before and after return of, 172, 174. 
 bail may be examined, 173. 
 bailment and conversion, 165. 
 bankruptcy, purchase on eve of, 167. 
 boarding-house keeper's lien, 165. 
 broker, 163. 
 
 chattels wrongfully detained, 165. 
 chattels, concealment of, 176. 
 check sent by mistake, 165. 
 
 Christian name of plaintiff must be stated on order of, 177. 
 complaint, used as affidavit, 170. 
 concealing or removing property, 168. 
 conditional sale agreement, no arrest in such case, 162. 
 conversion of check, 165. 
 conversion of money to pay note, 165. 
 conversion of promissory note, 165. 
 counter-affidavits, 177. 
 
 35
 
 54G Index. 
 
 Arrest, credit expires, action before, 164. 
 credit, false, 164. 
 
 custody, when and how defendant to remain in, on, 174. 
 defective copies of papers served, no ground for vacating, 178. 
 election day, 182. 
 execution on, 367. 
 exemption from, 182. 
 
 extension of time of payment of debt vacates prior, 178. 
 factors and commission merchants, 163. 
 of female, 161. 
 fiduciary capacity, 178. 
 fraud in contracting debt, 166, 170, 178. 
 fraud, contemporaneous, 166. 
 fraud by partner, 166. 
 goods on credit, 171. 
 goods, stolen, 179. 
 inconsistency, 180. 
 identical money, 179. 
 identity of ground of, with cause of action, cannot be tried on affidavits, 
 
 179. 
 infant, when liable to, 167. 
 information and belief, 180. 
 in what cases may be granted, 161. 
 is to punish for the tort, 161. 
 is a provisional remedy, 161. 
 joint debtors, 167. 
 
 judgment for, when defendant liable to, 10, 344. 
 judgment, action on, for fraudulent debt, 162. 
 jurisdiction to issue or vacate order of, 78. 
 when justice is a witness, 172. 
 marshal, duties of, on, 173, 388. 
 mechanic's lien, action, 162. 
 misrepresentations, 167. 
 
 motion to vacate, when it can be made, 176, 179, 180. 
 new grounds of, 181. 
 order of, what to direct, 171. 
 order of, statements in, 181. 
 order of, must be served by marshal, 160, 388. 
 order of, where may be served, 162. 
 order of, in action to foreclose lien on a chattel, 238. 
 papers to be delivered to arrested person, proceedings thereon, 171. 
 partners cannot arrest each other, 162. 
 place of, 162. 
 
 plaintiff to be notified of, 172. 
 principal and agent, 167. 
 privileged from, 181, 182.
 
 Index. 54.7 
 
 Arrest, right of action on undertaking on order of, 52. 
 
 scienter, 167. 
 
 settlement after the fraud, cause to vacate order of, 181. 
 
 sureties on undertaking on. must justify when required by marshal, 388. 
 
 suspicious circumstances, 168. 
 
 third person, claim of, 163. 
 
 undertaking, sections as to, 182. 
 
 undertaking by defendant arrested, on applying for adjournment, 175. 
 
 vacating order of, 179. 
 
 witness privileged from, 290, 291. 
 Assault, no jurisdiction in action for, 73. 
 
 negligence, railroad, recovery for, 76, 82. 
 Assignment and breach of bond may be united in the same complaint, 246. 
 Assistant clerk. (See Clerk.) 
 Association, action against, where brought, 121. 
 
 verification by, 271. 
 Attachment* 183-208. 
 
 action on undertaking on, 50. 
 
 action on undertaking where warrant is vacated, 200. 
 
 affidavit, requisite of, to obtain, 184-191, 196. 
 
 affidavit, additional, on, 202. 
 
 affidavit, counter, 204. 
 
 affidavit, insufficiency of, 203. 
 
 affidavit, amount due must be specified in, 184. 
 
 amendment of undertaking on, 207. 
 
 amendment of warrant of, 192. 
 
 amount due, must be shown by facts and stated in affidavit, 184. 
 
 bond, when insufficient on, 199. 
 
 can be allowed before service of summons, 186. 
 
 cause of action, 203. 
 
 certificate of defendant's interest to be furnished, 196. 
 
 person refusing certificate may be examined, 196. 
 
 complaint, 204. 
 
 for contempt, warrant for, recital in warrant, 99. 
 
 copy papers served, 204. 
 
 counter affidavits, 204. 
 
 effect of vacating warrant, 206. 
 
 erroneous, no ground to vacate proper judgment, 204. 
 
 execution of warrant of, how served, 193, 198, 397. 
 
 expenses and counsel fees, 200. 
 
 fictitious name, 204. 
 
 fictitious name, cannot be granted on, 183. 
 
 intent, 204. 
 
 irregularities, 204. 
 
 judgment on bond, on, 200. 
 
 judgment where property has been attached, 206.
 
 548 Index. 
 
 Attachment, jurisdiction to issue or vacate warrant of, 78. 
 
 jurisdiction depends on service of summons, 206. 
 
 mailing of summons without posting copies on door of defendant's resi- 
 dence, no jurisdiction is acquired, 82. 
 
 levied, under warrant of, 194. 
 
 marshal may maintain action on, 197. 
 
 merits of action, 204. 
 
 mistakes, omissions, defects and irregularities, respecting affidavits, bonds, 
 and undertakings, 51, 91, 171, 193, 207, 331, 409. 
 
 mistake in warrant of, 205. 
 
 motion to vacate, when may be made, 202, 203, 205. 
 
 nonresident, 205. 
 
 not a matter of right, 184. 
 
 objections to sufficiency of the bond, etc., when to be taken, 201. 
 
 original papers, 205. 
 
 personal service of process attaching vessel, 207. 
 
 pleadings as to sufficiency of affidavits, 205. 
 
 property, incapable of manual delivery, how to be taken, 195. 
 
 when not sufficient property, 195. 
 
 when discharged, property to be returned to defendant, 197. 
 
 provisional remedy, 200. 
 
 return by marshal on, 201. 
 
 return, insufficient, 201. 
 
 return, sufficient, 201. 
 
 subsequent attaching creditors, 206. 
 
 second application, for, 195, 205. 
 
 sections applicable to undertaking, 207. 
 
 service of summons, and warrant of, on defendant, 193, 194, 198, 397. 
 
 summons, not with papers, 206. 
 
 third person, claim by, bond, and delivery thereupon, 199. 
 
 undertaking on, 192. 
 
 undertaking, amendment of, 192, 193. 
 
 undertaking on, by defendant, 198. 
 
 undertaking, to discharge, 199. 
 
 undertaking, sections applicable to, 207. 
 
 undertaking, by third party, effect of, 199. 
 
 vacating, or modifying warrant of, 202, 203. 
 
 vacating, effect of, 206. 
 
 vessel, personal service on, of, 207. 
 
 warrant of, 192. 
 
 ■warrant, contents of, 191. 
 
 warrant, what must be shown to procure, 184. 
 
 warrant, when, may be granted, 183. 
 
 where, of, may be served, etc., 193, 194, 198, 397. 
 Attendant, to be appointed by justice, 376. (See Janitor.) 
 
 may be removed by justice for cause, 376.
 
 I^DEX. 54<> 
 
 Attendant, definition of "term," 377. 
 
 period of- appointment of, 376. 
 
 salary of, 37G. 
 
 janitor, not an officer, 378. 
 
 rules relative to, adopted by the board of justices, 111, 382. 
 
 not to practice, 146. 
 Attorney, agreement as to compensation of, 147. 
 
 agreement, cannot be deprived of his, on the trial, 323. 
 
 agreement, in poor person case, 155. 
 
 appearance by, 41, 145. 
 
 appearance by, does not confer jurisdiction, 130. 
 
 authority of, to appear, 145, 146. 
 
 authority, to settle, 148. 
 
 assignment, in poor person case, 157. 
 
 cannot be sureties or become bail, 148, 223, 224. 
 
 cannot recover for useless work, 43. 
 
 contempt by, may be punished civilly, 97. 
 
 contempt, privilege of, from, 99. 
 
 contempt, writing letter to judge scandalizing his decision, not crim- 
 inal, 99. 
 
 contempt, interrupting trial, 99. 
 
 costs, belong to the, 437, 442. 
 
 death or disability of, 147. 
 
 duty to act as guardian of infant defendant, 148, 151. 
 
 engagement of, not excuse for not urging appeal, 421. 
 
 fraud of clerk of, 148. 
 
 inexperience or negligence of, 148. 
 
 justice may act as, in his own case, 13. 
 
 lien of, 148. 
 
 lien, notice of, not necessary, 149. 
 
 lien, enforcement of, 149. 
 
 lien, party may settle notwithstanding, 149. 
 
 lien, no jurisdiction to enforce, 82, 86. 
 
 may serve summons, 137. 
 
 must have filed verified pleading or written notice of appearance, to 
 recover costs, 437. 
 
 none but, to practice in New York city, 146. 
 
 penalty for violation, 146. 
 
 not to disclose communications, 323. 
 
 not to lend his name, 147. 
 
 privileged from arrest, 148, 182. 
 
 punishment for deceit, 147. 
 
 punishment for willful delay of action, 147. 
 
 reading to jury from paper not in evidence, good ground for reversal, 326. 
 
 service of summons upon defendants, 84, 249. 
 
 service of summons on attorney, not followed by appearance, does not con- 
 fer jurisdiction, 130.
 
 550 Index. 
 
 Attorney, services to wife, husband liable for, 46. 
 settlement of ease on appeal, practice, 416. 
 value of services of, 149. 
 verification by, 270, 271. 
 
 when judgment obtained by party not an, void, 341. 
 when not allowed fees, as a witness, when, 455. 
 
 Bail. (See Deposit; Sureties.) 
 Bailee, liability of, 43, 165. 
 
 liability of, to arrest, when, 165. 
 
 lien of, 63. 
 
 and bailor, tender in replevin action, 209. 
 Bailment, lien, 63. 
 
 Bankruptcy, trustee in, may bring action of replevin, 59. 
 Bastardy, etc., bonds, costs in actions upon, 446. 
 
 damages in actions upon, 277. 
 
 judgment in actions upon, 277. 
 
 jurisdiction in actions upon, 54. 
 
 jurisdiction, has it been conferred, 54. 
 
 jury trial in action upon, 54. 
 
 pleadings in action upon, 277. 
 Battery, assault and, no jurisdiction in action to recover, 73. 
 
 assault, negligence of railroad, recovery for, 76, 82. 
 Benefit Society, complaint upon certificate of, 251. 
 Bills and Notes, cimplaint in action upon, 251. 
 Bill of Particulars. (See also Accounts.) 
 
 court may order written, 241, 242, 243. 
 
 may be amended, 243. 
 
 conversion of personal property, 243. 
 
 effect of, 244. 
 
 form of, 244. 
 
 knowledge as to items, 244. 
 
 noncompliance, order should be made. 244. 
 
 object of, 244. 
 
 of special contract will not be granted, 244. 
 
 variance between proof and, 244. 
 
 when objection to, as evidence, available on the trial, 324. 
 Board of health, and answer of title, 278. 
 
 of justices, duties of, etc., 107. 
 
 to make rules, 108. 
 
 concurrence of majority necessary to adopt resolution of, 111. 
 
 of aldermen, duty of as to courthouse, 117. 
 Boarding-house keeper, who is, 64. 
 
 lien, conversion, judgment, 10, 44. 
 
 lien, when arrest will lie, 165. 
 
 lien, extent and limit of, 64.
 
 Index. 551 
 
 Boarding-house keeper, wife's wearing apparel, 64. 
 
 action to enforce, 239. 
 Bond. (See also Undertaking.) 
 
 abandonment, jurisdiction in action upon, 54. 
 
 abandonment, has jurisdiction been conferred?, 54. 
 
 conditioned for the payment of, action upon, 48. 
 
 action upon, may be brought for each installment, 48. 
 
 bastardy and abandonment, jurisdiction in action upon, 54. 
 
 bastardy, has jurisdiction been conferred?, 54. 
 
 bastardy, jury trial in action on, 314. 
 
 bastardy, pleadings in action upon, 277. 
 
 new summons in action on bastardy, 129. 
 
 breach of, and assignment may be united in same complaint, 246. 
 
 constable, action on, for seizing exempt property, 51. 
 
 difference between undertaking and, 53. 
 
 of marshal, jurisdiction in action upon, 55. 
 
 of marshal, jury trial in action upon, 55. 
 
 mistakes, omissions, defects, and irregularities in, 52, 91, 171, 193, 331, 409. 
 
 specific breaches, complaint, 252. 
 
 surety, action upon, 49. 
 
 synonymous with undertaking, 53. 
 Boundaries and boroughs, 2, 3. 
 
 division into boroughs, 3. 
 
 names of justices, clerks, court officials, and marshals, with their resi- 
 dences, days, places of holding courts, and telephone number, xii. 
 
 of the Bronx, districts in, 16-18. 
 
 of Manhattan, districts in, 18-26. 
 
 of Brooklyn, districts in, 26-37. 
 
 of Queens, districts in, 37, 38. 
 
 of Richmond, districts in, 38. 
 Books, inspection of, 289. 
 
 corporation, how produced, 289. 
 Boroughs. (See Boundaries). 
 
 Brief of counsel, no disbursements allowed for, 452. 
 Brokers' commissions on sales and loan of real property, 43. 
 Bronx, borough of. Names of the justices, clerks, court officials, and mar- 
 shals, with their residences, days, places of holding court, and telephone 
 number, xxv. 
 districts in the borough of The, 16-18. 
 
 removal of action to City Court, 87. 
 
 First District, appeal from this court in, to be brought before Appellate 
 Division, Second Judicial Department, 401. 
 Brooklyn, borough of, appeal as to, 401, 405. 
 
 names of justices, clerks, court officials, and marshals, with their residences, 
 places of holding court, and telephone number, xxx. 
 
 districts in the borough of, 26-37. 
 Building Code, jurisdiction of, action to recover penalties for violation of, 56.
 
 552 Index. 
 
 Carrier, when liable for conversion, 44. 
 Case, settlement of, on appeal, 416. 
 Causes of action on attachment, 203. 
 
 complaint does not st..te facts sufficient to constitute a ; demurrer, 268. 
 
 improperly united; demurrer, 268. 
 
 must affect all parties, 248. 
 
 to be separately stated and numbered, 245, 252. 
 
 what, may be joined in same complaint, 245. 
 Certificate of defendant's interest on attached property to be furnished, 196. 
 
 person refusing, in such case, to be examined, 196. 
 
 certified copy of paper on file in clerk's office evidence, 324. 
 
 of copies, et cetera, form of, 324. 
 
 of execution of commission, 300. 
 
 of execution of commission a sufficient return, 300. 
 
 of fine of jurors to be sent to commissioner of jurors, 381. 
 
 of search for records, penalty, et cetera, 382. 
 
 of notary, how proven, 333. 
 
 official, is evidence, 334. 
 
 when, of public officer is evidence, 335. 
 
 penalty of physician for giving false, to juror, 318. 
 Charter, sections repealed, 467. 
 
 sections preserved, 480. 
 Chattel. (See also Replevin.) 
 
 action to recover a, 209-211. 
 
 action to recover a, when it lies, 59. 
 
 claim of title by third person to, 398. 
 
 complaint in action to recover, 210, 225. 
 
 complaint in action when chattel injured in replevin, 230. 
 
 concealment of, ground for arrest, 176. 
 
 conditional sale, 59. 
 
 custody and control of, 60. 
 
 damages in action to recover, 60, 252. 
 
 damages when, injured, et cetera, by defendant, 229, 230. 
 
 and damages, complaint for, 252. 
 
 exception to sureties may be served on marshal, 398. 
 
 execution, contents of, in action to recover a chattel, or in replevin, 367. 
 
 fraudulent acquisition and disposition of, 60. 
 
 interest in property, 60. 
 
 jurisdiction in action to recover a, 59. 
 
 jury of twelve, in trial of action to recover a, 318. 
 
 lien upon. (See Lien.) 
 
 mingling goods, 60. 
 
 no title to, 61. 
 
 possession of, 61. 
 
 promissory notes and checks, 61.
 
 Index. 553 
 
 Chattel, property accidentally destroyed, 61. 
 
 property out of the county, 62. 
 
 penalty for wrong delivery by marshal, 398. 
 
 requisition to replevy a, 398. 
 
 execution of same, 398. 
 
 return of, in replevin, 222. 
 
 return of, to requisition, 398. 
 
 sheriff, action against, for wrongful seizure of, 62. 
 
 sureties may continue action to recover, 62. 
 
 tenants in common of, action by, to recover, 62. 
 
 trustee in bankruptcy may bring action, 59. 
 
 undertaking, action on the, to recover a, 398. 
 
 value, special interest in, 62. 
 
 wife's property, 62, 64. 
 Chattel mortgage, when no action can be brought on, 85. 
 Check, conversion of, 44. 
 
 replevin for, 61. 
 
 drawn without funds to meet it, fraud, 71. 
 
 deposit withdrawn, fraud, 71. 
 Child, right of parent of, to bring action for wages of, 151. 
 City clerk, bond of marshal to be delivered to and filed by, 390. 
 
 duty of, on such bond, 390. 
 
 transcript of judgment against marshal to be filed with. 394. 
 fee therefor, 394. 
 
 to report canceled bond to mayor, renewal of bond, 395. 
 City of New York, action by, for violation of corporation ordinance, 120. 
 
 action, by or against, how brought, 121. 
 
 boundaries, boroughs, powers, rights, and obligations, 2, 3. 
 
 borough of, divided into districts, 16. 
 
 charter, short title of, 2. 
 
 corporations consolidated, territories, 2. 
 
 corporations, commissioner of docks to prosecute, to recover penalties in 
 the name of the, 56. 
 
 corporation counsel may issue summons in his own name, in actions by 
 the, 127. 
 
 corporation counsel has charge, et cetera, of all actions in behalf of the, 128. 
 
 division of, into boroughs, 5. 
 
 fees, property of, 453. 
 
 jurisdiction in actions against, 80. 
 
 name, power, and rights of the corporation seal, 5. 
 
 none but attorneys to practice in, 146. 
 
 process may be served anywhere, in any part of, ID5, 396, 397. 
 
 seal of, 5. 
 City Court of the city of New York, removal of action to, 87. 
 Civil contempt, how punishable, 97, 99. 
 
 distinction between civil and criminal contempt, 99.
 
 554 Index. 
 
 Claim and Delivery. (See Replevin.) 
 
 of title by third person for replevin, 226. 
 
 of title by third person for replevin, proceedings of marshal on, 226. 227. 
 of title by third person, action against marshal on, 227. 
 Clergyman not to disclose confession, 325. 
 Clerk of appellate court to return to this court all papers on appeal, remittitur. 
 
 421. 
 of attorney prohibited from being bail, or surety, 223. 
 of this court, appointment of, and assistant, 374-377. 
 of this court must reside in district, borough, 375. 
 of this court not to hold any other office, 375. 
 assistant clerk can hold two offices simultaneously, 377. 
 of this court, member of assembly may be appointed, 378. 
 of this court must file bond in office of comptroller, 374. 
 of this court not an officer of the city government, 378. 
 of this court, term of office of, 374, 378. 
 of this court, tenure of office of, 378. 
 cf this court, definition of the word, 377. 
 of this court, includes assistant clerk, 381. 
 of this court, no second assistant clerk, 377. 
 of this court not to practice, 146. 
 of this court, certified copies of papers on file in his office, evidence, 
 
 113, 385. 
 of this court, certificate of fine of jurors to be sent to commissioner of 
 
 jurors, by, 381. 
 of this court to give certificate when judgment and execution satisfied, 373. 
 of this court, when papers on file in office of, evidence, 324. 
 of this court, duties of the, 380, 381. 
 of this court, duties are ministerial, 381. 
 
 of this court, duties of the, and assistant clerks to administer oatli3, 379. 
 of this court, duties of the, where employee is a party, 154. 
 of this court, duties of, in an action to recover a chattel, as to jury ot 
 
 twelve, 319. 
 of this court, duties of, as to ballots of jurors summoned, but not sworn, 
 
 320. 
 of this court, duties of, in keeping and paying out money, et cetera, 378. 
 of this court, duties of, in summary proceedings, 382. 
 of this court, must indorse summons in action where execution may issue 
 
 against the person, 382, 383. 
 of this court, duties of, on taxation of costs, 449. 
 of this court, must tax cos.ts on appeal, 402, 450. 
 of this court, must deliver papers to clerk of court to which action is 
 
 removed, 87. 
 of this court, must receive deposit of amount of judgment on opening of 
 
 default, 355. 
 of this court, must certify undertaking on appeal, 411.
 
 Index. 555 
 
 Clerk, of this court, must make return on appeal, 411. 
 
 of this court, to notify attorney of settlement of case on appeal, 41G. 
 of this court, must keep a docket, 384. 
 
 docket, what to contain, 383, 384. 
 of this court, no power to enter judgment in, when, 384. 
 of this court, entries in docket, how to be made, 384. 
 of this court, must keep an index to his docket, 385. 
 of this court, docket and papers to be delivered to his successor, 385. 
 of this court, receipt of commission by, return of commission by, 304. 
 of this court, to open and file commission on its return, 296 
 of this court, to keep his office open, when, 114. 
 of this court, Saturday afternoon, closing of office, 115. 
 of this court, to search files, to certify, et cetera, 325. 
 of this court, to file papers received on submission of controversy upon 
 
 facts admitted, 339. 
 of this court, must issue execution, 357. 
 of this court, successor of, may issue execution on former unsatisfied 
 
 docket, 385. 
 of this court, execution against joint debtors, where all not served, duty 
 
 of, to indorse on summons name of each defendant not summoned, 362. 
 of this court, to subscribe renewal of execution, 368. 
 of this court, execution in favor of wage-earner, clerk to issue execution 
 
 against person in such case, et cetera, 368. 
 of this court, extortion of, penalty for, 382. 
 of this court, fees, provisions of law as to, 383. 
 of this court, generally, 379, 461. 
 of this court, fees payable to, 381, 452, 461. 
 fees, tabulated statement of, 381, 383, 461. 
 of this court, no service by, until fees, paid, 382. 
 of this court, to collect and account for fees, 382, 383. 
 of this court, general provision as to fees to be accounted for, 382. 
 of this court, jury fees to be paid to, 314. 
 of this court, must draw jury from undrawn jury box, 314. 
 of this court, list of trial jurors to be furnished to, 317. 
 of this court, must transmit to commissioner of jurors certificate of fine 
 
 imposed on juror for nonattendance when summoned, 318. 
 of this court, prospective charges and fees, 449. 
 
 of this court, fees are the same whether amount over or under $50, 452. 
 of this court, trial fee now $1 in all cases for placing cause on calendar, 
 
 453. 
 of this court, taking fees for services not rendered or prescribed by law 
 
 prohibited, 382. 
 of this court, may charge fee for oath, postage, et cetera, 379. 
 of this court, no fees to his own use, 453. 
 of this court, mandamus of, 381. 
 of this court, neglect of duty, carelessness of, 380.
 
 556 Index. 
 
 Clerk, of this court, notice of appeal to be served on, 404. 
 
 of this court, office may be closed on Saturday, when, 382. 
 
 of this court, penalty for extortion, 382. 
 
 of this court, removal of, how removed, 375, 379, 380. 
 
 of this court, removal of, charges and hearing on, 380. 
 
 of this court, rules relative to, 111, 382. 
 
 of this court, salary of, 375. 
 
 of this court, salary of, not to receive any fees or compensation other 
 
 than, 375. 
 of this court, may charge fee paid for oath, postage, et cetera, 379. 
 of this court, no fee for administering certain oaths, 379. 
 of this court, no fee to his own use, 453. 
 of this court, term of, 374, 378. 
 of this court, to issue transcript, 358. 
 
 of this court, not to issue transcript, while execution not returned, 357. 
 of this court, must enter in transcript of judgment where defendant 
 
 liable to arrest, the words, " defendant liable to execution against his 
 
 person," 344, 382. 
 of this court, certification of transcript by, when evidence, et cetera, 113, 
 
 385. 
 of this court, trial fee cannot be recovered back from the, 448. 
 of this court, undertaking on appeal to be delivered to, 410. 
 Clerks of this corrt, names of, with their residences, xxv. 
 Code of Civil Procedure, applies to this court, 117. 
 
 action to recover fine, et cetera, for violation of Sanitary Code, 120. 
 building, costs, 440. 
 sections of the, not applicable, 466. 
 sections repealed, 473. 
 Commission to take testimony, 295-304. (See also Deposition.) 
 affidavit for, 297. 
 
 affidavit, authority to be strictly followed, 296. 
 granting of, when and how, 296, 297. 
 should be applied for promptly, 297. 
 adjournment, when granted, 297, 298. 
 amendment of, 290. 
 amendment of, return of, 301. 
 certificate of execution, 300. 
 certificate, sufficient return, 300. 
 clerk, receipt of, by, 304. 
 clerk, to open and file on return of, 296. 
 on consent, 296. 
 counsel at execution, 299. 
 delay in return of, 299. 
 deposition, et cetera, evidence, 302. 
 direction from plaintiff to witness, 301. 
 discretionary, 297.
 
 Index. 557 
 
 Commission to take testimony, executed and returned, how, 208, 299. 
 
 evidence, et cetera, 302. 
 
 interrogatory, general, 302. 
 
 interpleader, 283, 297. 
 
 irresponsive answer, 303. 
 
 leading questions, 303. 
 
 letter for identification, 301. 
 
 mistake of name of witness, 301. 
 
 notice of application for, 296, 297. 
 
 objections to evidence, 302, 303. 
 
 oral questions, 296. 
 
 order suppressing, 302, 303, 326. 
 
 papers annexed, 299. 
 
 power of commissioners, 303. 
 
 process, regarded as, amendable, 296. 
 
 return of, amending, 301. 
 
 second, 302. 
 
 security for costs as a condition of allowing, 297. 
 
 subpoena to witness within the State, 106. 
 
 suppression of, when deposition may be, 301, 326. 
 
 seal, 296. 
 
 witness, in the city, 298. 
 
 witness, competency of, 302. 
 
 witness, impeaching, 302. 
 
 witness, knowledge of, 303. 
 
 witness, materiality of, 303. 
 
 witness, mistake in name of, 301. 
 
 witness, in prison, 306. 
 
 witness, subpcena to, within the State, 106. 
 Commission on revision, report of, xix. 
 
 Commissioner of docks to prosecute to recover penalties in the name of the 
 city, 56. 
 
 fire, no fees or costs in action to recover, penalty, 440, 453. 
 Commissioners of sinking fund, to provide place for holding court, 114. 
 
 fire, action to recover penalty, et cetera, by, 120. 
 Complaint. (See also Pleadings.) 
 
 account or instrument for the payment of money only, 251. 
 
 account stated, 251. 
 
 affidavit to obtain order of, may be used as, 170. 
 
 on attachment, 204. 
 
 bad answer good enough for bad, 269. 
 
 bills and notes, 251, 252. 
 
 benefit society, 252. 
 
 bond, 252. 
 
 causes of action to be separately stated and numbered, 245. 
 
 causes of action, what may be joined in the same, 245, 247, 248.
 
 558 Index. 
 
 Complaint, causes of action, what administratrix and individually may unite 
 in same, 246. 
 contract and tort may be united in same, 246, 343. 
 conversion and freight may be united in same, 246. 
 money lent and fraud may be united in same, 246. 
 parties affected alike may be united in same, 246, 248. 
 promissory note and collateral may be united in same, 246. 
 several breaches may be united in same, 246. 
 
 personal injuries and injury to property may be united in same, 246. 
 injury to personal property and fraud may be united in same, 246. 
 negligence and conversion may be united in same, 247. 
 chattels with or without damages may be united in same, 247. 
 claims against a trustee may be united in same, 247. 
 claims arising out of same transaction may be united in same, 247. 
 penalties by statute or ordinance may be united in same, 247. 
 what must appear on face of, to unite causes of action, 247. 
 chattel and damages, 252. 
 conclusions of law not to be pleaded, 252. 
 construing, 253. 
 
 contract, performance, conditions precedent, how pleaded, 253. 
 contract, damages, wages, 342. 
 and tort, 246, 343. 
 corporation, by or against, 276. 
 custom of trade, 253. 
 demand for relief, 253. 
 demurrer to, 268, 269. 
 dismissal of, 341, 342. 
 dismissal of, in replevin, 233. 
 facts, not fictions, must be pleaded, 253, 254. 
 
 does not state facts sufficient to constitute a cause of action, de- 
 murrer, 268. 
 forms of, 254. 
 
 framing, deposition for, 304. 
 fraud, 254. 
 
 hypothetical, or alternative, not allowed, 253. 
 infant, 254. 
 
 judgment, how pleaded, 253. 
 landlord against tenant, 253. 
 master and servant, 254. 
 mechanics' lien action, 255. 
 medical expenses, 255. 
 money loaned, 255. 
 money loaned and fraud, 246. 
 money had and received, 255. 
 necessaries furnished wife, 255. 
 necessaries of infant, 255.
 
 Index. 559 
 
 Complaint, partners, firm name, 255. 
 performance of contract, 255. 
 private statute, 256. 
 replevin, 210, 215, 233, 256. 
 representative capacity, 256. 
 special damages, 246. 
 time essence of contract, 256. 
 tort and contract, 343. 
 use and occupation, 256. 
 
 verified, not having been served, plaintiff cannot take judgment by de- 
 fault without proving case, 327. 
 waiver of certificate of architect to be pleaded, 256. 
 wnat it must state, 251. 
 what must be specially alleged, 256, 257. 
 Commitment, requisites of, 99. 
 
 summary for contempt, 104. 
 Conditions may be imposed on adjournment, 88. 
 
 precedent, how pleaded, 274. 
 Conditional sale. (See also Sale.) 
 
 agreement, no order of arrest to issue on such, 162. 
 reservations in contracts for sale of goods and chattels, 238. 
 vendor and vendee, 238. 
 Conditionally, deposition taking testimony, 304-311. 
 Conduct of trial. (See Trial.) 
 
 Confession of judgment, jurisdiction to render, 78. 
 appearance and consent is not, 79. 
 when invalid, 79. 
 Consent, appearance and. 79. 
 
 commission to take testimony on, 296. 
 deposition by, 306. 
 
 jurisdiction cannot be acquired by, 41. 
 jurisdiction to render judgment by, 78. 
 when presumed, 286. 
 Consideration, 258. 
 Conclusion of fact, what is, 258. 
 
 of law not to be pleaded, 252, 253. 
 Consolidation Act, sections repealed, 468. 
 note as to corrections, 479. 
 of actions on removal, 89. 
 Constitutionality of the Municipal Court, 7. 
 
 of statute of removal of action, 89. 
 Controversy, submission of, upon facts submitted, 42. 
 Construction (of this act), 466. 
 Contempt of court, criminal, 96, 326. 
 punishment for, 96, 326. 
 punishable civilly, 97, 103.
 
 560 Index. 
 
 Contempt of court, who may l>c punished civilly for, 97, 103. 
 
 in view of court, how punished, 96, 99, 103. 
 
 out of sight of the judge, 103. 
 
 distinction between civil and criminal, 99. 
 
 court may strike out answer for, 98. 
 
 if court has jurisdiction, adjudication final, 98. 
 
 court must issue mandate for, 100, 105. 
 
 false swearing and perjury is, 100, 103. 
 
 failure to pay money into court is, 102. 
 immaterial and irrelevant question, cannot be punished for, 105. 
 
 marshal, when deemed guilty of, 389. 
 
 error or mistake of marshal, 371. 
 
 order for, requisites of, et cetera, 102, 103, 105. 
 
 service of order for, failure to obey, 103. 
 
 order for, erroneously granted, no excuse for, 100. 
 
 party under subpoena not producing papers, is, 104. 
 
 stay of proceedings, disregard of, 103. 
 
 stenographer, when may be punished for, 103. 
 
 technical, what is a, 104. 
 
 warrant of attachment, need not recite the, 99. 
 
 witness or juror, refusal to be sworn, attend, or answer material ques- 
 tion, is a, 104. 
 Contract, authority of employee to make, 43. 
 
 breach of, 43. 
 
 complaint on, 253. 
 
 conditional sale, when no action can be brought on written, 85. 
 
 conditions precedent in, how pleaded, 274. 
 
 damages, measure of, in action for breach of, 45. 
 
 express and implied, complaint on, 253. 
 
 jurisdiction of action to recover damages for breach of, 42. 
 
 no jurisdiction to reform written, 86. 
 
 performance, 44, 255, 258. 
 
 performance, conditions precedent, how pleaded, 253, 258. 
 
 effect of refusal to perform, 43. 
 
 excusing performance, 44. 
 
 terms of, 48. 
 
 title, action to recover damages for breach of, to convey goods, 48. 
 
 and tort, amendment of complaint, 273. 
 Conversion, admission in answer of demand, 258. 
 
 agent liable for, 44. 
 
 authority for, 44. 
 
 arrest for, of property, 170. 
 
 bailee, liability of, for, 42. 
 
 bill of particulars will be ordered in action for, 243. 
 
 boarding-house keeper's lien, 10, 345. 
 
 boarding-house keeper's lien, action to enforce, 239. 
 
 boarding-house keeper's lien, judgment, 44.
 
 Index. 561 
 
 Conversion, of check, 44. 
 
 and contract cannot be counterclaim, 263. 
 damages and costs in action for, 345. 
 definition of, 44. 
 
 judgment for, what must be inserted in, 345. 
 pledgee, when liable for, 44. 
 purchasing stolen horse is, 45. 
 value, proof of, in action for, 45. 
 Copy papers served on attachment, 204. 
 
 defective, served no ground for vacating order of arrests, 178. 
 Corporation, admission by member of, on trial, 326. 
 books of, how produced, 289. 
 complaint in actions by or against, 276. 
 counsel, may issue summons in his own name, 127. 
 counsel, has charge, et cetera, of all actions, et cetera, in behalf of the 
 
 city of New York, 128. 
 defendant, in what district action to be. brought, 120. 
 foreign, book of, when evidence, 329. 
 jurisdiction against domestic or foreign, 80. 
 misnomer of, when waived, 277. 
 
 officer of domestic, how to obey sucpcena duces tecum, 291. 
 ordinance, violation of, where action to be brought, 120. 
 proof of corporate existence, when necessary, 276. 
 proof of corporate existence, when unnecessary, 326. 
 verification by, 270, 271. 
 waiver of corporate name, 258. 
 Costs and fees, 436-464. (See also Disbursements; Fees.) 
 on adjournment, 287, 444. 
 action to recover, in answer of title, 280. 
 affidavit respecting disbursements, 449. 
 amendment as condition of allowing, 272. 
 amendment of pleading, 444. 
 
 answer of title, to real property in question, 281, 446. 
 answer of title, action to recover costs, 280. 
 answer of title, dismissal of complaint, 445. 
 answer of title, discontinuance of action, 444. 
 answer of title, new action, 445. 
 
 answer of title, recovery under $50 in such action, 446. 
 on appeal, 437, 448. 
 on appeal, to whom, 450. 
 on appeal, on affirmance, must be given, 451. 
 on appeal, new trial, 451. 
 
 on appeal, when in discretion of the court, 400. 
 on appeal, clerk to tax costs on, 402, 450. 
 
 attorney must file verified pleading or written notice of appearance in 
 order to recover, 437, 442. 
 36
 
 562 Index. 
 
 Costs and fees, belong to attorney, 437, 442. 
 
 bastardy and abandonment bonds, in action upon, 446. 
 
 bond of marshal on prosecution of, 393, 457. 
 
 Building Code, in action for penalty for violation of, 440. 
 
 clerks' fees, 461. 
 
 default, opening, 354. 
 
 to defendant, 441, 442. 
 
 when defendant entitled to increased, 442. 
 
 on demurrer, 443. 
 
 disbursements, affidavit for, 449. 
 
 after discontinuance in answer of, 281. 
 
 employees' action, no fees, 453. 
 
 expert, 454. 
 
 disbursements for service of expert witness cannot be taxed, 454. 
 
 failure to pay, 287. 
 
 fees payable to clerk, 452. 
 
 fees, property of city, 453. 
 
 fees, on docket of judgment in county clerk's office, 454. 
 
 fees, jurors', 454, 461. 
 
 fees, summary proceedings, 458. 
 
 fees, witness, 454. 
 
 fire commissioner, to recover penalty, 440, 453. 
 
 former action, costs unpaid, stay, 438. 
 
 guardian ad litem, responsibility for, 438. 
 
 in health department action, 438. 
 
 increased, to defendant, when, 442. 
 
 interpleader, 283. 
 
 judgment, offset, 439. 
 
 jurisdiction, want of, when costs allowed, 438. 
 
 jurors' and jury fees, 454, 461. 
 
 keepers' fees, 457. 
 
 lien for, 438. 
 
 marshal's fees, 456, 463. 
 
 marshal's fees, taxation of, by court, 448. 
 
 marshal, not to bargain about his compensation, 457. 
 
 meaning of term, 438. 
 
 mechanics' lien action, 69, 439. 
 
 as to nurse, et cetera, 453. 
 
 offer by defendant, 445. 
 
 offer by defendant, if plaintiff fails, 250. 
 
 on opening default, 354. 
 
 parties, attorneys, when not allowed fees, 455. 
 
 party, when prevailing, to recover, 437. 
 
 party, appearing in person, entitled to, 438. 
 
 sums allowed to either party, to plaintiff, 440, 441. 
 
 when neither party to recover, 439.
 
 Index. 563 
 
 Costs and fees, poor person, in favor of, 159, 459. 
 
 liability for, in such case, 159. 
 
 security for, in such case, 156. 
 
 stay for nonpayment of, in such case, 159. 
 
 printing brief, disbursements for, not taxable, 452. 
 
 prospective charges and fees on docket in county clerk's office, 449. 
 
 on removal of action, 89. 
 
 security for, as condition for commission, 297. 
 
 security, when cannot be required on removal of action, 95. 
 
 section 121 has no bearing on the question of, 231. 
 
 stenographers' fees, 455. 
 
 stenographers' fees cannot be allowed for furnishing minutes of stenog- 
 rapher to justice, not taxable, 455. 
 
 summary proceedings, fees in, 458. 
 
 tabulated statement of costs and fees, 437-448, 449, 451, 453, 457, 458. 
 
 taxation of, 447. 
 
 review of taxation of, 448. 
 
 duty of clerk on taxation of, 449. 
 
 title to real property comes in question. (See Costs; Answer of Title, 
 etc., ante.) 
 
 trial fee cannot be recovered back from the clerk, 448. 
 
 witness' fees, 463. 
 
 defaulting witness, fees on warrant of attachment against, 457 
 
 workingman, 439. 
 
 in action by working-woman, 447. 
 Counsel, relationship of, 10. 
 
 at execution of commission, 299. 
 Counterclaim for affirmative relief, 264. 
 
 amount is in excess of court's jurisdiction, where, 266. 
 
 arrest, not ground to vacate order of, 177. 
 
 what causes of action may be united in, 247. 
 
 conversion and contract, 263. 
 
 denned, 262. 
 
 demurrer to, not necessary, 266. 
 
 dismissal of action, when justice should have dismissed action, 342. 
 
 equal or unequal, when, 340. 
 
 executor or administrator, when plaintiff is, 265. 
 
 incapacity, 263. 
 
 judgment, when demand or, are equal or unequal, 264. 
 
 partnership, 263. 
 
 reply to, not necessary, 269. 
 
 representative capacity, when defendant is sued in, 265. 
 
 rules respecting the allowance of, 263. 
 
 Statute of Limitations, 263. 
 
 summary proceedings, 263.
 
 56-i Index. 
 
 County clerk must enter in docket in judgment where defendant liable to 
 arrest, the words, " defendant liable to execution against his person," 
 where such transcript filed with him, 344. 
 
 when may issue execution, 357. 
 
 duty of, on filing transcript, 358. 
 
 duty of, on judgment docketed against joint debtors, where all not served, 
 362. 
 
 docketing judgment in another county, duty of, 364. 
 
 to issue transcript of judgment against marshal, 394. 
 
 prospective charges and fees, 449. 
 
 fees of, on docket of judgment, 454. 
 County Court, removal of action to, when, 87. 
 Court. (See also Judge; Justice; Municipal Court.) 
 
 adjournment, may impose costs as condition for, 437. 
 
 amendment may impose costs as condition for, or adjournment, 437. 
 
 appellate, power of, on appeal, 400, 401. 
 
 appellate, may compel justice to settle case when out of office, 417. 
 
 appellate, when justice dead, remedy by, 417. 
 
 appellate, clerk of, to return to this court all papers on appeal, 421. 
 
 appellate, remittitur from, 421. 
 
 bond of marshal may be prosecuted, in what, 393. 
 
 contempt of, criminal, 96. 
 
 contempt, in view of, how punished, 96. 
 
 keeping it open for return of attachment, 100, 115. 
 
 must issue mandate for contempt, 100, 105. 
 
 days, places of holding, and telephone number, xxv. 
 
 keeping open, 10. 
 
 decision, has fourteen days in which to render judgment, 311. 
 
 when defendant under arrest, must decide immediately, 311. 
 
 after time limited for decision, 312. 
 
 consent to decide after time limited, 312. 
 
 failure to decide, 312. 
 
 stipulation that, may have further time to decide, 317. 
 
 default, may open, 347. 
 
 default, affidavit of merits necessary, 348. 
 
 default, conditions upon opening, 354. 
 
 further hearing, when no power to open case for, 324. 
 
 guardian ad Utem, must appoint, 149. 
 
 holding, by whom held, 112. 
 
 holding, where held, 114. 
 
 holding in case of pestilence, war, et cetera, 115. 
 
 judgment according to justice of case must be rendered by, et cetera, 421. 
 
 juror summoned, who fails to attend, fine, 317. 
 
 jury trial, 316. 
 
 jury trial, within what time, may be directed by, 316. 
 
 justice to have access to, et cetera, of courthouse, 117.
 
 Index. 565 
 
 Court, justice dead, remedy on appeal, when. 417. 
 
 when, may direct jury trial, and within what time, 316. 
 
 when, has functions of a jury, when both parties request verdict, 328. 
 
 leave to appeal to the Appellate Division of the Supreme, 432. 
 
 leave to appeal to the Court of Appeals, 433. 
 
 mandamus of, 312. 
 
 Municipal, of the city of New York, 5 
 
 Municipal, constitutionality of, 7. 
 
 Municipal, created, 6. 
 
 Municipal, not a new, 7. 
 
 Municipal, sessions to be held in each district, 16. 
 
 new trial, may grant or deny motion for new trial on ground of fraud 
 or newly-discovered evidence, 354. 
 
 officials, names of, and their residences, xxv. 
 
 power of, limited, 42. 
 
 when no power to open case for further hearing, 324. 
 
 referee, no power to appoint, or order payment of referee's fees, 355. 
 
 retrial, 313. 
 
 Saturday afternoon, closing of, 115. 
 
 sittings of, to be public, 116. 
 
 Sunday, not to be open on, 116. 
 
 if last day fall on Sunday, judgment must be given on previous day, 313. 
 
 stay of proceedings may be granted, 354. 
 
 setting off costs, duty of, recovery on appeal, 420. 
 
 to tax marshal's fees for expenses in taking care of replevied property, 
 448. 
 
 verdict, may direct, 70, 71. 
 
 verdict, when may direct, 346, 347. 
 
 verdict, has power to set aside, and grant new trial, 354. 
 Courts abolished, 6. 
 Creditors, subsequent attaching, 206. 
 Crime, conviction of, not to exclude witness, 327. 
 Criminal, contempt of court, 96. 
 
 contempt of court, how punished, 96. 
 
 contempt, punishment for, 96. 
 
 contempt, in view of court, 96. 
 
 distinction between civil and criminal contempte, 99. 
 
 conversation, no jurisdiction in action for, 73. 
 Custom of trade must be pleaded, 253. 
 
 Damages, abuse of horse, action for, 74. 
 consequential, 82. 
 
 injury to property, action to recover, 73. 
 measure of, in action for breach of contract, 46. 
 for detention of machines, 230. 
 value of property in replevin, 60.
 
 566 Index. 
 
 Damages, mitigation of, pleading, 260. 
 
 for personal injuries, action to recover, 73. 
 
 how ascertained on default and replevin, 231. 
 
 for detaining chattel, action to recover, 211, 230. 
 
 when chattel injure!, et cetera, by defendant, 229. 
 
 to be fixed by judgment, on verdict in replevin, 230. 
 
 in actions upon bastardy and abandonment bonds, 277. 
 
 special, not a separate cause of action, 246. 
 
 special, must be alleged, 256, 257. 
 Date, in verification, 271. 
 Day, return of summons, 139. 
 
 mode of computing, 140. 
 
 night-time, 140. 
 
 law takes notice of fractions of, when there are conflicting rights, 358. 
 Death or removal of justice not to impair proceedings, et cetera, 113. 
 
 appeal, where adverse party has died, 408. 
 
 proceedings on appeal, in case of, 408. 
 Debtors. (See Joint Debtors.) 
 Decedent's debts, no jurisdiction in action for, quaere, 45. 
 
 no jurisdiction in action to charge next of kin, 83. 
 Deceit, jurisdiction in action for, 71. (See Fraud.) 
 
 when action lies, 71. 
 
 judgment upon written complaint in action for, 249. 
 Decision of justice not in time, 82, 84. (See Justice.) 
 
 when justice to render, 311. 
 
 or judgment, or verdict in replevin, what to state, 230, 231. 
 Default, 347-352. 
 
 in answer does not preclude motion to vacate order of arrest, 177. 
 
 judgment by, verified complaint must be served, or plaintiff must prove 
 his case, before, can be taken, 327. 
 
 judgment by, 344. 
 
 jurisdiction to open a, 81. 
 
 court may open, and impose conditions, 347, 354, 451. 
 
 affidavit of merits necessary, 348. 
 
 appeal from order opening, remedy, 348, 402. 
 
 appeal lies from judgment entered on, 402. 
 
 what is a, 349. 
 
 discretionary, 349. 
 
 denial of motion, with leave to renew remedy, 349. 
 
 damages, how ascertained in replevin, 231. 
 
 dishonest defenses, et cetera, 349. 
 
 usury, et cetera, 349. 
 
 technical objections, 349. 
 
 good faith, doubtful defense, 350. 
 
 excuse for opening, 350. 
 
 sufficient excuse, 350.
 
 Index. 507 
 
 Default, statute is remedial, 352. 
 
 insufficient excuse, 331. 
 
 laches, 351. 
 
 not matter of right, 352. 
 
 poor person, 352. 
 
 summons not personally served, remedy, 352, 406. 
 
 writ of prohibition will not lie to prevent judge from opening, 352. 
 Defects, mistakes, et cetera, in affidavits, bonds, and undertakings, 52, 91, 
 
 171, 193, 207, 212, 223, 331, 409. 
 Defect of parties, 259. 
 
 Defective undertaking, remedy for, after removal, 94. 
 Defendant, in what district action must be brought against, 119. 
 
 when allowed to defend in substituted service cases, 136. 
 
 who may be made a party, 152. 
 
 department of health, 153. 
 
 jointly liable, 153. 
 
 where an employer is a party, 154. 
 
 when, may defend as a poor person, 157. 
 
 on his arrest must remain in jail, until final judgment, unless bail is 
 given or deposit made, 174. 
 
 property taken on discharged attachment to be restored to, 197. 
 
 service of summons, and warrant of attachment on, by marshal, 198. 
 
 undertaking by, on attachment, 198. 
 
 cannot be arrested, nor property sold on execution, after twenty days 
 from issue, or renewal of execution, 370. 
 
 costs, when allowed to the, 440, 441. 
 
 when entitled to increased costs, 443. 
 
 must unite in application for removal of action, 87. 
 
 proceedings where they fail to unite, 87. 
 
 when to except to sureties in replevin, proceedings thereupon, 221. 
 
 may reclaim chattels in replevin, proceedings thereupon, 222. 
 
 may demand judgment for return of chattel in replevin, 228. 
 
 may offer to allow judgment or compromise, 250. 
 Defenses. (See Answer.) 
 Definition, annulled, 200. 
 
 appearance, 144. 
 
 attendant, 377. 
 
 attorney, 465. 
 
 causes, 323. 
 
 clerk, 377, 465. 
 
 conversion, 44. 
 
 corporation, 465. 
 
 costs, 438. 
 
 counterclaim, 262. 
 
 definitions, 465.
 
 568 Index. 
 
 < < 
 
 Definition, discretion, 402. 
 
 district, 224, 465. 
 
 householder, 224. 
 
 injury to property, 74. ."" 
 
 judicial notice, 330. 
 
 jurisdiction, 41. 
 
 mark, 465. 
 
 mandate, 100, 397, 398. 
 
 marshal, 389, 465. 
 
 oath, 465. 
 
 person, 465. 
 
 perjury, 318. 
 
 signature, 465. 
 
 subscription, 465. 
 
 writing, 338, 465. 
 Demand of transfer of action, 120. 
 
 when, to be made for jury trial, 314. 
 
 in replevin action, 213, 214. 
 
 for relief in complaint, 253. 
 Demurrer, 266-269. 
 
 amendment must be premitted on, 273. 
 
 costs on, 443. 
 
 extending time to demur, 241. 
 
 form, 269. 
 
 when disallowed, court must grant leave to plead, 241, 242. 
 
 well found, court must permit pleading to be amended, 242. 
 
 grounds for, 266, 267. 
 
 incapacity to sue, 263. 
 
 joint, 267. 
 
 when defendant may demur, 266, 267. 
 
 and answer, 266. 
 
 part, 267. 
 
 several defenses, 267. 
 
 test of, 268. 
 
 to complaint must specify grounds of objection, 268. 
 
 to all or part of complaint, 268. 
 
 to counterclaim, not necessary, 269. 
 
 when plaintiff may demur to, 269. 
 
 bad complaint, 269. 
 
 to separate paragraph, 268. 
 Denial in answer, form of, 259. 
 
 general, 259, 260. 
 Department of health, action for and penalties, 57. (See Health Department.) 
 Deposit of amount of offer, to allow judgment with clerk, 250. (See Bail.) 
 Deposition, 304-311. (See Commission.) 
 
 where it may be suppressed, 301.
 
 Index. 569 
 
 Deposition, where it may be taken, 106. 
 
 et cetera, evidence, 302. 
 
 order suppressing, 302, 303. 
 
 to take testimony conditionally, 304. 
 
 effect of, 310. 
 
 framing complaint, 304. 
 
 affidavit on application for, 305, 308. 
 
 by consent, 306. 
 
 objections to, when to be taken, 310. 
 
 order for examination, 306, 307. 
 
 oral examination, 310. 
 
 vacating order for examination, 307. 
 
 punishment for disobeying order, 307. 
 
 witness' fees on, 307. 
 
 waiver of irregularities, 310. 
 
 service of order, 307, 308. 
 
 adjournment of examination, 308. 
 
 good cause shown, 308. 
 
 party confined in prison, 306, 308. 
 
 refusal of person examined to answer, 309. 
 
 rules for examination, 309. 
 
 objections to, when to be taken, 309. 
 
 manner of taking, and return of, 309. 
 
 may be read in evidence, when, 309. 
 
 notice of application for, 306. 
 Description of property in replevin, 214, 223. (See Property.) 
 Designation by resident of person upon whom to serve summons during his 
 
 absence, 188. 
 Disbursements. (See Costs; Fees.) 
 Discretion, abuse of, 402. 
 
 defined, 402. 
 Discontinuance of action in answer of title, 280, 282. 
 
 sureties in undertaking on replevin liable, 50. 
 
 on removal of action, 89. 
 
 when action can be, 123, 327. 
 
 sureties in bond in replevin liable on, 50. 
 
 and abatement of action, answer of, 257. 
 Dismissal of action, nonappearance of plaintiff, 83. 
 
 of action when attachment vacated, 206. 
 
 complaint in replevin, 233. 
 Disqualification of juror, 318. 
 Disqualified sureties, 223, 224. (See Sureties.) 
 Districts, boroughs divided into, 16. 
 
 in the borough of The Bronx, 16-18. 
 
 in the borough of Manhattan, 18-26.
 
 570 I.M.KX. 
 
 Districts in the borough of Brooklyn, 20-37. 
 
 in the borough of Queens, 37, 38. 
 
 in the borough of Richmond, 38. 
 
 in what, action or proceeding to be brought, 119. 
 Docket, clerks, what to contain, 383, 384. 
 
 when evidence, 328. 
 
 judgment docketed, becomes one of Supreme Court, 340. 
 
 judgment docketed in another county. 340. 
 
 judgment where defendant liable to arrest, how entered in, 344. 
 
 alteration of, 10. 
 
 altering, does not affect validitiy of judgment, 345. 
 
 omission to keep, 345. 
 
 docketing judgment in another county, 364. 
 
 entries in clerk's, what to contain, 384. 
 
 to be delivered by clerk to successor, 385. 
 
 of judgment in county clerk's office, fees, 454. 
 
 entry of judgment in, 354. 
 Domestic corporation. (See Corporation.) 
 Domestic Relations Law, 47. 
 
 Docks, penalties for violation of ordinances of commissioner of, 56. 
 Duties, liability, and powers of justice, 10. 
 
 Election of justice held invalid,- 10. 
 
 of successor of justice, 8. 
 
 day, service of summons on, is void, 131. 
 Elements of fraud, 71. (See Fraud.) 
 Elevator, care of, by landlord, 76. 
 Employee, action by, 369. 
 
 amount less than $50, 369. 
 
 costs in action by working-woman, 154, 370. 
 
 duty of clerk, where a party, 154. 
 
 execution against property and person, 368. 
 
 judgment in favor of wage-earner, 154, 341. 
 
 jury trial in action by, 154, 315. 
 
 judgment in favor of, 368. 
 
 nurse, as to fees, et cetera, 370, 453. 
 
 statement in judgment, 370. 
 
 who is not an, 447. 
 Employer. (See Employee.) 
 English, pleadings to be in, 242. 
 Enjoining action, 42. 
 Equity jurisdiction, no, 85. 
 Equity powers, no, 86. 
 
 Equitable action to enforce mechanic's lien, 69. 
 Error of judgment, 11. 
 Erroneous, irregular, or void process, 12.
 
 Index. 571 
 
 Escape, action upon undertaking for, 50. 
 
 execution against person, 58. 
 
 jurisdiction in action for an, 58. 
 
 liability of bail, insolvent debtor, 58. 
 
 liability of officer, 59. 
 
 return of prisoner. 59. 
 Estoppel, by answering upon the merits, et cetera, 42, 83, 90. 
 
 of sureties by giving undertaking, 50, 51, 90. 
 
 when judgment is an, 328. 
 Evidence, docket-book is, 32S, 384. 
 
 deposition, 304-311. 
 
 documentary, as a substitute for oral, 328. 
 
 objections to, grounds of, must be stated, 328. 
 
 on commission, 295-304. 
 
 order of, on trial. 328. 
 
 of party, may be rebutted, 328. 
 
 of fraud, 72. 
 
 what is rebutting, 328. 
 
 foreign corporation, book of, when, 329. 
 
 foreign State, Territory, or Country, when, 329. 
 
 ordinances of cities, villages, et cetera, may be read in, 334. 
 
 printed copies of laws of another State, and reports of cases, may be 
 read in, 335. 
 
 when certificate of public officer is, 335. 
 
 seal presumptive, of consideration, 336. 
 
 statute or resolution of Legislature, how proved, 336. 
 
 court may grant or deny motion for new trial, on newly-discovered, 354. 
 
 appeal on such ground, 403. 
 
 return of marshal shall be presumptive, in action against sureties, 389. 
 
 marshal's return, in action on undertaking in replevin, 234. 
 Excavation, unguarded, 77. 
 Exception to sureties, 52, 91, 212. (See Sureties.) 
 
 on appeal, 410. 
 
 sections applicable to, 207. 
 
 effect of defendant's, in replevin, 221. 
 
 refusal to adjourn, not subject of an, 287. 
 Execution, 357-373. 
 
 action by employee, 369. 
 
 against justice, 15. 
 
 against the person before action, for an escape, 58. 
 
 against executor or administrator, 265, 358. 
 
 against the person, nature of action, 346. 
 
 as to where property has been attached, 366. 
 
 against the person, what must state, 366. 
 
 amount less than $50, in action by employee, 369. 
 
 attorney cannot issue, clerk must, 358.
 
 572 Index. 
 
 Execution) body in action to foreclose lien on chattel, 238. 
 
 contents of, in replevin, 233. 
 
 debtor must be correctly described in the, 366. 
 
 delivering of property on return of chattel, 229. 
 
 duty of marshal on, against the person, 367. 
 
 exempt property from levy and sale on, 389. 
 
 how long valid, when must be renewed, 370. 
 
 how collected, 362. 
 
 how issued, 357. 
 
 indorsement on, 362. 
 
 in action to foreclose lien upon a chattel, 358. 
 
 issued on day of, but after debtor's death, valid, 358. 
 
 judgment, 365, 373. 
 
 judgment, against property attached, 207. 
 
 judgment, against marshal, 365, 389. 
 
 jurisdiction to grant or vacate a stay of, 78. 
 
 marshal, when liable to creditor, 370, 389, 392, 398. 
 
 mechanic's lien action, 69, 358, 367. 
 
 money in replevin action, 229. 
 
 money and property in such action, 229. 
 
 protection to officer, 372. 
 
 must have been issued and returned unsatisfied, to maintain action against 
 sureties, in undertaking in replevin, 51. 
 
 requisites of, 389. 
 
 replevin action, or action to recover a chattel, 367. 
 
 return of, before action against sureties in undertaking in replevin, 234. 
 
 return and satisfaction of, 341, 365. 
 
 renewal of, 368. 
 
 representative capacity, 265. 
 
 sale on, how conducted, 390. 
 
 taking oysters out of Harlem river, 358. 
 
 where, against person may issue, 143. 
 
 where property has been attached, 366. 
 
 what property exempt from, 367. 
 
 when, may issue against person, 334. 
 
 wage-earner, 154, 368, 369. 
 Executor must sue in his representative capacity, 51. 
 
 jurisdiction of action against, 80. 
 
 counterclaim, 265. 
 
 judgment, 265, 340. 
 Exemption, affidavit of, as to property, 215. (See Property.)' 
 
 of juror, 317, 318. 
 Exempt property, action on bond for seizing, 51. 
 
 Fact in complaint, 259. 
 
 Facts must be pleaded, not fictions, 253, 254.
 
 Index. 573 
 
 False representations, what must be shown, 72. 
 
 imprisonment, no jurisdiction in action for, 73. 
 Father liable to physician for services to infant, 46. 
 
 claiming wages of minor must notify employer, 46. 
 Fees, 436-464. (See Costs; Disbursements.) 
 
 of witness on deposition to be used in another State, 107. 
 
 of witness, 107. 
 
 board of justices, cannot create and exact, 108. 
 
 none allowed to person who serves summons other than a marshal, 139. 
 
 poor person, 155, 315. 
 
 of jury, as to poor person, 155. 
 
 of jury of six, 314. 
 
 of jury of twelve, 315, 318. 
 
 tabulated statement of jury, 315. 
 
 time of deposit of jury, 315, 319. 
 
 court no power to order payment of referee's, 355. 
 
 generally, 379, 381, 382. 
 
 property of the city, 381. 
 
 payable to clerk, 381. 
 
 tabulated fees of the clerk, 381, 458. 
 
 tabulated fees of the marshal, 397, 458. 
 
 clerk to receive no, for administering certain oaths, 379. 
 
 of city clerk, upon filing transcript of justice, not to have any, 13, 15. 
 
 judgment against marshal, 394. 
 
 no officers of the city government, except marshals, to receive, to their 
 own use, 397. 
 
 tabulated statement of costs and fees, 437, 448, 449, 451, 453, 457, 458. 
 
 no fees to be demanded from fire commissioner in action to recover pen- 
 alty, 440, 453. 
 
 of marshal, for expenses, et cetera, in taking care of property re- 
 plevied, 448. 
 
 payable to clerk, 452. 
 
 same, whether amount less or over $50, 452. 
 
 trial, $1 in all cases for placing cause on calendar, 453. 
 
 clerk to have no, for his own use, 453. 
 
 poor person to pay jury, 453. 
 
 employee's action, no fees, unless jury trial demanded, 453. 
 
 property of city, 453. 
 
 on docket of judgment in county clerk's office, 454. 
 
 jurors' and jury, 454, 462. 
 
 witnesses', 454, 463. 
 
 expert, 454, 455. 
 
 parties', attorneys', et cetera, when not allowed, 455. 
 
 stenographers', 455. 
 
 marshals', 397, 456, 458, 463. 
 
 defaulting witness, fees on warrant of attachment against, 467.
 
 574 Index. 
 
 Fees, bargains for, are void, 457. 
 
 keepers', 457. 
 
 summary proceedings, 458. 
 
 of clerk, 461. 
 Female, arrest of, 161. 
 Fidelity or surety company may execute undertaking for replevin, which must 
 
 be approved by the court, 216. 
 Fictitious name. (See also Name.) 
 
 how and when jurisdiction acquired, 84. 
 
 attachment, 204. 
 
 unauthorized summons, 249. 
 
 in summons, appearance, 123. 
 
 name of another, 123. 
 
 amendment of, in summons, 124. 
 
 ignorance of true name, 125. 
 
 mistake in name, 126. 
 
 striking out, 126. 
 
 unknown name, 126. 
 
 no authority to grant attachment on, 183. 
 
 judgment against defendant by a, can be amended, 340. 
 
 judgment against person sued by a, 361. 
 
 liability of marshal in execution, 371. 
 Fine, jurisdiction in action to recover, 56. 
 
 for driving fish-poles, 57. 
 
 for pilot commissioners, 57. 
 Fire commissioner. (See Commissioner.) 
 Fish-poles, fine for driving, 57. 
 Foreign corporation. (See Corporation.) 
 Forms, appendix of, 481. 
 
 Foreclosure of lien on chattel, 236. (See Lien on Chattel.) 
 Fraud, assignment, making of. court has jurisdiction to try, 52. 
 
 agent and principal jointly liable, 71. 
 
 appeal from order denying motion for new trial on the ground of, or for 
 newly-discovered evidence, 403. 
 
 by partner, 166. 
 
 checks drawn without funds to meet them, 71. 
 
 checks, withdrawal of deposit, 71. 
 
 complaint for, 254. 
 
 deceit, when action lies, 71. 
 
 defense of, 86, 259. 
 
 elements of, 71. 
 
 evidences of, 72. 
 
 false representations must be shown, 72. 
 
 jurisdiction in action for, 71. 
 
 misrepresentations, 72. 
 
 promise, when not a, 72.
 
 Index. 575 
 
 Fraud, proof of, 72. 
 
 proof of knowledge, 73. 
 
 property acquired and disposed of by, may be recovered in replevin, 60. 
 
 relation of parties, 73. 
 
 remedies against, 73. 
 
 sale, 73. 
 
 no affirmative relief on the ground of, 86. 
 
 when defendant guilty of, liable to arrest, 164, 170. 
 Frauds, Statute of, 48. 
 
 defense of, 258. 
 
 Goods manufactured according to specifications, and sale by sample, 45. 
 
 mingling, replevin, 60. 
 Greater New York Charter, sections repealed, 467. 
 
 sections preserved in, 480. 
 Guardian claiming wages of infant must notify employer, effect of notifica- 
 tion, 46. 
 
 cannot sue as a poor person, 155. 
 
 Domestic Relations Law, 47. 
 Guardian ad litem appointed by the court, 149. 
 
 duty of attorney to act as, 151. 
 
 infant defendant must have, 150. 
 
 must sign consent to become such, 151. 
 
 poor person, 155. 
 
 when to be appointed, 150. 
 
 wealth or poverty of, as to responsibility for costs, 438. 
 
 Habeas corpus, to testify, 292. 
 
 Health department, action by, to recover penalty, 57, 120. 
 
 answer of title, 278. 
 
 Building Code, costs, 440. 
 
 costs in action by, 438. 
 
 parties defendant, who are, 153. 
 Hearing on appeal, dismissal, reversal on stipulation, 420. 
 Holiday, public and half, 115, 141. 
 
 rent due on, 48. 
 
 Saturday afternoon, 115. 
 
 service of summons on, is valid, 132. 
 
 what are legal, 141. 
 Hotel-keeper's lien, 66. 
 Householder, who is a, 224. 
 Husband attorney for wife, 46. (See Wife.) 
 
 credit of, abandonment of wife, 46. 
 
 Domestic Relations Law, 47. 
 
 liability of, for counsel fee for services of, 47. 
 
 separate maintenance of wife, 47. 
 
 when not a necessary party to action or special proceeding, 152. 
 
 or wife, when competent and incompetent witnesses, 329.
 
 576 Index. 
 
 Incapacity to sue, 263. 
 
 Indemnity to marshal in action against against him by third person on claim 
 
 of title in replevin, 228. 
 Indorsement of summons in action to recover a penalty, 58. 
 
 of summons, no jurisdiction if no, 85. 
 
 of summons, no judgment or execution if no, 249. 
 Infant, arrest of, when not liable to, 167. 
 
 complaint must allege appointment of guardian for, 254. 
 
 Domestic Relations Law, 47. 
 
 necessaries, 45, 46. 
 
 physician, 46. 
 
 right of, to bring action, 45, 151. 
 
 wages of, parent must notify employer of claim, notification, effect of, 46. 
 Inspection, of premises, when court or judge may examine, 329. 
 Installments on conditional sales, action to recover, 46. 
 
 action may be brought upon bond for each, 48. 
 
 action on conditional sale agreement, et cetera, how brought, 237. 
 Intent, 204. 
 Interest of justice, 10. 
 
 on judgment, when allowed, 341. 
 
 in property, 60. 
 
 on claim on removal of action, amount, 89. 
 Interpleader, by order, in certain cases, 282, 283. 
 
 costs, in action, 283. 
 
 commission to take testimony, 283, 297. 
 
 discretionary, 283. 
 
 doctrine of, 283. 
 • history on review, 284. 
 
 judgment creditors, 284. 
 
 life insurance, 284. 
 
 liability of defendant, 284. 
 
 order for practice, 284. 
 
 merchandise, 284. 
 
 warehouseman, 284. 
 Interpreter appointed and removed by justice for cause, 376. 
 
 period of appointment of, 376. 
 
 salary of, 37.6. 
 
 must speak at least two languages, 377. 
 
 not an officer of the city government, 377. 
 
 can hold two offices simultaneously, 377. 
 Interrogatories to commission to take testimony, 295, 302, 303. 
 Irregular process, 12. 
 
 Irregularities, affidavits, bonds, and undertakings, mistakes in, 52, 91, 171, 193, 
 207, 212, 223, 331, 409. 
 
 on attachment, must be specified in order to show cause, 204. 
 
 in judgment in replevin may be cured, 232.
 
 Index. 577 
 
 Irregularities, substituted service, 134. 
 
 waiver of, on deposition taken conditionally, 310. 
 
 waiver of, 214. 
 Issue, pleading on joinder of, 241. 
 
 who has affirmative of, right to begin, 335, 336. 
 Issues, no change of, on removal of action, 95. 
 
 Janitor. (See Attendant.) 
 
 Joined, parties who may be, 80. 
 
 Joinder of action for replevin with other causes of action, 236. 
 
 of issue, pleading on, 241. 
 
 what cause of action may be united. (See Complaint.) 
 Joint debtors, action against, 80. 
 
 action against, not served, 154, 340, 361. 
 
 when not liable to arrest for deceit, 167. 
 
 effect of judgment against partners, 362. 
 
 action against, after recovery of judgment, 363. 
 Judge. (See Justice; Court.) 
 
 cannot issue mandate for contempt, 100. 
 
 power to punish disorderly behavior, 100. 
 
 may administer oaths, et cetera, 105. 
 
 has fourteen days in which to render judgment, 311. 
 
 when defendant under arrest must decide immediately, 311. 
 Judgment, adjournment, no power to render after, 82. 
 
 affirmed on appeal, when, will be, 325, 326, 331, 335, 414, 424. 
 
 appeal from, when may bo taken, 339. 
 
 appeal from, taken by default, 402. 
 
 appeal on, how must be rendered, 401, 421. 
 
 appeal from order denying motion to open, taken by default, 356. 
 
 appellate court may correct, modify, increase, and reverse, as to amount 
 of, 401. 
 
 for arrest, 10. 
 
 for arrest, when defendant liable to, 344. 
 
 for arrest, cause of action for arrest and contract, 342, 343. 
 
 for arrest, order of, may be ganted in action on judgment, where debt 
 fraudulently contracted, 162. 
 
 attachment, when property has been attached, 206. 
 
 attachment vacated, no ground to vacate proper, 204. 
 
 bastardy and abandonment bonds, 277. 
 
 boarding-house keeper's lien, conversion, 10, 44. 
 
 upon bond given on attached property, 200. 
 
 confession of, jurisdiction to render, 78. 
 
 confession of, when invalid, 79. 
 
 consent, jurisdiction to render by, 78. 
 
 conditions on opening or vacating, may be imposed by court, 354. 
 
 costs of motion to be included in, 439. 
 
 37
 
 578 Index. 
 
 Judgment, counterclaim. 2G4, 265, 266, 342. 
 
 counterclaim, when equal or unequal, 340. 
 
 creditors, interpleader, 284. 
 
 for deceit on written complaint, 249. 
 
 decision of justice not in time, 83, 84. 
 
 by default, 340. 
 
 by default cannot be taken unless verified oomplaint be served with sum- 
 mons, 327. 
 
 defendant's failure to appear, 248, 327. 
 
 delay in entering, 11. 
 
 demand for prayer for relief not material, 327. 
 
 of dismissal on merits, when, 343. 
 
 of dismissal of complaint, unverified answer, 342. 
 
 disputing fact of service of summons, before and after, 137, 138. 
 
 docketing in another county, 364, 365. 
 
 when docketed become a, of Supreme Court, 340. 
 
 error of, 11, 12. 
 
 erroneous, after filing undertaking on removal and reducing amount of 
 claim, 91. 
 
 against executor et cetera, 340. 
 
 fictitious name, 125, 361. 
 
 fictitious name, may be amended, 340. 
 
 interest on, allowed, when, 341. 
 
 interpleader, creditors, 284. 
 
 joint debtors, 80. 
 
 effect of, against joint defendants when all not served, 340, 361, 363. 
 
 how docketed against, effect of, 363. 
 
 jurisdiction to render, 78. 
 
 jurisdiction to render, on confession of, 78. 
 
 jurisdiction to render, on consent, 78. 
 
 jurisdiction, in action upon, 55. 
 
 jurisdiction, to vacate, amend, or modify, 70, 71, 81. 
 
 jurisdiction, when sum exceeds, 344. 
 
 jurisdiction, loss of, to render, 83, 84. 
 
 jurisdiction, no, of action upon, of court of record, 84. 
 
 lien on chattel, 238, 249, 340, 341. 
 
 married woman, for and against, 341. 
 
 marshal, against, 340, 365, 389, 394. 
 
 marshal, against, to be indorsed on his bond, 394. 
 
 mechanic's lien action, 69, 340. 
 
 motion to vacate or amend, 71. 
 
 motion to set aside verdict, or vacate, or amend, within what time to be 
 made, 352. 
 
 nonsuit, when authorized, 341, 344. 
 
 no verified complaint, 249. 
 
 offer to allow, or compromise, 250, 340.
 
 Index. 579 
 
 Judgment, offer to allow, after removal of action, 91, 250. 
 
 on offer, 250. 
 
 partners, against, 364. 
 
 pleaded, how, 254, 200, 274. 
 
 real property, bound by, when, and for how long, 340, 360. 
 
 real property, bound by, when, in another county, 340. 
 
 reversal of, when will be reversed on appeal, grounds for, 324, 325, 327, 
 335, 348, 413, 427. 
 
 in replevin, 233, 341, 343. 
 
 in replevin, final, 232. 
 
 in replevin, alternative, 232. 
 
 in replevin, irregularity in, for, may be cured, 232. 
 
 in replevin, does not affect right of an action to recover damages, 211, 230. 
 
 representative capacity, 265. 
 
 satisfaction of, on execution, 373. 
 
 docketed, how satisfied, 373. 
 
 satisfaction presumed, when, 341, 300. 
 
 sufficiently rendered, when, 313. 
 
 Sunday, cannot be entered on, 337, 341. 
 
 undertaking to stay execution upon, on appeal, 408. 
 
 or verdict in replevin, what to state, 230, 231. 
 
 or verdict, et cetera, for part of several chattels, 231. 
 
 on verdict, court may direct, when, 340. 
 
 on verdict, motion to set aside, or vacate, or amend, 352. 
 
 or verdict, within what time to be made, 352. 
 
 void on confession, when, 79. 
 
 void, when obtained by person practicing not an attorney, 12, 341. 
 
 void, if justice did not decide in time, 83, 84. 
 
 void, if summons served on defendant's attorney and no appearance, 84. 
 
 void, if no jurisdiction of subject-matter, 84. 
 
 wage-earner, in favor of, 154, 308, 341. 
 Jurisdiction, 40-86. 
 
 abandonment cases, to commit or require further security in, 277. 
 
 account stated, implied assent, 42. 
 
 acquired, how, 42. 
 
 action for difference of amount, and court's jurisdiction, 206. 
 
 of action does not depend upon sufficiency of affidavit for order of arrest, 
 75. 
 
 administrator, action against, 80. 
 
 amend or modify a judgment or final order, in an action, 81. 
 
 amendment of pleading, new cause of action 41. 
 
 amount of, $500, 42, 48, 49, 56, 58, 59, 62, 68, 71, 73, 80, 236. 
 
 amount in excess of, 344. 
 
 amount in excess of, waiver, 4S. 
 
 answer of title, court has, if undertaking not delivered, 281. 
 
 appeal may be taken from jurisdictional defects, 403.
 
 580 Index. 
 
 Jurisdiction, appearance by attorney gives, 41. 
 
 arrested on offer of undertaking on removal of action, 90. 
 attachment, to issue or vacate warrant of, 78. 
 vacating warrant of, does not affect, 206. 
 bailee, liability of, 43. 
 bailee, conversion by, 44. 
 bastardy and abandonment bonds, 54. 
 
 bond (undertaking), bastardy and abandonment, action upon, 54. 
 bond for appearance, 49. 
 bond on arrest and imprisonment, 49. 
 bond, attachment, 50. 
 
 bond, cause of action, liability of sureties on, 50. 
 bond, in action of replevin, sureties, how bound, 50. 
 bond, conditioned for payment of money, 48. 
 
 bond, discontinuance of action in replevin, effect upon undertaking, 50. 
 bond, escape, liability of sureties for, 50. 
 bond, estoppel from denying facts in, 50 
 bond, executor must sue in representative capacity, 51. 
 bond, exempt property under execution, seizure of. -51. 
 bond, exception to, and justification of, sureties, 52. 
 bond, execution must have been issued, and returned unsatisfied, 51. 
 bond, evidence to impeach, 51. 
 
 bond, fraud in making assignment, court has to try, 52. 
 bond, insurance agent, 52. 
 bond, joint and several liability, 52. 
 bond, liability of sureties, 52. 
 bond of marshal, action upon, 55, 393. 
 bond returned, 52. 
 bond, mechanic's lien, 52. 
 
 bond, mistakes, omissions, defects and irregularities, and general regu- 
 lations respecting, 52, 91, 171, 193, 202, 212, 223, 331, 409. 
 bond, order of arrest, 52. 
 bond, removal, 53. 
 bond, replevin, 53. 
 bond, surety or undertaking, 49. 
 
 bond, surety or undertaking, action on, when maintainable, 49. 
 bond, surety or undertaking, amendment of, 49. 
 bond, title to real property in question, 53. 
 bond, undertaking synonymous with bond, 53. 
 bond, vessels, 54. 
 breach of contract, 42. 
 
 breach of contract, damages for not conveying a good title, 48. 
 broker, commissions, 42. 
 city of New York, actions against, 80. 
 chattels, action to recover, 59. 
 conditional sales, installments, 46.
 
 Index. 581 
 
 Jurisdiction, confession, to render judgment upon, 78. 
 
 confession, to vacate, amend, or modify judgment upon, 81. 
 
 contract, breach of, 42, 43, 45. 
 
 contract, authority of employee, 43. 
 
 contract, effect of refusal to perform, 43. 
 
 contract, performance, 44. 
 
 contract, excusing performance, 44. 
 
 contract, measure of damages, breach of, 45. 
 
 contract, terms of, 48. 
 
 contract, breach of, for not conveying a good title, 48. 
 
 consent, cannot give, 41. 
 
 consent, to render judgment upon, 78. 
 
 consent, to vacate, amend, or modify judgment upon, 81. 
 
 conversion, 43, 44. 
 
 conversion, by agent, 44. 
 
 conversion, by authority, 44. 
 
 conversion, by bailee, 44. 
 
 conversion, boarding-house keeper's lien, judgment, 44. 
 
 conversion, by carrier, 44. 
 
 conversion of check, 44. 
 
 conversion, by pledgee, 44. 
 
 conversion of stolen horse, 44. 
 
 conversion, value, 44. 
 
 corporation, domestic, or foreign, actions against, 80. 
 
 costs, where court has no, 438. 
 
 counterclaim in excess of court's, 266. 
 
 damages, breach of contract, 42, 45. 
 
 damages, breach of contract, measure of, 45. 
 
 damages, breach of contract for not conveying a good title, 48. 
 
 decedent's debts, 45. 
 
 deceit, action for damages for, 71, 86. 
 
 default, to open a, 81. 
 
 defense of fraud, 86. 
 
 definition of, 41. 
 
 demurrer to court's, 266. 
 
 depends upon service of summons in order of arrest case, 180. 
 
 direct or set aside verdict in an action or summary proceeding, to, 81. 
 
 disputed, 83. 
 
 enlargement of, by construction, refused, 83. 
 
 enjoining action, 42. 
 
 equity powers, 86. 
 
 equitable action to enforce mechanic's lien, 69. 
 
 escape from jail liberties, action for damages for, 58. 
 
 escape, execution against the person, 58. 
 
 escape, liability of bail; debtor insolvent, 58. 
 
 escape, liability of officer, 59.
 
 5$2 Index. 
 
 Jurisdiction, escape, return of prisoner, 59. 
 estoppel, 42, 83. 
 
 execution, to grant or vacate a stay of, 78. 
 executor, action against an, 80. 
 fictitious name, 84. 
 fine or penalty, action for, 56. 
 
 fine or penalty, action for. indorsement on summons, 58. 
 fraud, action tor damages for, 71, 86. 
 
 goods, manufactured according to specifications and sale by sample, 45. 
 hiring, installments on conditional sales, 46. 
 implication, 83. 
 
 infant, right of, to bring action, 45. 
 infant, necessaries, 45. 
 infant, physician, 46. 
 infant, wages of, 46. 
 infant, notification to employer, 46. 
 installments on conditional sales, 46. 
 of judgment, 55. 
 of judgment, how pleaded, 274. 
 lien upon chattel, action to foreclose, 62. 
 loss of, 84. 
 
 services, action for damages for, 73. 
 married women's necessaries, 46. 
 married women's necessaries, abandonment, 46. 
 married women's necessaries, credit of hvisband, 46. 
 married women's necessaries, counsel fee, liability of husband for services 
 
 of attorney, 46. 
 married women, domestic relations law, 47. 
 married women's separate maintenance, 47. 
 marshal, action upon bond of, 55. 
 mechanic's lien, action to foreclose, 68. 
 money deposited, accounting, 47. 
 money had and received, accounting, 47. 
 negligence, 43, 82. 
 negligence of conductor of railroad company, must be alleged to cause 
 
 liability of company for assault and battery, 82. 
 new trial, to grant a, 81. 
 
 new trial, on ground of fraud, or newly-discovered evidence, 81. 
 no, in certain cases, 81. 
 no, abated, when action has, 81. 
 no, adjournments, illegal, 82. 
 no, assault and battery, action for, 73, 82. 
 no, attachment, without posting summons, et cetera, 82. 
 no, attorney's lien, 82. 
 
 no, conditional sale, where title not vested, 85. 
 no, consequential damages., 82.
 
 Index. 583 
 
 Jurisdiction, no, criminal conversation, 73. 
 no, decedent's debts, 83. 
 
 no, dismissal of action on plaintiff's failure to appear after, 83. 
 no, decision of justice not in time, 83. 
 no, equity, 85, 86. 
 
 no, false imprisonment, action for, 73. 
 no, fictitious name, without further statement, 84. 
 no, judgment court of record action upon, 84. 
 no, libel, 73. 
 
 no, loss of society of husband or wife, Id. 
 no, malicious prosecution, action for, 73. 
 no, order of reference, no power to make, 84. 
 
 no, promise to marry, action to recover damages for breach of, 42. 
 no, referee, no power to appoint, 84. 
 no, seduction, 73. 
 
 no, service of summons not a fact, 84. 
 
 no, service of summons on defendant's attorney not followed by ap- 
 pearance, 84. 
 no, slander, 73. 
 
 no, subject-matter, judgment void, 84. 
 no, substituted service, not defendant's residence, 84. 
 no, summons, amendment of, by adding amount in another summons, 85. 
 no, summons not indorsed, 85. 
 no, tender of undertaking on removal, 85. 
 no, title to real property in question, 85, 278. 
 no, written instrument, actions to reform, 86. 
 objection to, when to be taken, 84. 
 objection to, when may be taken, 84. 
 order of arrest, to issue or vacate, 78. 
 other civil actions, or proceedings, et cetera, 79. 
 partnership, 47. 
 penalty or fine, action for, 56. 
 penalty or fine, indorsement on summons, 58. 
 personal injury, action for damages for, 73. 
 power of court limited, 42. 
 proceedings, to grant or vacate a stay of, 78. 
 promissory notes, action upon lost negotiable paper, 47. 
 promissory notes, accommodation note; usury, 48. 
 property, injury to, action for damages for, 73. 
 property, out of the county, replevin for, 62. 
 replevin, jurisdiction in action of, 59. 
 
 provisional remedy, does not depend upon whether it is vacated, 206. 
 rent, due on holiday, 48. 
 replevin, action to recover chattels, 59. 
 restaurant-keeper, 43. 
 sheriff, action against, to recover property seized, 62.
 
 5S4 Index. 
 
 Jurisdiction, submission of controversy, 42. 
 
 summary proceeding, 70, 78, 81. 
 
 Statute of Frauds, 48. 
 
 terms of contract, 48. 
 
 title, damages for not conveying, 48. 
 
 undertaking, action on. 'See Jurisdiction; Bond.) 
 
 verdict, to direct or set aside, in an action, or summary proceeding, 81. 
 
 waiver of amount in excess of, 48, 85. 
 
 waiver of amount in answering on the merits, or giving undertaking on 
 removal, 90. 
 Juror. (See Jury, and Jury Trial.) 
 Jury, and Jury Trial, 50. 
 
 adjournment after return of, 321. 
 
 assent to a jury of twelve, 319. 
 
 bastardy and abandonment bonds, in action upon, 55, 314. 
 
 bond of marshal in action upon, 55. 
 
 challenge, grounds of, 329. 
 
 peremptory challenges, number of, 329. 
 
 trial of, on challenge, 330. 
 
 chattel, action to recover, jury of twelve, 322. 
 
 chattel, verdict of, in action to recover, 322. 
 
 court may direct trial by jury, when, 310. 
 
 court has power to set aside verdict of jury and to order new trial, et 
 cetera, 321. 
 
 demand for jury trial must be made upon joining issue, 314. 
 
 fees of, 315. 
 
 dissent of, from verdict, 322. 
 
 drawing the jury, 314. 
 
 employee or wage- earner is plaintiff, when, 154. 
 
 examination and swearing of the jury, 330. 
 
 fees of, 454, 462. 
 
 Avhen trial of six, 314, 319. 
 
 when trial of twelve. 315, 318. 
 
 tabulated fees of, 462. 
 
 justice may direct and order, 10. 316, 330. 
 | joint contract, how, may find, 322. 
 
 jurors, ballot of, summoned but not drawn, 320. 
 
 jurors, bribery of officer by juror drawn, punishment for, 318. 
 
 jurors, bribery, concealing offer of, punishment for, 318. 
 
 jurors, default, in attendance is contempt, 102. 
 
 jurors, dissent of, from verdict. 322 
 
 jurors, excuse when serving in this court, 318. 
 
 jurors, exempt from jury duty in every other court, when, 317. 
 
 jurors, list of trial, to be furnished by clerk. 317. 
 
 jurors, misconduct of, 102. 
 
 jurors, physician giving false certificate to, penalty for, 318.
 
 Index. 585 
 
 Jury, jurors, qualification, et cetera, of, 318. 
 
 jurors, refusal to attend, or be sworn, et cetera, is contempt, 104. 
 
 jurors, how summoned, 319. 
 
 jurors, talesmen, 320. 
 
 marshal in charge of, 330, 389. 
 
 oath to, 330, 334. 
 
 objection to, when to be made, 331. 
 
 papers, jury taking out, 331. 
 
 polling the, 322. 
 
 replevin, verdict of, in action to recover a chattel, 322. 
 
 requests to go to the, 335. 
 
 second trial, 317. 
 
 in summary proceeding, 70. 
 
 swearing of, 329, 330. 
 
 verdict of, in action of replevin or to recover a chattel, 322. 
 
 wage-earner is plaintiff, when, 154. 
 
 withdrawing, 331. 
 Justices, 7. 
 
 additional, 9. 
 
 access to courthouse, to have, 117. 
 
 action cannot be continued before another justice, while special pro- 
 ceeding may be, 113, 326. 
 
 appeal, return on, no right to voluntarily alter, or add to, 412. 
 
 appeal, return on, liability for false, 12, 415. 
 
 attendants, stenographer and interpreter may be removed by, 376. 
 
 attorney, may act as, in his own case, 13. 
 
 board of justices, duties of, et cetera, 107. 
 
 board of justices, majority must concur to adopt resolution, 112. 
 
 case on appeal, to settle, 416. 
 
 case on appeal, to settle, when out of office, 417. 
 
 clerk, assistant clerk and other officers, stenographer, interpreter, and 
 attendants, 376. 
 
 city officer, not a, 9. 
 
 contempt, cannot issue mandate for, 100. 
 
 continuance in office, 10. 
 
 conversion, in action for, must insert in judgment the words "defendant 
 liable to execution against his person," 345. 
 
 court open, keeping, and trial on Sunday, 10. 
 
 death or removal of, not to impair proceedings, 13, 113. 
 
 death or removal of, remedy on appeal, 417. 
 
 decision, has fourteen days for, 311. 
 
 decision, when defendant under arrest, must decide immediately, 311. 
 
 decision, if not in time, 83, 84. 
 
 decision, after time limited for, 312. 
 
 decision, consent to decide after time limited, 312. 
 
 decision, failure to decide, 312.
 
 586 Index. 
 
 Justices, delaying entry of judgment, 11. 
 disqualification of, 13. 
 disorderly behavior, power to punish, 100. 
 district, when, may hold court in another, than in one which he was 
 
 elected, 112. 
 docket, altering, 10. 
 
 duties, liability, and powers, 10, 11, 12. 
 
 duties of, in approving undertaking on removal of action, 90. 
 election of, 9. 
 
 election of, held invalid, 10. 
 exceeding his power, 12. 
 error of judgment, 11, 12. 
 
 execution or supplementary proceedings against, 15. 
 false return, liability of, for, 12, 415. 
 fees, to have no, 13, 15. 
 fees, cannot create, or exact, 108. 
 interest, relationship of counsel, 10. 
 interpreter, may remove, 376. 
 jury trial, may direct, 10, 330. 
 liability of, 10, 11, 12. 
 mandamus to, 312. 
 mandamus, to remove action, 91. 
 marriages, may solemnize, 10. 
 misdemeanor, 12. 
 
 misdemeanor, allowing person not an attorney to practice, 12. 
 names of, with their residences, xxv. 
 oath of, 14. 
 
 oath, may administer, et cetera, 105. 
 qualification, et cetera, of, 13. 
 relationship, 11. 
 
 requisition of, in replevin, 218. 
 requisition of, in replevin, how executed, 218. 
 return on appeal, false liability for, 12, 415. 
 return on appeal, no right to voluntarily add or alter, 412. 
 rules, to make, 108. 
 
 rules of practice, adopted by board of, 109. 
 salary of, 14. 
 
 stenographer, may be removed by, 376. 
 stenographer, no copy minutes for, taxable, 455. 
 successors of. election of, 8. 
 term of, 8, 15, 16. 
 
 term of office, finishing trial and return to writs after, 11, 329. 
 transcript of proceedings, 11. 
 trial, may inspect premises on, 329. 
 trial, cannot finish after term of office, 329. 
 undertaking on appeal must be approved by, 408, 410.
 
 Index. 587 
 
 Justices, undertaking on removal, remedy if, refuses to accept, 90. 
 
 vacancies in terms of office of, 16. 
 
 volunteering amendments, 11, 273. 
 
 witness, proceedings in case of, 14, 172. 
 Justification of sureties, 52, 91, 212, 224. 
 
 adjournment of, 224. 
 
 adjournment to allow, on undertaking on removal, 93. 
 
 of defendant in replevin on return of the summons, 222. 
 
 failure to, 224. 
 
 further time, 224. 
 
 sections applicable to, 207. 
 
 Knowledge, verification, 271. 
 
 Landlord and tenant, breach of agreement to make repairs, 75, 70. 
 
 ceiling falling in tenant's apartments, notice of defect, 73, 76. 
 
 complaint for rent, 254. 
 
 damage by water, leaking pipes, 76. 
 
 dumbwaiter in dangerous condition, 76. 
 
 elevator, care of, 76. 
 
 use and occupation, complaint for, 256. 
 Law books, et cetera, when exempt from lien, 66. 
 Laws repealed, 467. (See Repeal.) 
 
 schedule of, repealed, 467. 
 Legal, capacity, no, is ground for demurrer, 267. 
 
 custody, property in, 211. 
 Liability of justice, 10, 11. (See Justice.) 
 Libel, no jurisdiction in action for, 73. 
 Lien, action to foreclose on a judgment, 340. 
 
 animals, wagons, or harness, of bailee, 63. 
 
 apparel of wife cannot be detained, 64. 
 
 artisan's, on personal property, 63. 
 
 attorney's, this court no power to enforce, 82, 86. 
 
 bailment, lien on, 63. 
 
 boarding-house keeper, who is, 64, 66. 
 
 boarding-house keeper, extent of his, upon, 64. 
 
 boarding-house keeper, conversion, arrest for, 165. 
 
 book accountant's, 64. 
 
 books, blanks, et cetera, of lawyer, exempt, 66. 
 
 chattel, upon, action to foreclose, 62, 136. 
 
 chattel, upon action to foreclose, in what court maintainable, 236. 
 
 chattel, warrant in action for, 237. 
 
 chattel, action on conditional sale agreement, how brought, 237. 
 
 conditional sales of, exemption from, 65. 
 
 conditional sales, vendor and vendee, 238.
 
 588 Index. 
 
 Licn,conditional sales, conditions and reservations in contracts for sale of goods 
 and chattels, 238. 
 
 conversion, boarding-house keepers' lien, judgment, 239. 
 
 judgment, order of arrest, body execution, 238. 
 
 judgment, ct cetera, 239. 
 
 application of this article, not to affect other rights or remedy, 239. 
 
 enforcement of liens, on personal property, 239. 
 
 carriages and vehicles, 04. 
 
 choses in action, 64. 
 
 common law, what they embrace, 64. 
 
 discharge of, 65, 66. 
 
 duration of, on monuments, ct cetera, 67. 
 i extent of, tender, 66. 
 
 hotel, inn, and lodging-house keeper's, 66. 
 
 law, 65. 
 
 law books, law blanks, and law office supplies, 66. 
 
 legal custody, 211. 
 
 livery-stable keepers', agreement, 66. 
 
 mechanics' liens. (See Mechanics' Liens.) 
 
 monuments, tombstones, et cetera, 67. 
 
 notice of, 67. 
 
 newspaper, 67. 
 
 piano or organ, 67. 
 
 safe sold conditionally, 68. 
 
 sales of property to satisfy, 68. 
 
 stallions, service of, 68. 
 
 statutory, 68. 
 
 storage, enforcement upon, 68. 
 
 storage, private, 67. 
 
 tender of, 66. 
 
 undertaking on removal in action to recover, 87. 
 
 warehouse, 68. 
 
 warehouseman, 68. 
 
 when it exists and does not exist, 65. 
 when it is and is not defeated, 64. 
 wife's Avearing apparel cannot be detained, 64. 
 workingmen's, 68. 
 Life insurance, interpleader, 284. 
 Limitation, Statute of, as to wage-earner, 368, 369. 
 Livery-stable keepers, lien, 66, 67. 
 Lodging-house keepers, lien, 66. 
 Loss of services, jurisdiction in action to recover damages for, 73. 
 
 of society of husband or wife, no jurisdiction in action for, 73. 
 Lost negotiable paper, action upon, 47. 
 Lunatic, service of summons on, not valid, 132.
 
 Index. 589 
 
 Mandamus, for failure of court, judge, or justice to decide, 312. 
 
 to remove action, 91. 
 Manhattan, borough of, names of the justices, clerks, court officials, and mar- 
 shals, with their residences, day, places of holding court, and telephone 
 number, xxvi. 
 
 districts in the borough of, 18-26. 
 
 removal of action to City Court, 87. 
 Malicious prosecution, no jurisdiction in action for, 73. 
 Mandate, defined, 100, 397, 398. 
 Marriage, justice may solemnize, 10. 
 Married woman, abandonment by her of husband, no support, 4G. 
 
 abandonment of, by husband, credit, 46. 
 
 agency of, 46. 
 
 appears in action as if single, 152. 
 
 credit of husband, 46. 
 
 Domestic Relations Law, 47. 
 
 husband liable for services of attorney, 46. 
 
 judgment against, 341. 
 
 necessaries furnished wife, complaint for, 255. 
 
 separate maintenance by husband, 47. 
 
 wife's property, 62. 
 
 wife's wearing apparel, 64. 
 Marshal. (See also Sheriff.) 
 
 action may be maintained by, for attached property, 197. 
 
 action, must deliver attached property in such case to defendant, when 
 bond given, 198. 
 
 action by, on undertaking given by third person on claim of title, 398. 
 
 action against, by third person claiming title in replevin, 227. 
 
 agreement with debtor on execution, 457. 
 
 amount collected on bond of, to be credited, 394. 
 
 appear for either party, cannot, 149, 390. 
 
 appointment, certificate of, 388. 
 
 appointment for the boroughs of Queens and Richmond, 388. 
 
 appointment of, deemed waived for failure to file bond, 395. 
 
 arrest by, duty of, in making, 175, 388. 
 
 arrest of defendant, to notify plaintiff of, 172. 
 
 arrest of defendant, undertaking given by, to be delivered to, 172. 
 
 arrest of defendant, may examine bail given by defendant, 173. 
 
 arrest, order of, must be directed to, and served by, 388, 389. 
 
 attached property, certificate of, to be furnished by, 196. 
 
 bond of, 389, 390. 
 
 bond of, to mayor, removal of, 395. 
 
 bond of, prosecution of, 389, 391, 393. 
 
 bond of, cancelled, city clerk to report to mayor, 389. 
 
 book of entry to be kept by, of process, et cetera, issued to him, 398. 
 
 chattel, when and whom to deliver to, 225.
 
 590 Index. 
 
 Marshal, civil officer not to hold any other office, 389. 
 compensation of, 389. 
 contempt, when guilty of, 102, 389. 
 contempt, error or mistake of, 371. 
 continued, in the city of New York and Brooklyn, 386. 
 costs, on motion for leave to prosecute bond of, 439. 
 definition of, 389. 
 
 deposit, given in lieu of undertaking, must pay into court, 173. 
 execute warrant of attachment, 193, 397. 
 entry of judgment on bond of, 394. 
 exception to sureties may be served on, 398. 
 execution must be issued to, 357. 
 execution not to issue, in action to foreclose lien on chattel, unless return 
 
 that property not available for levy, et cetera, 358. 
 execution must be directed to, 365. 
 execution, when issued to, duty of, 365. 
 execution against the person, duty of, 367, 388. 
 execution against wage-earner, duty of, 370. 
 execution creditor, liability to, by, 370, 389, 392, 398. 
 execution issued to, no power to delegate or substitute, 371. 
 execution, fictitious name, when liable on, 371. 
 execution to, requisite of, notice of sale and other provisions concerning, 
 
 389. 
 execution for unpaid taxes, duty of, 389. 
 execution, exempt property, 389. 
 
 execution, sale on, when and how conducted by, 390. 
 execution by, when resisted, sheriff to act, 398. 
 execution, seizure and return by, on, for fine, et cetera, oysters around the 
 
 waters of Harlem river, 398. 
 execution in replevin, 398. 
 expenses of, in replevin, 389, 397. 
 fees of, and tabulated fees, 389, 397, 456, 457, 463. 
 fees, no officer of city government except, to receive any, to their own use, 
 
 397. 
 fees for trouble, et cetera, in taking care of replevied property, 219, 248. 
 fees, none allowed to person serving summons other than, 139. 
 goods taken from a building by third party, 398. 
 indemnity to, in action in replevin, 228. 
 indemnity for levy by, 372. 
 juror, punishment of, for bribing, 318. 
 jury list, to receive from clerk when drawn, 314. 
 jury, to summon, from list, 319. 
 jury, to summon talesmen, 320. 
 jury, must be put in charge of, 330, 389. 
 judgment against, 340, 365, 389, 394. 
 judgment creditor, trespass by, 367.
 
 Index. 591 
 
 Marshal, judgment against transcript and execution, 393. 
 judgment against, duty of, 389. 
 levy by, pointing out goods, 397. 
 mandate, execution of, by, 398. 
 mayor to appoint, and terms of, 387. 
 mayor to appoint in writing, 387. 
 money paid to, recovering back, 373. 
 money, nonattachment, insufficient, 201. 
 names of and residences of, xxv. 
 
 notice by, requiring indemnity on claim of title by third person, 226. 
 oath to, 330, 389. 
 
 penalty for wrong delivery of property by, 226, 398. 
 penalty, what should be alleged in action for wrong delivery by, 226. 
 powers of, 389. 
 
 process may be served in city limits, 396. 
 
 process must be served and executed by, 160, 389, 395, 396, 397. 
 process, when insufficient, 372. 
 
 property, must deliver, to claimant when bond given, 199. 
 property of stranger taken by, 377, 392. 
 property exempt from levy and sale on execution, 389. 
 property taken and no return, 372. 
 property taken by, when protected, 372. 
 property, purchase of, by, prohibited, 367. 
 property replevied, care of, 220. 
 removal and suspension of, 389, 395, 398. 
 rent, liability for, 398. 
 
 replevin, return to, requisition in, by, 220. 
 replevin, how requisition to be executed by, 218, 219. 
 replevin, power of, in executing requisition, 219, 233. 
 replevin to keep in possession of property, when and how to deliver same, 
 
 219. 
 replevin, care of property, 220. 
 replevin, when summons to be issued in, 228. 
 replevin, requisition to, 398. 
 replevin, return to, 398. 
 replevin or action to recover chattel, 343. 
 
 replevin, action against, by third person claiming title in, 227. 
 return by, presumptive evidence, 52. 
 
 return by, presumptive evidence in action against sureties, 389. 
 return of alias summons, 249, 371. 
 return attaching, 201. 
 return, failure to make, 392. 
 
 sheriff, certain laws in relation to, made applicable to, 397. 
 successor to, in New York city, 388. 
 summary proceedings, service of precept by, in, 390.
 
 5!) 2 Index. 
 
 Marshal, summons, sen-ice of, and warrant by, 198, 390, 395, 396. 
 
 summons, cannot serve, in his own case, 132, 139, 388. 
 
 summons, return of alias, 249, 371. 
 
 sureties in undertaking, may require them to justify when defendant 
 a nested, 388. 
 
 sureties on bond of, not liable until after valid judgment recovered against 
 him, 392. 
 
 sureties on bond of, not liable for indemnity money paid to, 392. 
 
 title by third person, claim of, action by, on undertaking given by third 
 person claiming, 398. 
 
 title by third person, claim of, action by third person claiming, in re- 
 plevin, against, 227. 
 
 title by third person, claim of, proceedings by, on, 227, 398. 
 
 transcript of judgment against, 390. 
 
 transcript of judgment against, may be filed with city clerk, 394. 
 
 undertaking given by third person on claim of title, action by, on, 398. 
 
 warrant of attachment granted, duty of, and how executed by, 389. 
 
 warrant of attachment, defaulting witness, 292. 
 
 warrant of attachment, defaulting witness, fees thereupon, 293. 
 
 warrant to, in action to foreclose lien on chattel, 237. 
 Master and servant, complaint for wages, 254. 
 Mayor to appoint marshal, 387. 
 
 to appoint justice to fill vacancy, 16. 
 
 appointing power, 387. 
 
 must be in writing, 387. 
 
 removal of marshal by, 389, 396. 
 
 suspension of marshal by, 396. 
 
 city clerk to report canceled bond to, 395. 
 Mechanic's lien, action, requisites of complaint, 255. -" 
 
 jurisdiction of action to enforce, 68. 
 
 proceedings for enforcement of, 69. 
 
 complaint in action to enforce, 69. 
 
 costs and disbursements, 69, 439. 
 
 equitable action, 69. 
 
 execution, form of, 358, 367. 
 
 judgment, execution, sale, 69, 340. 
 
 summons in action, may be served anywhere in the State, 105. 
 
 trial of action, 69. 
 
 service of summons, when made, 132. 
 
 proceeding on return of summons, 249. 
 
 order of arrest, when may be granted, 162. 
 
 offer to pay into court on, 251. 
 
 return day of summons and proceedings, 141. 
 
 transcript of judgment, 359. 
 
 when personal service of summons cannot be made, 134.
 
 Index. 593 
 
 Medical expenses, complaint for, 255. 
 Merchandise, interpleader, 284. 
 Merits of action on attachment, 204. 
 
 when judgment dismissed on, 343, 344. 
 Mileage fees of witness, 292. 
 
 Milk and cream cans, plaintiff may elect district in which to commence ac- 
 tion, 121. 
 
 who may sue for recovery of, 153. 
 Minor. (See Infant.) 
 Misdemeanor, justice liable for, 12. 
 Misjoinder, defense of, 201. 
 
 ground of demurrer, 267. 
 Misrepresentations, fraud, 72. 
 Misnomer in pleading, 200. 
 
 in contempt proceeding, 102. 
 
 when waived, 277. 
 Mistakes, omissions, defects, nd irregularities, and general rules respecting 
 affidavits, bonds and undertakings, 52, 91, 171, 193, 207, 212, 223, 331, 
 409. 
 
 in name of witness in commission, 301. 
 
 in warrant of attachment, 205. 
 
 in name of defendant, waiver, 273. 
 Mitigation of damages, pleading, 260. 
 Money, deposited, accounting, jurisdiction in action for, 47. 
 
 had and received, 47. 
 
 failure to pay into court is contempt, 102. 
 
 replevin for, 61. 
 
 loaned, complaint for, 255. 
 
 had and received, complaint for, 255. 
 Monuments, tombstones, lien on, 67. 
 Motion, to discharge or vacate from arrest, 176, 179. 
 
 when can be made, 180. 
 
 to vacate attachment, when it can be made, 205. 
 
 to strike out evidence, 333. 
 
 notice of, to set aside verdict, may be waived, 333. 
 
 to vacate or amend judgment, and to set aside verdict, 71, 81, 352. 
 
 within what time, 352. 
 
 to dismiss appeal, 415, 420. 
 
 for restitution of property upon reversal on appeal, 419. 
 Municipal Court of the City of New York, 5. 
 
 ereated, 6. 
 
 not a new court, 7. 
 
 constitutionality of, 7. 
 
 sessions of, to be held in each district, 16. - 
 
 38
 
 594 Index. 
 
 Name. (See also Fictitious.) 
 
 fictitious, in summons, 123. 
 
 change of. in summons, 125. 
 
 want of, in summons, 125. 
 
 inserting real, in summons, 125. 
 
 mistake in, 126. 
 
 unknown, 126. 
 
 single letter, 126. 
 
 striking out, 126. 
 
 of justices, clerks, court officials, and marshals, with their residences, xxv. 
 
 of the city of New York, 5. 
 
 of defendant, waiver of mistake in, 273. 
 Necessaries of infant, 45, 46, 255. 
 
 furnished wife, complaint for, 255. 
 
 married women's, 46. 
 Negligence, abuse of horse, 74, 75. 
 
 careless driving, 74. 
 
 collision between car and vehicle, 74. 
 
 contributory, 74. 
 
 crossing street, 74. 
 
 dumbwaiter, dangerous condition of, 76. 
 
 elevator, care of, 76. 
 
 excavation unguarded, 77. 
 
 exploding siphon, 79. 
 
 falling bricks, 75 
 
 horse and wagon, 75. 
 
 imputed, 75. 
 
 injury to property and injury to person, one not a bar to recovery on the 
 other, 75. 
 
 landlord and tenant, agreement, 75. 
 
 landlord and tenant, ceiling falling, 75. 
 
 landlord and tenant, water, leaking pipes, 76. 
 
 landlord and tenant, roof leaking, 77. 
 
 liability of, bailee for, 43. 
 
 medical expenses may be recovered, 76. 
 
 of physician, 77. 
 
 protection of person on premises of another, 77, 78. 
 
 bailment, assault and battery, 76, 82. 
 
 roof leaking, 77. 
 
 servants, 77. 
 
 stopping runaway horse, 77. 
 
 visitor to an apartment-house, 78. 
 Negotiable paper. (See also Note.) 
 
 action upon lost, 47. 
 
 proof of lost, 333.
 
 Index. 595 
 
 New action, in answer of title, 280. 
 
 action, cause of, defense, amendment, 273. 
 
 matter, defense of, 260, 261. 
 New trial, for fraud or newly -discovered evidence, 354. (See Verdict; Trial.) 
 
 costs on, 451. 
 New York. (See City of New York.) 
 Nonjoinder, defendant must plead or cannot raise objection of, on trial, 333. 
 
 defense of, 261. 
 
 of parties, demurrer, 267. 
 Nonresident, when clerk is not a, 121. 
 
 corporation, when not a, 121. 
 
 who are, 121, 122. 
 
 as to place of business, 122. 
 
 cannot sue as poor person, 155. 
 
 attachment against, 205. 
 
 attachment may issue against, of the city of New York, 19^ 
 
 affidavit as to, to procure attachment, 189. 
 
 witness, privilege of, 290. 
 Nonsuit. (See also Complaint.) 
 
 authorized, when, 341. 
 
 cause of action for arrest and contract, 342, 343. 
 
 counterclaim, 342. 
 
 dismissal of complaint, unverified answer, 342. 
 
 failure to appear on adjourned day, 342. 
 
 failure of proof, what deemed, 342. 
 
 voluntary, when, 341. 
 Nota^r Public, when certificate of, is evidence, 333. 
 
 in case of death, et cetera, how proven, 333. 
 Notes, promissory, lost negotiable paper, action upon, 47, 333. (See also 
 Negotiable Paper.) 
 
 accommodation, usury, 48. 
 
 replevin for, 61. 
 Notice by defendant, requiring return of chattels in replevin, 222. 
 
 by plaintiff's agent in replevin, requiring return of chattel, 217. 
 
 by marshal, requiring indemnity on claim of title by third person, 226. 
 
 of appearance by attorney in writing, to be filed to obtain costs, 440. 
 
 of application for commission, 296, 297. 
 
 of application for deposition, 306. 
 Notice of lien, 67. 
 
 of application to vacate, et cetera, attachment, 202. 
 
 of motion, should specify irregularities, 204, 214. 
 
 to produce, 290, 294. 
 
 Oath of justice, 14. 
 
 justice may administer, et cetera, 105. 
 
 as to administration of an, and general mode of swearing, 334. 
 
 to marshal, 389. 
 
 to juror, 330, 334.
 
 596 Index. 
 
 Objection to jurisdiction, when, and when may be taken, 84. 
 
 to sufficiency of bond on attachment, when to be made, 201. 
 
 to irregularity, when to be taken, -J 14. 
 
 by demurrer, to complaint, 208, 200. 
 
 to evidence and testimony in commission, 302, 303, 309, 310. 
 
 must be taken on the trial, 1-12. 
 Offer to allow judgment or compromise, 250. 
 
 to allow judgment after removal of action, 01, 250. 
 
 to allow judgment after removal on appeal, 404. 
 
 to restore property, 61. 
 
 of undertaking on removal, jurisdiction arrested, 90. 
 
 acceptance of, 250, 251. 
 
 oral acceptance of, 251. 
 
 when oiler may be made, 250. 
 
 judgment on, 250. 
 
 judgment cannot be given in evidence if not accepted, 250. 
 
 judgment, deposit of amount of, with clerk, 250. 
 
 to pay into court in mechanic's lien cases, 251. 
 Office, continuance of justice in, 10. 
 
 extending term of, of justice, 15. 
 
 terms of election of justices, 15. 
 
 vacancies in, of justice, 10. 
 Officer, liability of, 59. 
 
 liability of, for an escape, 59. 
 
 liability of, for an escape, return of prisoner, 59. 
 
 of sheriff, disqualified from being bail or surety, 224. 
 Omission respecting affidavits, bonds, and undertakings, 52, 91, 171, 193, 207, 
 212, 223, 331, 409. 
 
 undertakings, 52-91, 171, 193, 207, 212, 223, 331, 409. 
 
 to serve notice of appeal, how supplied, et cetera, 400, 408. 
 
 of evidence in return on appeal, remedy, 414. 
 
 to plead, is not an omission, 249. 
 Oral examination of witness on taking deposition, 310. 
 
 questions taking testimony by commission, 296. 
 Order, for contempt, requisites of, et cetera, 102, 103. 
 
 service of, failure to obey, 103. 
 
 for substituted service, 133, 134. 
 
 how service of, in such case made, 135. 
 
 on petition by poor person to be filed, 157. 
 
 when may be annulled, in such case, 157. 
 
 defendants, in such case, 158. 
 
 leave may be annulled as in case of plaintiff, 158. 
 
 of arrest, in what cases granted, 161. 
 
 of arrest, where may be made, 162. 
 
 of arrest, statements in, 181. 
 returnable on Sunday is a nullity, 352.
 
 Index. 597 
 
 Order, to prosecute marshal's bond, costs on, 457. 
 
 when appeal from, may be taken, 399. 
 
 when appeal from final, may be taken in summary proceedings, 399. 
 
 of substitution, in case of death of party pending appeal, 419. 
 
 reference, no jurisdiction to make, 84. 
 
 to show cause must specify irregularities, 204, 214. 
 
 on noncompliance or not furnishing bill of particulars, 244. 
 
 interpleader, 282, 283, 284. 
 
 suppressing deposition, 302, 303. 
 Order of arrest. (See Arrest.) 
 
 summons in, must be made returnable immediately, 141. 
 
 must be directed to and served by marshal, 389. 
 Ordinance, corporation, where action to be brought, 120. 
 
 of cities, villages, et cetera, may be read in evidence, 334. 
 Original papers, motion to vacate attachment upon, 205. 
 Ownership, what is sufficient allegation of, 214. 
 Oysters out of Harlem river, penalty for taking, 57. 
 
 Parent claiming wages of infant must notify employer, effect of notifica* 
 tion, 46. 
 
 right of, to bring action for wages of child, 151. 
 Partner, surviving, joinder of, demurrer, 267. 
 
 firm name, suit by, 255. 
 Partners, cannot arrest each other, 162. 
 
 fraud by, arrest for, 166. 
 
 how judgment rendered against, 362, 364. 
 Partnership, action to recover money arising out of, 47. 
 
 counterclaim, 263. 
 Parties, appearance of, 144. 
 
 who may be joined as. 80, 151, 152, 245. 
 
 defendants jointly liable, 153. 
 
 defect of, ground of demurrer, 267. 
 
 action against joint debtors not served, 154. 
 
 where employee is a party, 154. 
 
 when, can and cannot be examined, 334. 
 
 when prevailing party to recover costs, 437. 
 
 when neither party to recover costs, 439. 
 
 confined in prison, taking deposition, 306, 308. 
 
 costs to either party, 440. 
 
 when party not allowed fees as a witness, 455. 
 
 appeal when adverse party has died, 417. 
 
 proceedings when party dies pending appeal, 418 
 
 order of siibstitution in such ca*e, 419. 
 
 relation of, 73. 
 
 misjoinder of. ground of demurrer, 267. 
 
 nonjoinder of, ground of demurrer, when. 207: 
 
 surviving partner, ground of demurrer, when, 267.
 
 598 Index. 
 
 Payment, sotting up. amendment, 273. 
 Penalty, action to recover a, jurisdiction in, 56. 
 
 action, where to be brought to recover, 58. 
 
 justice to fix amount, 11. 
 
 Building Code, violation of, 56. 
 
 bureau for recovery of, 56. 
 
 commissioner of docks, 56. 
 
 department of health, action to recover, 57. 
 
 fish-poles, penalty for driving, 57. 
 
 indorsement, on summons in action to recover, 58. 
 
 oysters, taken out of Harlem river, 57. 
 
 pilot commissioners, 57. 
 
 port warden, 57. 
 
 steamboats, 57. 
 People of the State, verification by, 270. 
 Perjury is contempt of court, 100. 
 Person. (See also Poor Person.) 
 
 jurisdiction in action to recover damages for injury to, 73. 
 
 jurisdiction and injury to property, one does not bar recovery on the 
 other, 75. 
 
 personal service of process, 207. 
 
 on premises of another, protection of, 77. 
 
 visitor to apartment-house, injury to, 78. 
 Petition for leave to prosecute as poor person, 155-158. 
 
 when can be made, 155. 
 
 contents of, 156. 
 
 when not sufficient, 156. 
 
 to be filed, 157. 
 Physician, action for negligence of, 77. 
 
 father liable' to, for services of infant by, 46. 
 
 penalty for giving false certificate to juror, 318. 
 
 not to disclose professional information, 334. 
 Pilot commissioners, fines and penalties for, 57. 
 Pilotage fees, action to recover, 57. 
 Plaintiff, in what district action must be brought against, 119. 
 
 consent of. to transfer action, 120. 
 
 may elect district in which to commence action regarding milVc and cream 
 cans. 121. 
 
 poor person, 155. 
 
 leave may be annulled in such case, 158. 
 
 marshal to notify in arrest cases, 172. 
 
 cannot take judgment by default without verified complaint, 327. 
 
 failure to appear and dismissal of action, 334. 
 
 allowed latitude in examination of adverse witness, 337. 
 
 costs, when allowed to the, 440, 441.
 
 Index. 599 
 
 Plaintiff, must prove his case, except on contract where there is a verified 
 complaint, 248. 
 must prove his case, no verified complaint, 248. 
 must prove his case, omission to plead is not an admission, 249. 
 Plead, omission to, is not an admission, 249. 
 
 Pleading, 240-284. (See also Answer; Complaint; Demurrer; Counterclaim; 
 Reply.) 
 amendment of, 41, 266, 272. 
 amendment of, after removal of action, 93. 
 administratrix and individually, 245. 
 attachment, 205. 
 adjournment, default, 249. 
 alias summons, return of marshal, 249. 
 amendment of, costs on, 272, 444. 
 answer. (See also Answer.) 
 answer, what to contain, 242, 257. 
 answer, affirmative defenses, what must be pleaded, what cannot be 
 
 proven under a general denial, 258. 
 answer of title, 278-283. (See Answer of Title.) 
 abbreviations in, 242. 
 
 bill of particulars, 243, 244. (See also Bill of Particulars.) 
 bond, breach of and assignment, 246. 
 bastardy bonds, 178. 
 construction of, 243, 253, 274. 
 construction of, to be liberal, 274. 
 
 causes of action, to be separately stated and numbered, 252. 
 contract, several breaches of one, 246. 
 contract and tort, 246. 
 contract, express or implied, 245, 253. 
 conversion and freight, 246. 
 counterclaim, what can be joined, 247. 
 chattels, with or without damages, 247. 
 claims against a trustee, 247. 
 
 claims arising out of the same transactions, et cetera, 247. 
 complaint, 251. (See Complaint.) 
 complaint need not be verified, 249. 
 conclusions of law not to be pleaded, 252. 
 counterclaim, 262-266. (See Counterclaim.) 
 condition precedent, how pleaded, 274. 
 deceit, judgment in action for, 249. 
 demurrer, 266-270. (See Demurrer.) 
 defendant may offer to allow judgment on compromise, 250. 
 
 when offer may be made, 250. 
 
 removal and appeal, effect of offer, 250. 
 
 oral acceptance, 251. 
 
 offer to pay into court in mechanic's lien cases, 250.
 
 COO Index. 
 
 Pleading, English, to be in, 242. 
 
 extending time to answer, demur or plead, 241, 242. 
 
 exhibit of accounts at instance of adverse party may be ordered, 271, 272- 
 (See Bill of Particulars.) 
 
 facts not fictions must be pleaded, 253, 254. 
 
 hypothetical or alternative not allowed, 253. 
 
 injuries to property, 246. 
 
 injuries to property and fraud, 246. 
 
 immaterial variance in, to be disregarded, 275, 329. 
 
 includes complaint, answer or demurrer, 241. 
 
 indorsement upon the summons, 249. 
 
 interpleader by order, in certain cases, 282-285. (See Interpleader.) 
 
 judgment, how pleaded, 260, 274. 
 
 material variance, how provided for, 275. 
 
 mechanics' liens, proceedings on return of summons, 249. 
 
 misnomer, when waived. 277. 
 
 money lent and fraud, 246. 
 
 may be oral or in writing, 241. 
 
 may be verified or not, 241. 
 
 omission to plead, 249. 
 
 on joinder of issue, 241. 
 
 objections to, on trial, 334. 
 
 personal injuries. 246. 
 
 penalties, may be joined with other action, 247. 
 
 promissory note and collateral, 246. 
 
 plaintiff to prove his case except on contract, where complaint verified, 248. 
 
 private statute, how pleaded, 256, 273. 
 
 parties, who may be joined, 245, 246. 
 
 reply not necessary in this court, 244, 269. 
 
 requirements concerning, verified, 270. (See Verification.) 
 
 removal of action in, 95. 
 
 service of, 244. 
 
 service of summons upon attorney, when sufficient, 249. 
 
 special damages, 246. 
 
 unauthorized issue of summons, 249. 
 1 verification, 245, 270, 271. 
 
 what must be specially alleged, 256, 257. 
 
 Avhat causes of action may he joined in the same complaint, 245. 
 
 what must appear upon the face of the complaint to join causes of action, 
 245, 248. 
 
 when to be deemed a failure of proof, 275. 
 
 when proof of corporate existence necessary, 276. 
 Pledgee, when liable for conversion, 44. 
 
 Policeman may serve process. < t cetera, in health department cases, 139 
 Poor person, as to who may prosecute, et cetera, 123. 
 
 who may petition for leave to prosecute as, 155.
 
 Index. 601 
 
 Poor person, defined, 155. 
 
 application, when can be made, 155. 
 
 guardian cannot sue as, 155. 
 
 infant can sue as, 155. 
 
 wealth of guardian ud litem, no answer to motion, 155. 
 
 nonresident cannot sue as, 155. 
 
 jury fees, 155, 453. 
 
 practice on removal of action by, 155. 
 
 statute to be strictly construed, 156. 
 
 contents of petition, 156. 
 
 when not sufficient, 156. 
 
 on removal of action, new order to prosecute as a, must be obtained, 95. 
 
 order and petition to be filed, 157. 
 
 when counsel assigned, 157. 
 
 when leave may be annulled, 157. 
 
 agreement with attorney, 157. 
 
 when defendant may defend as a, 157. 
 
 defendant's order, 158. ■ 
 
 leave may be annulled as in case of plaintiff, 158. 
 
 appeal by, 159. 
 
 costs in favor of petitioner, 159. 
 
 stay, nonpayment of costs, 159. 
 
 may prosecute without paying jury fees, 315, 453. 
 
 costs on former application, 439. 
 
 to pay no fees except when jury trial demanded, 453. 
 
 nurse, as to costs, et cetera, 453. 
 Port wardens, action to recover penalty for, 57. 
 Possession of property in action of replevin, 61. 
 
 of property, right of, 215. 
 
 of property in replevin, 258. 
 Power of court limited. 42. (See Court.) 
 Powers of justice, 10, 12. (See Justice.) 
 Practice, rules of, adopted by board of justices, 109. 
 Preface, iii. 
 
 Private statute, how pleaded, 256, 273. 
 Privilege, from arrest, when entitled to be discharged, et cetera, 181. 
 
 attorney, when privileged from arrest, 182. 
 
 of witnesses, 290, 291. 
 Proceeding. (See Action; Special Proceeding.) 
 
 court may grant stay of proceeding, 354. 
 
 when party dies pending appeal. 418. 
 
 appeal when adverse party has died, 417. 
 Process, commission to take testimony regarded as, 296. 
 
 erroneous, irregular, or void, 12. 
 
 personal service of, 206, 
 
 service of, may be made in any part of the city oi New York, 105. 
 
 mechanic's lien action — anywhere in the State, 105.
 
 602 Index. 
 
 Process, to be served and executed by marshal, 1G0, 389. 
 
 within city limits, 390, 397. 
 Promise, when not a fraud, 72. 
 Promissory notes, lost negotiable paper, action upon, 47, 251. 
 
 replevin for, 61. 
 
 complaint in action upon bills and notes, 251, 252. 
 Proof, what to be deemed a failure of, 2.17k 
 
 corporate existence when necessary, 276. 
 
 variance between bill of particulars and, 244. 
 
 of fraud, 72. 
 
 of knowledge, 73. 
 
 and pleading, variance, 275. 
 Property. (See also Title to Real Property.) 
 
 injury to, and to person, one does not bar recovery on the other, 75. 
 
 consequential damages, 82. 
 
 hiring of, when no action can be brought on, 85. 
 
 in legal custody, 211. 
 
 description of, in replevin action, 214, 223. 
 
 injury to, defined, 74. 
 
 interest in, 60, 62. 
 
 offer to restore, 01. 
 
 possession of, in replevin, 61. - 
 
 accidentally destroyed, replevin for, 61. 
 
 artisan's lien on, 63. 
 
 out of the county, replevin for, 62. 
 
 wife's, 02. 
 
 exempt from levy, et cetera, what is, 194, 307, 389. 
 
 real, bound for ten years when transcript filed, 360. 
 
 right of possession of, 215. 
 
 exemption of, on execution, not necessary for creditor to claim, 372. 
 
 enforcement of lien upon personal, 240. 
 
 value of,, to be stated in affidavit in replevin, 215. 
 
 value of, or special property in, to be fixed by judgment or verdict in 
 replevin, 230. 
 Provisional remedy, attachment usually a, 200. 
 Public officer, verification by, 270. 
 
 officer, personal attendance as witness not required, 291. 
 
 policy, agreement to go bail not against, 224. 
 Punishment for disobeying order to take deposition of witness conditionally, 
 307. 
 
 Qualification of justices, 13, 223. 
 
 of jurors, 318. 
 Queens, borough of, names of the justices, clerks, court officials, and marshals, 
 with their residences, days, places of holding court, and telephone num- 
 ber, xxxii. 
 districts in the borough of, 37, 38.
 
 Index. 603 
 
 Reargument of appeal, 432. 
 
 Records not to be removed by subpoena, 291. 
 
 Referee, this court has no power to appoint, 84. 
 
 Reference, no jurisdiction to make order of, 84. 
 
 Relation of parties, 73. 
 
 Relations Law, Domestic, 47. 
 
 Relationship of counsel, 10. 
 
 of justice, 11. 
 Relief, no affirmative, on ground of fraud, 86. 
 Removal or death of justice, not to impair proceeding, 13, 113. 
 Removal of action, S6-95. 
 
 in borough of The Bronx, or any district in the borough of Manhattan, to 
 the City Court of the city of New York, 87. 
 
 in any other district, to the County Court, or Supreme Court, 87. 
 
 adjournment, waiver of right of, after, 92, 93. 
 
 adjournment for justification of sureties in undertaking on, 93. 
 
 amendment of pleadings after, 93. 
 
 amendment of undertaking on, 88. 
 
 amount, interest on claim, 89. 
 
 amount of recovery limited as in court below, after, 93. 
 
 amount more than $250 may be recovered after, 94. 
 
 answer, supplemental on, 92. 
 
 application must be made before adjournment, 87, 88, 92. 
 
 clerk must deliver papers to clerk of court, 87. 
 
 consolidation of actions on, 89. 
 
 constitutionality of the statute, 89. 
 
 costs on, 89. 
 
 costs, security for, after, 95. 
 
 damages, or value of chattel, must exceed $250, 87, 89. 
 
 defendants must all unite in, 87. 
 
 defendants, when have been made parties to prevent proceedings, 87. 
 
 increase of amount after, 94. 
 
 increasing amount sued for, 91. 
 
 improper, 94. 
 
 issues, no change of, after, 95. 
 
 jurisdiction and practice on, 94. 
 
 mandamus to order, 91. 
 
 mistakes, omissions, defects, irregularities, and general rules respecting 
 affidavits and undertakings, 52, 91, 171, 193, 207, 212, 331, 409. 
 
 offer to allow judgment on, 91, 250. 
 
 pleadings on, 94, 95. 
 
 pleadings, amendment of, after, 93. 
 
 poor person, action ; practice on, 155. 
 
 poor person, new order after, 95. 
 
 proceedings after, 93.
 
 604 Index. 
 
 Removal of action, remanding for amendment, 92. 
 
 recovery, none beyond amount in City Court, 95. 
 
 status of action after, 92. 
 
 stay of proceedings in this court by Supreme Court, 92. 
 
 security for costs after, 95. 
 
 supplemental answer after, 95. 
 
 undertaking on, 87. 
 
 undertaking on. insufficient, 91. 
 
 undertaking, tender of. on, 92. 
 
 undertaking, tender of, on, ceases jurisdiction, 85, 90. 
 
 undertaking, defective, remedy for, after, 94. 
 
 undertaking, duty of justice on approving, 90. 
 
 undertaking, remedy, if justice refus* to accept, 90. 
 
 undertaking, estoppel, waiver of jurisdiction by giving, 90. 
 
 undertaking, exception and justification of sureties on, 91. 
 Rent due on holiday, 48. 
 Renewal of execution. (See Execution.) 
 Repeal, when earlier law repealed, 466. 
 
 laws repealed, 467. 
 
 schedule of laws repealed. 467. 
 
 Greater New York Charter, 467. 
 
 Consolidation Act, 468. 
 
 Code of Civil Procedure, 473. 
 
 table showing disposition of laws, 474. 
 Replevin, 208-235. (See also Chattel.) 
 
 action, joinder of, with others, 236. 
 
 action, what based upon, 59. 
 
 action, when lies, 59. 
 
 action upon undertaking in, 53. 
 
 action, discontinuance of, sureties in undertaking liable on, 50. 
 
 action, not affected by failure to reply, 235. 
 
 action upon, undertaking on, 234. 
 
 action against marshal on claim of third person, 227. 
 
 action to recover a chattel, 209, 211. 
 i additional undertaking, 217. 
 
 affidavit and undertaking by plaintiff, 211, 212, 216. 
 
 affidavit therefor, before commencement of action, 212. 
 
 affidavit, setting aside the, in, 215. 
 
 affidavit, additional or supplemental, allowed, 213. 
 
 affidavit, irregularity in. when waived, 214. 
 
 affidavit, when agent may make, 217. 
 
 affidavit, value of property must be stated in, 215. 
 
 allowance or approval of undertaking in, 212. 225. 
 
 amendments to undertaking in, 212, 217, 223, 225. 
 
 answer of title in third person, 228.
 
 Index. 605 
 
 Replevin, bailee and bailor, tender, 209. 
 
 care of property by marshal, 220. 
 
 chattels, when and to whom marshal to deliver, 225. 
 
 chattels, when and where to be returned, 222. 
 
 chattels, delivery of part of, to defendant, when, 222. 
 
 chattels, where several are to be, 216, 223. 
 
 claim of title by third person, proceedings thereupon, 226. 
 
 compensation of marshal in, 219. 
 
 complaint in, 210, 215, 230. 
 
 complaint, dismissal of, in, 233. 
 
 complaint, where chattel injured, 230. 
 
 custody and control of goods in, 60. 
 
 damages, how ascertained on default in, 231. 
 
 damages, when chattel injured, et cetera, by defendant, 229. 
 
 damages for value of chattels in, 60. 
 
 defendant's claim as to claim of third person, 227. 
 
 defendant may demand judgment for return of chattel, 228. 
 
 defendant, when to except to sureties, proceedings thereon, 221. 
 
 defendant may reclaim chattel, proceedings thereupon, 222. 
 
 delivery of property, how money recovered by same judgment may be 
 collected, 229. 
 
 demand before, 213, 214. 
 
 demand, when not necessary, 215. 
 
 detention after trial, 210. 
 
 detention, measure of damages, 230. 
 
 description of property in, 214, 223. 
 
 exemption of property from, 215. 
 
 estoppel of sureties by undertaking, 50, 51. 
 
 execution, contents of, in, 233. 
 
 execution, must have been returned unsatisfied before action can be main- 
 tained against sureties in undertaking on, 51. 
 
 exception to, and justification of sureties on undertaking in, 212, 217, 
 223, 224. 
 
 goods, mingling, 60. 
 
 injury, et cetera, no defense, 234. 
 
 irregularity in affidavit, waiver of, 214. 
 
 irregularity, objection, when, and how to be taken, 214. 
 
 indemnity to marshal against claim by third party, 228. 
 
 interest in property, 60. 
 
 judgment in, does not affect right of action to recover damages, 211, 230. 
 
 judgment or verdict, what to state, 230. 
 
 judgment or verdict, et cetera, for part of several chattels, 231. 
 
 judgment, final, et cetera, 232. 
 
 judgment, alternative, 232. 
 
 judgment, erroneous, 233.
 
 606 Index. 
 
 Replevin, jurisdiction in action of, 59. 
 
 jurisdiction to issue or vacate requisition to, 78. 
 
 marshal, power of, in, 219, 233. 
 
 marshal's return, evidence therein, 234. 
 
 marshal's proceedings on claim of third person, 227. 
 
 marshal to keep property in possession, when and how to deliver, 219, 
 
 220. 
 marshal's return to requisition by, 220, 234. 
 marshal, compensation of, 219. 
 marshal, owner taking property from, 219. 
 money, action to recover by, 61, 229. 
 mistakes, omissions, defects, and irregularities, and general regulations 
 
 respecting affidavits, bonds, and undertakings in, 52, 91, 171, 193, 207, 
 
 212, 214, 217, 223, 331, 409. 
 offer to restore property, 61. 
 ownership, sufficient allegation of, 214. 
 penalty for wrong delivery by marshal, 226. 
 
 what should be alleged in action for penalty for wrong delivery, 226. 
 possession of the property, 60, 61. 
 possession, right of, 215. 
 
 proceedings where summons not personally served, 235. 
 promissory notes and checks, 61. 
 
 property fraudulently acquired and disposed of, 60. 
 property accidentally destroyed, 61. 
 property, taking, from other than defendant, 210. 
 property, taking, out of the county, 62. 
 property, wife's, 62. 
 
 property, how executed, if property concealed, 219. 
 property, legal custody of, in, 211. 
 property, care of, by marshal, 220. 
 requisition of justice, 218. 
 requisition, action when no, 235. 
 requisition, action when no, how executed, 218. 
 reversal of judgment in action, 210. 
 sheriff, action against, to recover property, 62, 210. 
 surety may continue action of, 62. 
 surety, failure of plaintiff's to justify in, 221. 
 surety, effect of exception to plaintiff's, by defendant, 221. 
 surety, qualification of, 223. 
 surety, disqualification of, 223. 
 surety, justification of, 224. 
 surety, failure of, to justify, 224. 
 surety, further time to justify, 224. 
 surety company, 225. 
 surety, rejection of one, remedy, 225.
 
 Index. 607 
 
 Replevin, surety, exception to and justification of, 212, 217, 223, 224. 
 
 tenants in common, action by, 62. 
 
 title by third person, claim of, proceedings thereupon, 226. 
 
 undertaking, exception, and justification of sureties, 212, 217, 223, 224. 
 
 undertaking, plaintiff's, in, 211, 212, 216, 223. 
 
 undertaking, additional, 217. 
 
 undertaking, defective, remedy, 217. 
 
 undertaking in action in, 53. 
 
 value, special interest, 62. 
 Reply, no provision for, 241, 244. 
 
 to counterclaim not necessary, 269. 
 Report of commission on revision, xix. 
 Requisition of justice for replevin, 218. 
 
 of justice for replevin, how executed, 218. 
 
 of justice for replevin, return of marshal to, 220. 
 
 no, action to recover a chattel may be maintained, 235. 
 Representative capacity, complaint in, 256. 
 
 counterclaim, 265. 
 Respondent, service of notice of appeal on, 407. 
 Restaurant keeper, liability of, as bailee, 43. 
 Restitution, upon reversal on appeal, 419. 
 Return, 411-416. y 
 
 appeal, how made up, what to contain, et cetera, 411. 
 
 amending or correcting, 412. 
 
 amendment of, by justice, 412. 
 
 attacking, 413. 
 
 affidavits cannot be used to support a defective, 414. 
 
 conclusive on argument of appeal, 413. 
 
 contradictory statement in, 413. 
 
 contents of, 413. 
 
 defective, 414. 
 
 denial of service of summons, 414. 
 
 evidence excluded, 414. 
 
 evidence, omission of, in, remedy, 414. 
 
 extension, time to file, 415. 
 
 false, liability of justice for, 12. 
 
 failure to file, 415. 
 
 fee for nonpayment of, 415. 
 
 further, 415. 
 
 lost original or certified copy, 416. 
 
 motion to dismiss appeal for failure to file, 415. 
 
 marshal's, presumptive evidence, 52. 
 
 marshal's, to requisition for replevin, 220. 
 
 order to show cause to procure, amended, 415. 
 
 rules as to, on appeal, 416.
 
 608 Index. 
 
 Return, stenographer's minutes lost. 41ti. 
 
 summons, day of, pleading, et cetera, 241. 
 Revivor of action, 123. 
 
 Richmond, borough of, names of the justices, clerks, court officials, and mar- 
 shals, with their residences, days, places of holding court, and telephone 
 number, xxxiii. 
 
 districts in the borough of. 38. 
 Rules for examination, taking deposition conditionally, 309. 
 
 respecting affidavits, bonds, and undertakings, 52, 91, 207, 212. 
 
 respecting allowance of counterclaim, 203. 
 Rules of Practice, adopted by board <>f justices, 10!), 382. 
 
 of Supreme Court apply to this court, 117. 
 
 of courts of record, how made and revised, 117. 
 
 to be published, 117. 
 
 construction of. made by the court. 118. 
 
 disregarding, 118. 
 
 legality of. 118. 
 
 conflict with court decisions, 118. 
 
 as to return on appeal, 416. 
 
 Sale, action on conditional, agreement, et cetera, how brought, 237. 
 
 by sample, and goods manufactured according to specifications, 45. 
 
 conditional vendor and vendee in, 238. 
 
 conditional and reservations in contracts for sale of goods and chattels, 
 238. 
 
 conditional action to recover instalments on, 46. 
 
 conditional, when plaintiff may recover goods, 59. 
 
 conditional, exempt from lien, 64, 65, 67. 
 
 fraudulent, 73. 
 
 mechanic's lien action, 69. 
 
 of property to satisfy, 68. 
 
 written contract of, conditional, when no action can be brought on, 85. 
 Salary of justice, 14, 15. 
 
 execution on supplementary proceedings against justice, 15. 
 Sample, sale by, and goods manufactured according to specifications, 45. 
 Saturday, when court and clerk's office may be closed, 115, 382. 
 Saving clause of this act, 465. 
 Seal of the city of New York, 3. 
 
 court shall have official, 116. 
 
 what is sufficient sealing, 116. 
 
 when court to have new, 116. 
 
 presumptive evidence of consideration, 336. 
 
 to commission to take testimony, 296.
 
 Index. 609 
 
 Sections of the Code of Civil Procedure not applicable to this act, 466. 
 Security for costs as a condition for commission, 297. 
 
 in poor person case, 156. 
 
 when cannot be required in action removed, 297. 
 Seduction, no jurisdiction in action for, 73. 
 Service, of summons, is commencement of action, 122. 
 
 of alias summons, 128. 
 
 method of, of summons, 129. 
 
 on attorney of summons, not followed by appearance, confers no juris- 
 diction, 130. 
 
 upon managing agent of corporation, 130. 
 
 defects in affidavit of, may be amended, 131. 
 
 designated, 131. 
 
 on election day, 131. 
 
 fraud in, 131. 
 
 modes of serving summons, 133, 137. 
 
 substituted, of summons, 133, 137. 
 
 process cannot be served on Sunday, 133. 
 
 of summons, proof of. 13G. 
 
 admission of, and affidavit of, 137. 
 
 amendment of, affidavit of, 137. 
 
 of precept in summary proceedings, 139. 
 
 of summons and warrant on defendant in attachment case, 198. 
 Services, jurisdiction in action to recover for loss of, 73. 
 Settlement of case on appeal, 416. 
 Set-off, 261. 
 
 of costs and recovery on appeal, 420. 
 Sheriff. (See Marshals.) 
 
 action against, 62, 210. 
 
 and their officers, disqualified from being bail or surety, 224. 
 Slander, no jurisdiction in action for, 73. 
 
 Society of husband or wife, no jurisdiction in action for loss of, 73. 
 Special proceeding. (See Action; Proceeding.) 
 
 process in, may be served in any part of the city of New York, 105. 
 
 may be continued from day to day, 113. 
 
 may be continued before another justice, while action cannot be, 326. 
 Stallions, lien on, for services, 68. 
 Stay of proceedings, disregard of, is contempt of court, 103. 
 
 of proceedings for nonpayment of costs, in poor person case, 159. 
 
 of proceedings, court may grant, not to exceed five days, 354. 
 
 of proceedings, undertaking on appeal, 410. 
 
 of proceedings, effect of the stay, 411. 
 
 of execution, jurisdiction to grant or vacate, 78. 
 
 of proceedings by Supreme Court in this court, 92. 
 
 39
 
 610 Index. 
 
 Statute, construction of, as to appeals, 401. 
 
 of Frauds, 48. 
 
 as counterclaim, 263. 
 
 defense of, 258. 
 
 of Limitations, six years, 55. 
 
 of Limitations must be pleaded, 258, 263. 
 
 of Limitations pleaded, how must be, 261. 
 
 short, wage-earner, 368. 
 Statutory Construction Act, 141. 
 
 liens, 68. 
 Steamboat, actions to recover penalties and fines, 57. 
 Stenographer to be appointed by justice and removed for cause, 376. 
 
 ptriod of appointment of, 376. 
 
 salary of, 376. 
 
 fees of, 378, 455. 
 
 contempt, when in, 103, 455. 
 
 minutes of, when must be furnished, 455. 
 
 no copy minutes for justice not taxable, 455. 
 
 must furnish clerk minutes of evidence for return on appeal, 411. 
 
 when minutes lost, remedy on appeal, 410. 
 Stipulation that justice have additional time to decide case, 317. 
 
 hearing on appeal, dismissal, reversal on stipulation, 420. 
 Storage, private, no lien for, 67. 
 
 enforcement, 68. 
 Subject-matter, consent and jurisdiction, 41. 
 
 jurisdiction of, 84. 
 Submission of controversy upon facts admitted, 338. 
 
 of controversy upon facts submitted, 42. 
 
 papers to be filed, 339. 
 
 subsequent proceedings regulated, 339. 
 Subpoena. (See Witness.) 
 
 witness to testify, 288, 290, 292, 293. 
 
 duces tecum books, et cetera, 289, 291. 
 
 records not removed by virtue of, 291. 
 
 how served, 291. 
 
 production of books of account, 291. 
 
 refusal to produce papers under, when contempt, 104. 
 
 to witness, commission to take testimony within the State, 106. 
 Substituted service of summons, 133. 
 
 order for, 133. 
 
 affidavit to obtain order for, 134. 
 
 amendment, error in name, 134. 
 
 upon infant's, 134. 
 
 irregularity, misnomer, 134. 
 
 mechanic's actions, 134. 
 
 how service must be made, 135.
 
 Index. 611 
 
 Substituted service, papers to be filed, proof of service, 135. 
 
 defendant, when allowed to defend, i36. 
 
 when defendant in default. 141. 
 
 not at defendant's residence, 84. 
 Summary proceeding, jurisdiction of, 70. 
 
 jurisdiction to make final order in. 78. 
 
 petition and answer may be amended, 70. 
 
 trial, with or without a jury, 70. 
 
 verdict may be directed or set aside, 70, 71, 81. 
 
 appeal from final order in, 399. 
 
 a new trial may be granted or denied, 70. 
 
 appeal therefrom, 70. 
 
 note on, 382. : 
 
 equitable defense may be set up in, 85, 86. 
 
 fees in, 458. 
 
 counterclaim allowed in, 2G3. 
 
 service of precept in, 139, 390. 
 Summons, 124-127. 
 
 affidavit of service of, 137. 
 
 attorney may serve, 137. 
 
 attachment will be vacated if papers not with summons, 206. 
 
 attachment, service of, to acquire jurisdiction of, 82. 
 
 attachment allowed, issued, and served before Bervice of, is completed, 
 186. 
 
 amendment of, 85, 124, 125, 126. 
 
 alias, service, 128, 129, 390. 
 
 alias, return of marshal on, 249. 
 
 bastardy and abandonment bond action, new, 129, 277. 
 
 change of name in, 125. 
 
 corporation counsel may issue, 127. 
 
 cannot be served on Sunday, 133. 
 
 designation by resident of person upon whom to serve, during absence 
 from the city, 18S. 
 
 execution against person, where, may issue, 143. 
 
 fictitious name should appear in, 84, 123, 125, 249. 
 
 fictitious, unauthorized, 249. 
 
 form of, 120. 
 
 fraud in service of, void, 131. 
 
 irregular, if served by plaintiff, 139. 
 
 indorsement on, where execution against person, 346, 382. 
 
 indorsement on, in action to lecover penalty, 58, 142, 143. 
 
 if not indorsed, no jurisdiction acquired, 85. 
 
 joining issue on return day of, 241. 
 
 judgment against person not served with, remedy, 404, 406.
 
 612 Index. 
 
 Summons, jurisdiction not acquired, if not served, 132. 
 
 mechanic's lien action, summons may be served anywhere in the State, 105. 
 
 name, want of. in. 125. 
 
 name, insertion of real, in, 125. 
 
 requisites of, 124. 
 
 replevin in action against marshal in action by third person, on claim 
 of title in replevin, when to be issued, 227. 
 
 not personally served in action of, proceeding, 235. 
 
 return day of, 139. 
 
 service of, on defendant's attorney, 84. 
 
 service of, not a fact, 84. 
 
 service of, substituted, not at defendant's residence, 84. 
 
 service of, substituted service, order for, et cetera, 133. 
 
 service of, who may serve, 136. 
 
 service of, by plaintiff in his own case, cannot be done, 133. 
 
 service of, and warrant in attachment case on defendant, 198. 
 
 service of. may be served in any part of the city of New York, 105. 
 
 service of, in any part of the State in mechanic's lien actions, 105, 132. 
 
 service of, is commencement of action, 122. 
 
 service of alias, 128, 129, 390. 
 
 service of, method, 129-133. 
 
 service of, on Sunday, void, 133. 
 
 service of, on election day, void, 131. 
 
 service of, on lunatic, void, 132. 
 
 service of, on holiday, legal, 132. 
 
 service of, by marshal, cannot in his own case, 132. 
 
 service of, on nonresident witness, 133. 
 Sunday, court not to be open on, 116. 
 
 process cannot be served on, 133. 
 
 extends from midnight to midnight, 141. 
 
 if last day to render judgment falls on, court to render judgment on pre- 
 ceding day, 313. 
 
 trial in court on, illegal and void, 10, 337-343. 
 
 order returnable on, is a nullity, 352. 
 Supplemental answer, 261. (See Answer.) 
 
 after removal of action, 92, 95. 
 Supplementary proceedings against justice, 15. 
 Supreme Court, removal of action to, when, 87. 
 
 stay of proceedings by. in this court. 92. 
 Sureties, liability of, 52. (See also Bonds; Undertakings.) 
 
 agreement to go not against public policy, 224. 
 
 adjournment for justification of, on undertaking, on removal of action, 93. 
 
 •cause of action, liable only for, 50. 
 
 disqualified, ir.\. 
 
 effect of defendant's exception to, in replevin action, 221.
 
 Index. 613 
 
 Sureties, exception to and justification of, 52, 91, 207, 223, 224. 
 
 joint and several liability, f>2. 
 
 liability of bail, debtor insolvent in action for an escape, 58. 
 
 marshal's return is presumptive evidence against, 52. 
 
 modification of contract with insurance agent discharges, 52. 
 
 qualification of, required by this act, 223. 
 
 return of prisoner in action for an escape against, 59. 
 
 replevin action, surety may continue, 62. 
 
 replevin action, failure to justify in, 221. 
 
 title to real property in question, liability of, 85. 
 
 sections applicable to undertaking, et cetera, 207. 
 Surety company may execute undertaking for replevin, which must be ap- 
 proved by the court, 210. 
 
 false swearing of, is contempt of court, 100, 101. 
 
 exception to, and justification of, 171, 182, 193, 331, 409. 
 
 agreement with, for deposit with trust company, 173. 
 
 company may act as, on undertaking on appeal, 409. 
 
 on undertaking on arrest, may be examined, 173. 
 
 return of marshal presumptive evidence in action against, 389. 
 
 amendment of undertaking on appeal, only with consent of, 409. 
 
 exception to, on appeal, 410. 
 
 liability of surety on undertaking on appeal, 410. 
 Swearing, false, is contempt, 100. 
 
 Talesmen, marshal to summon, 320. 
 Taxation of costs, 447. 
 
 by the court, marshal's fees, 448. 
 
 review of, 448. 
 
 duty of clerk on, 449. 
 Telephone number of court, xxv. 
 Tender of lien, 66. 
 
 payment into court, 261, 262. (See Pleading.) 
 
 undertaking on removal of action, 92. 
 Tenant. (See Landlord and Tenant.) 
 
 in common of chattel, action of replevin, 62. 
 Term of election of justices, 15. 
 
 of office of justice, continuance, 10. 
 
 of office of justice, finishing trial, 11. 
 
 of office of justice, extending, invalid, 15. 
 
 of office of justice, vacancies in, 16. 
 Testimony, commission to take, 295-304. 
 
 conditionally, deposition to take, 304-311 
 Time, computation of, 140. 
 
 essence of, waiver, 256. 
 
 law takes notice of fraction of day when there are conflicting rights, 358.
 
 614 Index. 
 
 Title, action for damages for vendor's breach of contract to convey, good, 48. 
 answer of, to real property in question, 170-283, 444, 440 (see Answer 
 
 of Title). 
 
 answer of. costs after discontinuance, 444. 
 
 action against marshal on claim of, by third person, 227. 
 
 answer of, by third person, 228. 
 
 answer in conditional sale agreement, 237. 
 
 complaint failing to show, to sue, 262. 
 
 claim of, by third person in replevin, 226. 
 
 claim of, by third person in replevin, proceedings of marshal on, 220, 227. 
 
 defendant's claim on claim of, by third person, 227. 
 
 when summons to be issued in such action, 227. 
 
 indemnity to marshal in such action, 228. 
 
 to real property in question, action upon undertaking, 53. 
 
 to real property in question, no jurisdiction, 85. 
 Tombstcne, lien on, 07. 
 
 Tort and contract, amendment of complaint, 273. 
 Transcript, amendmentof judgment after filing, 359^ 
 
 clerk, when, must enter in, the words " defendant liable to execution 
 against his person," 344, 382. 
 
 clerk not to issue, while execution remains unreturned, 357. 
 
 clerk to issue, how to issue, 358. 
 
 effect of filing, 359. 
 
 judgment of Supreme Court, when docketed by filing of, 358. 
 
 judgment less than $25, 301. 
 
 judgment docketed by the filing of a, 300. 
 
 judgment against marshal to be filed with county clerk, 305, 393, 394. 
 
 justice may give, of proceedings, ii. 
 
 mechanic's lien actions, 359. 
 
 plaintiff only has right to file, 359. 
 
 real property bound for ten years on judgment docketed by the filing of 
 a, 3t;0. 
 
 when presumptive evidence, 113. 
 Transfer of action, mandamus, 122. 
 Trial, 311-339. (See also Jury.) 
 
 adjournment of, 285-289, 323. 
 
 adjournment after return of jury, conditions, et cetera, 321. 
 
 admissions on the, effect of, 323. 
 
 amendment of pleadings on the, 323. 
 
 answer, failure to, on the, motion to dismiss, 324. 
 
 attorney cannot be deprived of his argument on the, 323. 
 
 affirmative of issue on the, who has, and who has not, 335, 336. 
 
 bill of particulars, 324. 
 
 challenge, peremptory, of jury on the, number of, 329. 
 
 challenge, grounds of, 329.
 
 Index. 615 
 
 Trial, complaint, motion to dismiss at close of case, et cetera, 331, 332. 
 
 complaint, motion to dismiss on opening of case, renewal at close of case, 
 332. 
 
 complaint, motion to dismiss, grounds must be stated, 332. 
 
 complaint, verified, not served, plaintiff cannot take judgment by de- 
 fault, 327. 
 
 corporate existence, when proof of, unnecessary, 326. 
 
 case closed, 324. 
 
 conduct of the, 322. 
 
 continuing, 326. 
 
 court may direct verdict, when, 70, 71. 
 
 counsel reading to the jury on the, 326. 
 
 costs, failure to pay on the, does not prevent, 287. 
 
 cross-examination, 327. 
 
 defendant's failure to appear, 327. 
 
 defendant, when under arrest, to be had immediately, 311. 
 
 discontinuance, 327. 
 
 drawing the jury for, 314. 
 
 docket, when evidence, 328. 
 
 employee suing employer, jury, 315. 
 
 exception to refusal to dismiss, grounds must be stated, 332. 
 
 evidence, when papers on file are, 324, 326, 337. 
 
 evidence, docket, when, 328. 
 
 evidence, objections to, grounds of, must be stated, 328. 
 
 evidence, order of, 328. 
 
 evidence, notary public's certificate, when, 333. 
 
 evidence of party may be rebutted, 328. 
 
 evidence, what is rebutting, 328. 
 
 evidence, foreign corporation, book of, when, 329. 
 
 evidence, foreign State, territory, or country, 329. 
 
 evidence, on testimony in former trial, when admissible, 329. 
 
 evidence, motion to strike out, 332. 
 
 evidence, official certificates, when, 334. 
 
 evidence, ordinances of cities, villages, et cetera, may be read in, 334. 
 
 evidence, printed copies of laws of another State may be read in, 335. 
 
 evidence, when certificate of public officer is, 335. 
 
 evidence, seal presumptive, of consideration, 336. 
 
 evidence, statute or resolution of the Legislature, how proved in, 336. 
 
 evidence, exhibits, 328. 
 
 from day to day, 287. 
 
 granting or denying new trial in summary proceedings, 70. 
 
 husband or wife, when competent and incompetent witnesses, 329. 
 
 inspection of premises, when may be had, 329. 
 
 interrupting, punishment, 90. 
 
 judgment, issue of fact and law, within what time to be rendered, 311. 
 
 judgment, where both parties move ffr, on, 328.
 
 616 Index. 
 
 Trial, judgment, estoppel of former, on, 328. 
 
 judgment, demand for prayer for relief not material, 327. 
 
 jurisdiction, to grant new, 81. 
 
 jurisdiction, objection to, must be taken at the, 84. 
 
 jurisdiction, objection to, must be taken for fraud or newly-discovered 
 
 evidence, 81. 
 jurisdiction, must be raised at the, 329. 
 jury, peremptory challenge upon, number of, 329. 
 jury, grounds of challenge of, 329. 
 
 jury, examination, swearing, and waiver of, on the, 330. 
 jury, instructions to the, 330. 
 jury, taking out papers, 331. 
 jury, withdrawing a, 331. 
 
 jury, disputed questions of fact for the, 328. 
 jury, improper statement to, 329. 
 jury, list of, to be furnished by the clerk, 317. 
 jury, qualifications, et cetera, of, 318. 
 jury, how summoned for, 319. 
 jury, ballots of, summoned but not drawn, 320. 
 jury, verdict of the, 321. 
 jury, dissent of, 322. 
 jury, polling the, 322. 
 jury, drawing the, 314. 
 jury, demand for, when to be made, 314 
 jury, employee suing employer, 315. 
 jury, of six, 314, 315. 
 jury, of twelve, 315, 318. 
 
 jury, court may direct, to find verdict, when, 10, 316. 
 jury, marshal in charge of, 330. 
 justice, expiration of term of office, 329. 
 justice, finishing, after term of office, 11. 
 justice, has power to order jury, 316. 
 justice, charge of, to jury, additional requests, 324. 
 mechanics' lien actions, 69. 
 motion for judgment by both parties, 328. 
 motion to dismiss at close of case, 331, 332. 
 motion to dismiss on opening of case and renewal at close, 332. 
 motion, waiver of motion to dismiss, 332. 
 marshal in charge of jury, 330. 
 negotiable paper, proof of loss, 333. 
 new trial, for fraud or newly-discovered evidence, 81. 
 nonjoinder, defendant not pleading cannot raise on the, 333. 
 objection to jurisdiction must be taken at the, 84. 
 objection to jury, when must be made, 331. 
 objection, necessity of, 325. 
 objection to evidence, grounds of, must be stated, 328.
 
 Index. 617, 
 
 Trial, objection and exception, 334. 
 
 objection to pleadings on the, 334. 
 
 oath to marshal, 330. 
 
 oath to jury, 330. 
 
 oath or affirmation, how administered, 334. 
 
 omission to charge jury, 325. 
 
 order of evidence, 328. 
 
 proceeding to, waives right of removal of action, 92, 93. 
 
 perjury, when false swearing is, 318, 325. 
 
 refusal to charge, 325. 
 
 re-quests to charge, 325. 
 
 retrial, 313. 
 
 Sunday, on, is illegal and void, 10, 337. 
 
 summary proceedings, 70. 
 
 summary proceedings, granting or denying new in, 70. 
 
 submission of controversy upon facts admitted, 338. 
 
 talesmen, 320. 
 
 verdict of jury, 321. 
 
 verdict, altering, 321. 
 
 verdict, when court may direct, 70, 71, 316, 327. 
 
 witness, when husband or wife competent and not competent, 329. 
 
 witness, conviction of crime not to exclude, 337. 
 
 witness, credibility of, 325, 326, 337. 
 
 witness, interested, swearing falsely, 325. 
 
 witness, limiting number of, 337. 
 
 witness, qualification of, 338. 
 
 witness, transactions with deceased, 338. 
 
 witness, when not excused from testifying, 338. 
 
 writing, disputed, comparison of, on the, 338. 
 Trustee in bankruptcy may bring action in replevin, 59. 
 
 Undertaking. (See also Bond.) 
 action upon surety, 49. 
 action on, to replevin chattel, 398. 
 action on, when maintainable, 49, 234. 
 action, discontinuance of, 50. 
 arrest and imprisonment, action on, 49. 
 arrest on order of, 169. 
 
 arrest on order of, right of action on, what may be recovered, 52, 53. 
 appearance in court, action on, 49. 
 
 amendment of, 49, 52, 89, 91, 94, 170, 193, 207, 212, 217, 223, 225, 331, 409. 
 amendment of, on appeal, 409. 
 attachment, liability of sureties on, 50. 
 allowance or approval of, 212, 216, 225. 
 answer of title, in, 279, 280. 
 answer, return of, in, 278.
 
 618 Index. 
 
 Undertaking, answer of title, penalty for failure to deliver, 281. 
 
 answer of title, action to recover chattel valid in new action, 282. 
 
 adjournment, on long, 287. 
 
 adjournment by arrested defendant on applying for, 175. 
 
 arrest of defendant, to be delivered to marshal, 172. 
 
 attachment, 192. 
 
 attachment to discharge, efl'ect of, 199. 
 
 attachment bond, and delivery on claim by third person, 199. 
 
 attachment, when insufficient, 199. 
 
 appointment of marshal deemed waived for failure to file bond, 395. 
 
 bail on, may he examined, 173. 
 
 bond to he executed by marshal, 390. 
 
 bond, city clerk to report canceled, of marshal, to mayor, 395. 
 
 bond, appointment of marshal deemed waived for failure to rile, 395. 
 
 bond, bastardy and abandonment, costs in action, and action on, 54, 437, 
 
 446. 
 bond, is synonymous with, 53. 
 bond, difference between bonds and, 53. 
 bond, of clerk, to be filed in comptroller's office, 374. 
 bond of marshal, 389. 
 
 bond of marshal, prosecution of, 389, 391, 393, 394. 
 bail on, may he examined, 173. 
 escape, sureties on, may be examined, 50. 
 estoppel of sureties by giving, 50, 51. 
 evidence to impeach, 51. 
 execution must have been returned unsatisfied to maintain action against 
 
 sureties in replevin, 51. 
 exempt property, seizure of. action on bond of constable for, 51. 
 justice, duty of, in approving, 90. 
 justice, remedy, if refuses to accept, 90. 
 lien, to enforce, on vessel, 54. 
 mistakes, omissions, defects, and irregularities in, 52, 91, 171, 193, 207, 
 
 212. 217, 331, 409. 
 marshal's return, evidence thereon, 234. 
 property, on title to, in question, 53. 
 
 property, on title to, in question, liability of surety on, 85. 
 replevin, action against sureties in, on, 50, 53, 234. 
 replevin, injury in such action no defense, 234. 
 replevin, plaintiffs, 211, 212, 216. 
 replevin, additional, 216. 
 replevin, defective, 217. 
 replevin by defendant, 222. 
 
 replevin by defendant, sureties must justify on return of summons, 222. 
 removal, undertaking on, 87. 
 removal, defective, remedy for, after, 94. 
 removal, action on, 53.
 
 Index. 619 
 
 Undertaking, removal, tender of, on, ceases jurisdiction, 85, 90. 
 
 removal, insuflicient, on, 91. 
 
 removal of action, justification of sureties, 93. 
 
 removal, tender of, 92. 
 
 stay, execution on judgment, 408. 
 
 surety, when title to real property comes in question, liability of, in, 85. 
 
 surety, on arrest, must justify if required by marshal, 3S8. 
 
 suretj', joint and several liability on, 52. 
 
 surety, joint and several, liability on appeal, 410. 
 
 surety, adjournment on justification on, 224. 
 
 surety, exception to and justification of sureties on, 51, 91, 171, 173, 193, 
 207, 212, 217, 331, 409. 
 
 sections applicable to, 51, 91, 171, 193, 207, 212, 217, 331, 409. 
 Use and occupation, complaint for, 256. 
 Usury, accommodation note, 47. 
 
 requisites of pleading, 262. 
 
 Vacancy, justice may hold court in district other than to which he was 
 elected, when vacancy exists, et cetera, 112. 
 
 in term of office of justice, 16. 
 Value, proof of, in action for conversion, 45. 
 
 of chattel, in action for replevin, 62. 
 
 of chattel or special property to be fixed by judgment in replevin, 230, 231. 
 
 special interest in property, 62. 
 
 of property to be stated in affidavit in replevin, 215. 
 Variance between proof and bill of particulars, 244. 
 
 between pleading and proof, amendment, 273. 
 
 immaterial, in pleading, 275. 
 
 material, how provided for, 275. 
 Vendor and vendee, conditional, 238. 
 Verdict. (See Trial.) 
 
 altering, 321. 
 
 application is one of right, 353. 
 
 bias, prejudice, or passion, 353. 
 
 court has power to direct or set aside, 71, 78, 346, 347. 
 
 defects cured by, 347. 
 
 direction of, by judge, when error, 327. 
 
 jury, by the, requisites, 321. 
 
 judgment upon, delay in rendering, 322. 
 
 motion to set aside, 71, 81. 
 
 motion to set aside, may be waived, 333. 
 
 motion to set aside, or vacate or amend judgment, how made, et cetera, 
 352. 
 
 new trial in furtherance of justice, 353. 
 
 plaintiff's absence cannot be taken in, 321. 
 
 replevin, what to state, 230, 231, 322.
 
 620 Index. 
 
 Verdict, replevin, for part of several chattels, 231. 
 
 rendition of, within what time, 352. 
 
 summary proceedings, may be directed or set aside, 70, 71, 81. 
 
 waiver of, when party waives rendering of, 322. 
 Verification, amended pleadings of, 245. 
 
 answer, unverified, motion to dismiss complaint, 246. 
 
 by association, 271. , 
 
 by attorney, 271. 
 
 by corporation, 271. 
 
 date of, 271. 
 
 defective, remedy for, 271. 
 
 how and by whom to be made, 270, 271. 
 
 knowledge, 271. 
 
 people of the State, 270. 
 
 public officer, 270. 
 
 requirement concerning verified pleading, 270. 
 Vessel, action on undertaking to enforce lien on, 53. 
 
 attachment of, personal service of process, 207. 
 Void, process, erroneous, irregular or, 12. 
 
 Wages of infant, parent claiming, must notify employer, effect of notifica- 
 tion, 46, 
 
 complaint for, master and servant, 254. 
 Wage-earner. (See Employee; Workingman.) 
 
 action by employee, 369. 
 
 amount less than $50, 368, 369. 
 
 costs, in action by workingman, 439. 
 
 costs, in action by working-woman, 447. 
 
 defendant on execution against person, how long confined, 369, 370. 
 
 no other execution against the person, 369. 
 
 execution against the property and against the person, 368. 
 
 no property of defendant exempt, when, 368. 
 
 judgment in favor of, 368. 
 
 short Statute of Limitation, 368. 
 Waiver of amount in excess of jurisdiction, 48, 85. 
 
 of answer on the merits is, 262. 
 
 of architect's certificate, 256. 
 
 of irregularity, 214, 310. 
 
 on deposition of witness taken conditionally, 310. 
 
 of legal capacity to sue, 267. 
 
 of misnomer, when, 277. 
 
 of mistake in name of defendant, 273. 
 
 of right of removal of action, 92, 93. 
 
 of time, essence of contract, 256. 
 Wards, boundaries of, in the districts of the borough of The Bronx, 17, 18. 
 
 boundaries of, in the districts of the borough of Manhattan, 18-26.
 
 Index. 621 
 
 Wards, boundaries of, in the districts of the borough of Brooklyn, 26-37. 
 
 boundaries of, in the districts of the borough of Queens, 37, 38. 
 
 boundaries of, in the districts of the borough of Richmond, 38. 
 Warehouse hens, 68. 
 Warehouseman, 68. 
 
 interpleader, 284. 
 Warrant of attachment. (See also Attachment.) 
 
 action upon undertaking on vacating, 200. 
 
 amended, may be, 192. 
 
 amount must be specified in, 192. 
 
 for contempt, recital in, 99. 
 
 contents of, 191. 
 
 chattel, in action to foreclose lien upon, 237. 
 
 executed, how, 193. 
 
 levy upon property under, how, 194. 
 
 service of, where, 194. 
 
 what must be shown to procure, 184. 
 
 witness defaulting, against, 292. 
 Workingman. (See Wage-Earner.) 
 
 lien, 68. 
 
 artisans, 63. 
 Working- woman. (See Wage-Earner.) 
 Written instrument, no jurisdiction to reform, 86. 
 Wife. (See Husband; Married Woman.) 
 Witness, absence of, adjournment, 286, 288. 
 
 adverse, plaintiff allowed latitude in examining, 337. 
 
 attendance of, 288, 290. 
 
 books, inspection of, 289. 
 
 commission to take testimony of, 295-304. 
 
 compelling the attendance and testimony of, 294. 
 
 competency of, 302. 
 
 corporation books, how produced, 289. 
 
 credibility of, on trial, 325, 327, 337. 
 
 cross-examination of, 327. 
 
 deceased person, when not excused from testifying to transactions with, 
 338. 
 
 defaulting, liable for damages and penalty of $50, 293. 
 
 deposition, to take, 304-311. 
 
 detention of, 289. 
 
 discharge of, 289. 
 
 excuse, 290, 292. 
 
 fees of, 291, 293, 307, 454, 463. 
 
 fees of, attorney not allowed as a, when, 455. 
 
 fees of, commission to take testimony within the State, subpoena where, 
 106. 
 
 fees of, deposition to be used in another State, 107.
 
 622 Index. 
 
 Witness, fees of, disbursements of, 455. 
 fees of, expert of, 454. 
 fees of, party of, 455. 
 fees of, settlement of suit, 455. 
 fees of, tabulated statement of, 463. 
 habeas corpus, to testify, 292. 
 impeaching, 302. 
 
 interested, swearing falsely, 325. 
 justice a, proceedings in case of, 14. 
 knowledge, 303. 
 
 materiality of, on commission, 303. 
 mileage, 292. 
 
 mistake in name of, in commission, 301. 
 nonresident, 290, 292. 
 
 nonresident, exempt from service of summons, 133. 
 notice to produce, 290. 
 nonattendance of, excuse for, 290, 292. 
 nonattendance of, remedies, 294. 
 number of, limiting, 337. 
 
 oath or affirmation to. and general mode of swearing, 334. 
 officer of domestic corporation, 291. 
 qualification of, 338. 
 
 privilege, from service of summons and arrest, 290, 292. 
 prison, confined in, 306, 308. 
 public officer, 291. 
 punishment of, 294. 
 
 refusal of, to answer, taking deposition conditionally, 309. 
 refusal to attend, be sworn, or to answer material questions is a con- 
 tempt, 104. 
 refusal to produce papers, 294. 
 
 records not to be removed by virtue of subpoena, 291. 
 subpoena duces tecum, 291. 
 how subpoena served upon, 291, 292. 
 •warrant of attachment against defaulting, 292. 
 warrant of attachment, how executed, fees thereupon, 293.
 
 INDEX TO APPENDIX OF FORMS. 
 
 Adjournment, undertaking of defendant for, when under arrest, 491. 
 
 Affidavit to obtain, of trial, 510. 
 
 Undertaking on long, 511. 
 Affidavit of service of summons, 482. 
 
 by employee against employer for services, male or female, 484. 
 
 for appointment of guardian ad litem for infant under fourteen, 485. 
 
 for, over fourteen, 486. 
 
 to obtain order of arrest, 487. 
 
 for warrant of attachment, 492. 
 
 in an action to recover chattel, 499. 
 
 by defendant to reclaim chattel, 504. 
 
 by third person for delivering of chattel to him, 505. 
 
 to obtain adjournment of trial, 510. 
 
 for warrant of attachment against witness, 513. 
 
 that justice is a material witness on the trial, 517. 
 
 to obtain order to plead, 528. 
 
 for substituted service, 534. 
 
 of service of order thereon, 535. 
 
 as to costs and disbursements, 536. 
 
 by employee against employer, male or female, 484. 
 Allowance, by justice of undertaking, 505. 
 Answer, of title to real property, 508. 
 
 Undertaking on, 508. 
 Application, to obtain order of arrest, 487. 
 
 for warrant of attachment, 492. 
 Appeal, notice of, 528. 
 
 Justice's return on, 530. 
 
 Undertaking on, to secure stay of execution, 529. 
 Arrest, where order of with summons, 482. 
 
 Application and affidavit to obtain order of, 487. 
 
 Undertaking to obtain order of, 491. 
 
 Order of, 489. 
 
 Undertaking upon, by defendant, 491. 
 
 Undertaking of defendant on adjournment, when under, 491. 
 Attachment, application for warrant of, 492. 
 
 Warrant of, 494. 
 
 Defendant's undertaking for redelivery of attached property, 495. 
 [623]
 
 G24: Index to Appendix of Forms. 
 
 Attachment, Inventory of property attached, 496 
 
 Bond for delivery of attached property to third person, 490. 
 
 Marshal's return of proceedings on, served personally, 497. 
 
 Order vacating warrant of, 49S. 
 
 Execution against property taken by, 499. 
 
 Affidavit for Warrant of, against witness, 513. 
 
 against defaulting witness, 513. 
 
 Order on, against such, 514. 
 
 Bond, for delivery of attached property to third person, 496. 
 Indemnity, 525. 
 
 Certificate of service by marshal, 514. 
 
 of satisfaction of judgment, 520. 
 Chattel, affidavit in action to recover, 499. 
 
 Complaint in action to recover, 500. 
 
 Plaintiff's undertaking in action to recover, 501. 
 
 Notice by defendant to reclaim, 503. 
 
 Affidavit by defendant to reclaim, 504. 
 
 Undertaking by defendant to reclaim, 504. 
 
 Examination of sureties thereon, 504. 
 
 Affidavit by third person for delivery of, to him, 505. 
 
 Marshal's notice to plaintiff of third person's claim to, 505. 
 
 Plaintiff's undertaking to indemnify marshal against such claim, 
 506. 
 
 Execution on judgment awarding the recovery of a, 506. 
 
 Judgment in action to foreclose lien on a, 532. 
 Commissions, note as to, 511. 
 Commitment, of witness, 513. 
 
 Warrant of, 516. 
 Complaint, in action to recover chattel, 500. 
 
 petition by infant over fourteen for appointment of guardian ad 
 litem, 486. 
 
 Order thereon, 487. 
 
 Petition by relative or friend of infant defendant under fourteen, 
 487. 
 
 Undertaking of, on adjournment when under arrest, 491. . 
 
 Undertaking for delivery of attached property, 495. 
 
 Notice by excepting to plaintiff's sureties in replevin, 505. 
 
 Notice by, to reclaim chattel, 503. 
 
 Affidavit by, to reclaim chattel, 504. 
 
 Undertaking by, to reclaim chattel, 504. 
 Confession of judgment. See Abbott's Forms. 
 
 Duces Tecum, subpoena, 512. 
 
 Marshal's return on subpoena, 512.
 
 Index to Appendix of Forms. C25 
 
 Employee against employer for services, male or female, affidavit by, 
 
 4S4 
 Examination of sureties, 519. 
 Execution, against property taken by attachment. 499. , 
 
 on judgment awarding recovery of chattel, 50G. 
 
 to marshal to collect fine of defaulting witness, 515. 
 
 against property, 522. 
 
 same, against joint debtors, 523. 
 
 against the person, 524. 
 
 in favor of wage-earner, 524. 
 
 against property, mechanic's lien, 533. 
 
 Undertaking on appeal to secure stay of, 529. 
 
 Guardian ad litem, consent of, for appointment, 485. 
 
 Guardian, of, for infant under fourteen, for over fourteen, 485. 
 
 Order for appointment of, under fourteen, 486. 
 
 for, over fourteen, 486. 
 
 consent of, 4S5. 
 
 Indemnity, bond of, 525. 
 
 Infant, petition for appointment of guardian ad litem for, under four- 
 teen, 485. 
 
 for, over fourteen, 486. 
 
 Petition by relative or friend of, under fourteen, 487. 
 Interpleader. See Abbott's Forms. 
 Inventory of property attached, 496. 
 
 Judgment, transcript of, 520. 
 
 confession of. See Abbott's Forms. 
 
 Certificate of satisfaction of, 520. 
 
 in action to foreclose lien on a chattel, 532. 
 Juror, notice to, 518. 
 
 Oath to, on the trial, 330. 
 Jury, venire' by, marshal to summon, 516. 
 
 Justice's Return on appeal, 530. 
 
 Marshal, certificate of service of, 482. 
 
 return of nonservice cf summons, 483. 
 
 return of proceedings on warrant of attachment served personally, 
 
 497. 
 return of, in proceedings to replevy, 503. 
 
 notice to plaintiff of third person's claim to recover chattel, 505. 
 Plaintiff's undertaking to indemnify, against claim by third person 
 
 in action to recover chattel, 506. 
 return on subpoena, 512. 
 
 Execution to, to collect fine of defaulting witness, 515. 
 Venire to, 516 
 40
 
 626 Index to Appendix of Forms. 
 
 Marshal, return of service to venire, 516. 
 
 Oath to, 330. 
 Minute of conviction on attachment of defaulting witness, 515. 
 Motion, notice of, to set aside proceedings, 507. 
 
 Notice, of motion to set aside proceedings, 507. 
 
 of motion (with or without stay of proceedings), 509. 
 to juror, 518. 
 of appeal, 528 
 
 Oath, to juror on the trial, 330 
 
 to marshal, 330. 
 
 of witness on the trial. Code Civ. Proc, § 846. 
 Order on petition of guardian ad litem for appointment of, for infant 
 under fourteen, 486. 
 
 for, over fourteen, 487. 
 
 Application and affdavit to obtain, of arrest, 487. 
 
 of arrest, 489 
 
 vacating warrant of, 498. 
 
 for substituted service, 534. 
 
 to show cause, 509. 
 
 for attachment against defaulting witness, 514. 
 
 on affidavit that justice material witness on the trial, 518 
 
 Removing action, 527. 
 
 to plead, 528. 
 
 Petition for leave to prosecute as a poor person, 483. 
 
 for appointment of guardian ad litem, for infant under fourteen. 
 485. 
 
 for, over fourteen, 486. 
 
 by relative or friend for infant defendant under fourteen, 487 
 Plaintiff, Undertaking in action to recover chattel, 501. 
 
 notice by defendant excepting to sureties in replevin, 503. 
 
 Marshal's notice to, of third person's claim in action to recover a 
 chattel, 505. 
 
 Undertaking to indemnify marshal against such claim, 506. 
 Poor Person, or Pauper, summons, 482. 
 
 Petition for leave to prosecute as a, 483. 
 
 Remittitur. See Abbott's Forms. 
 
 Replevin, marshal's return in proceedings to, 503. 
 
 Notice by defendant excepting to sureties in, 503. 
 Return of justice on appeal. 530. 
 
 of proceeding on, by marshal on warrant of attachment served per- 
 sonally, 497. 
 
 of marshal in proceedings to replevy, 503. 
 
 of marshal on subpoena, 512 
 
 of marshal to venire, 516
 
 Index to Appendix of Forms. 627 
 
 Satisfaction, certificate of, of judgment, 520. 
 Service. Marshal's certificate of the summons, 514. 
 
 return of marshal of nonservice of summons, 483. 
 
 Affidavit of service of order for substituted service, 535. 
 Subpoena to testify, 511. 
 
 duces tecum, 512. 
 
 Marshal's return on, 512. 
 Substituted service, 534, 535, 536. 
 Summons, 127, 481. 
 
 Alias, 481. 
 
 where order of arrest, with, 482. 
 
 Pauper, 482. 
 Sureties, on undertaking, 519. 
 
 notice by defendant to plaintiffs in replevin, 503. 
 
 on undertaking, examination, 519. 
 
 Title, answer of, to real property, 508. 
 
 Undertaking thereon, 508. 
 Transcript, of judgment, 520. 
 
 Undertaking, to obtain order of arrest, 488. 
 upon arrest by defendant, 488. 
 
 of defendant on adjournment, when under arrest, 491. 
 for warrant of attachment, 493 
 
 Defendant's, for redelivery of attached property, 495. 
 For delivery of attached property to third person, 496. 
 Plaintiff's, in action to recover chattel, 501. 
 by defendant to reclaim chattel, 504. 
 allowance by justice of, 505. 
 Plaintiff's, to indemnify marshal against claim to recover a chattel, 
 
 506. 
 on answer of title to real property, 508. 
 on long adjournment, 511 
 to indemnify against lost bill or note, 518. 
 on removing action, 526. 
 on appeal to Secure Stay of Execution, 529. 
 on appeal opening default, 536. 
 
 Venire to marshal to summon jury, 516 
 
 Warrant, of attachment, 494. 
 order vacating, 498. 
 
 Execution against property taken by attachment, 499. 
 Affidavit for, of attachment against witness, 513. 
 of commitment against witness, 516. 
 of commitment, 521. 
 in action to foreclose lien on a chattel, 532.
 
 628 Ixdex to Appendix of Forms. 
 
 Witness, subpoena for, 486. 
 
 Subpoena duces tecum, 512. 
 
 Affidavit for warrant of attachment against, 513. 
 
 Attachment against defaulting, 513. 
 
 Order for attachment against defaulting. 514. 
 
 Minute of conyiction of such, by justice, 515. 
 
 Execution to marshal to collect fine of such, 515. 
 
 Commitment of, 513. 
 
 Oath of, on the trial. Code Civ. Proc , § 846. 
 
 [Whole Nuaibeh of Pages, 662.}
 
 SUPPLEMENT TO THE FIFTH EDITION 
 
 OF 
 
 LANGBEIN'S 
 
 LAW AND PEACTICE 
 
 OP THE 
 
 MUNICIPAL COURT 
 
 OF THE 
 
 CITY OF NEW YOEK 
 
 CONTAINING 
 
 THE AMENDMENTS TO "THE MUNICIPAL COURT ACT OF 
 THE CITY OF NEW YORK" (LAWS 1902, CHAP. 580), "THE 
 GREATER NEW YORK CHARTER" (LAWS 1901, CHAP. 
 466) RELATIVE TO SAID COURT, CHANGES IN THE 
 JUSTICES, CLERKS, COURT OFFICIALS AND MAR- 
 SHALS, THE LATEST RULES OF PRACTICE, 
 AND RELATIVE TO CLERKS AND ATTEND- 
 ANTS, AND DECISIONS AFFECTING 
 THIS COURT SINCE AUGUST, 1902, 
 
 BY 
 
 LANGBEO BEOTHEES 
 
 COUNSELLORS-AT-LAW 
 
 George F. Langbein" J. 0. Julius Langbein - 
 
 NEW YORK 
 
 BAKER, VOORHIS & COMPANY 
 1905
 
 Copyright, 1905, 
 By GEORGE F. LANGBEIN and J. C. JULIUS LANGBEIN 
 
 J. B. LYON COMPANY 
 
 PRINTERS AND BINDERS 
 
 ALBANY, N. Y.
 
 CHARTER AND MUNICIPAL COURT 
 AMENDMENTS SINCE AUGUST, 1902 
 
 AMENDMENTS to "The Greater New York Charter" (Laws 1901, 
 Chap. 466) affecting the Municipal Court. 
 LAWS 1903, Chapter 645. 
 LAWS 1905, Chapters 730, 758. 
 
 AMENDMENTS to the Municipal Court Act (Laws 1902, Chap. 580). 
 LAWS 1903, Chapters 144, 156, 282, 431. 
 LAWS 1904, Chapters 93, 264, 598, 625, 682, 735. 
 LAWS 1905, Chapters 73, 125, 228, 513, 622,
 
 ADDENDA NOTE. 
 
 The statute as to sale of merchandise in bulk (Laws 1902, 
 chap. 528) has been declared unconstitutional by the Court of 
 Appeals in Wright as Trustee v. Hart. (See N. Y. Law Jour- 
 nal, October 16, 1905.) The decisions under this statute cited 
 on pages 47, 48, and 76 are therefore no longer the law.
 
 THE MUNICIPAL COURT 
 
 OF THE 
 
 CITY OF NEW YORK. 
 
 NAMES OF THE JUSTICES, CLERKS, COURT OFFICIALS, AND 
 MARSHALS, WITH THEIR RESIDENCES, DAYS AND PLACES 
 OF HOLDING COURT, AND TELEPHONE NUMBER. 
 
 BOROUGH OF THE BRONX. 
 
 FIRST JUDICIAL DISTRICT. 
 
 Court held at Town Hall, Main Street, Westchester. 
 Trial days, Tuesday and Friday. 
 
 Justice, WILLIAM W. PENFIELD, Wakefield. 
 Clerk, Thomas F. Delehanty, White Plains Ave., Williamsbridge. 
 Assistant Clerk, William D. Miller, White Plains Ave., Wakefield. 
 Stenographer, Lucius W. How, Bronxwood Park, Williamsbridge. 
 Attendants, Stephen Collins, City Island, New York city. 
 John H. Coman, Poplar St., Westchester. 
 Timothy Sullivan, East Chester Road, Westchester. 
 Fireman, Patrick Clark, No. 833 Washington Ave., Bronx. 
 Janitor, Daniel Schwegler, No. 1254 Franklin Ave., Bronx. 
 Marshal, Mathew F. Mulvihill, No. 1991 Lexington Ave., Manhattan. 
 
 No telephone. 
 
 SECOND JUDICIAL DISTRICT. 
 
 Court held at southwest corner of 158th St. and 3d Ave. 
 
 Trial days, every day except Saturday, Sunday, and legal holidays. 
 
 Justice, JOHN M. TIERNEY, Southern Boulevard, near Valentine Ave. 
 Clerk, Thomas A. Maher, No. 1346 Fulton Ave. 
 Assistant Clerk, John Monaghan, 166th St. and Sherman Ave. 
 Stenographer, Wm. M. Browne, Hunts Point.
 
 2 Names of Justices, Clerks, Etc. 
 
 Interpreter, Robert Yollbracht, No. 674 East 144th St. 
 Attendants, Louis F. Scofield, No. 39 Boston Ave. 
 Peter Koelble, No. 8S3 Forest Ave. 
 Frederick Johnson, No. 670 East 144th St. 
 Marshals, Thos. McLaughlin, No. 711 East 158th St. 
 David W. Erskine, No. 706 East 158th St. 
 George Donnelly, 158th St. and 3d Ave. 
 Telephone, 1059 Melrose. 
 
 BOROUGH OF MANHATTAN. 
 
 FIRST JUDICIAL DISTRICT. 
 
 Court held at 128 Prince St. 
 
 Trial days, Tuesday, Wednesday, Thursday, and Friday. 
 
 Justice, WAUHOPE LYNN, No. 19 King St. 
 Clerk, Thomas O'Connell, No. 437 Canal St. 
 Assistant Clerk, Dominick F. Mullaney, No. 71 Charlton St. 
 Stenographer, Edward C. Manners, No. 968 St. Nicholas Ave. 
 Interpreter, Edward Herbert, No. 282 Broome St. 
 Attendants, Charles Kerner, No. 74 Beach St. 
 
 Michael Brennan, No. 584 Broome St. 
 
 John J. McGrath, No. 20 Greenwich St. 
 Janitor, Patrick J. Kane, No. 128 Prince St. 
 Marshal, Edward J. Healey, No. 42 Barrow St. 
 Telephone, 1430 Spring. 
 
 SECOND JUDICIAL DISTRICT. 
 
 Court held at 59 Madison St. 
 
 Trial days, every day except Sunday and legal holidays. 
 
 Justice, JOHN HOYER, appointed by the Mayor, No. 26 Oliver St. 
 Clerk, Francis Mangin, No. 285 Mott Str 
 Assistant Clerk, James P. Divver, No. 88 Madison St. 
 Stenographer f Charles J. Doran, No. 340 East 18th St. 
 Attendants, Hugh Taggert, No. 222 East 5th St. 
 
 James McCullough, No. 73 Centre St. 
 Charles D. Perry, No. 289 Grand St. 
 Janitor, Joseph Ramsey, No. 611 9th Ave. 
 
 No telephone.
 
 !Names of Justices, Clerks, Etc. 
 
 THIRD JUDICIAL DISTRICT. 
 Court held at 125 6th Ave. 
 Trial days, daily except Sundays and legal holidays. 
 
 Justice, WILLIAM F. MOORE, Xo. Ill West 11th St. 
 Clerk, Daniel Williams, No. 66 West 10th St. 
 Assistant Clerk, Thomas E. Gorman, No. 103 Bank St. 
 Stenographer, Valencouet S. Lillie, No. 30 East 10th St. 
 Attendants, Daniel B. Murphy, No. 448 West 14th St. 
 
 Michael Bergin, No. 56 Bank St. 
 
 John J. Gallagher, No. 32 Leroy St. 
 Janitor, Daniel Mooney, No. 15 St. Luke's Place. 
 Marshal, J. T. Pangburn, Court House. 
 
 Telephone, 2396 Chelsea. 
 
 FOURTH JUDICIAL DISTRICT. 
 
 Court held at northeast corner of 2d Ave. and 1st St. 
 
 Trial days, Monday, Tuesday, Wednesday, Thursday, and Friday. 
 
 Justice, GEORGE F. ROESCH, No. 109 East 10th St. 
 Clerk, Andrew Lang, No. 159 East 3d St. 
 Assistant Clerk, William Dopf, No. 125 2d Ave. 
 Stenographer, Caleb- H. Redfern, No. 257 West 54th St. 
 Attendants, Michael G. Murray, No. 165 East 54th St. 
 
 James J. Skiffington, No. 453 East 10th St. 
 Andrew J. Hughes, Xo. 10 St. Mark's Place. 
 Janitor, John Rooney, No. 30 1st St. 
 Interpreter, Isidore Loewy, No. 157 East 3d St. 
 Marshals, Jacob Subin, No. 29 1st St. 
 I. Van Lee, No. 30 1st St. 
 Joseph Ethor, No. 34 1st St. 
 A. C. Lorey, No. 34 1st St. 
 
 No telephone. 
 
 FIFTH JUDICIAL DISTRICT. 
 
 Court held at 154 Clinton St. 
 
 Trial days, every day except Saturday, Sunday, and legal holidays. 
 
 Justice, BENJAMIN HOFFMAN, No. 271 7th St. 
 Clerk, Thomas Fitzpatrick, No. 258 Henry St. 
 Assistant Clerk, James H. Sheils, No. 283 East Broadway.
 
 4 Names of Justices, Clerks, Etc. 
 
 Stenographer, Louis Posneb, No. 17 Rivington St. 
 Interpreter, Jacob Katz, No. 160 East 72d St. 
 Attendants, Charles Neuman, No. 64 Avenue C. 
 
 James McAlabney, No. 438 East 116th St. 
 
 Patrick Reilly, No. 168 Delaney Place, Bronx. 
 Janitor, Joseph Rose, No. 154 Clinton St. 
 
 No telephone. 
 
 SIXTH JUDICIAL DISTRICT. 
 
 Court held at 407 2d Ave. 
 
 Trial days, every day except Sunday and legal holidays. 
 
 Justice, DANIEL F. MARTIN, No. 245 East 33d St. 
 Clerk, Abbam Bebnabd, No. 956 Broadway. 
 Assistant Clerk, James Foley, No. 314 East 19th St. 
 Stenographer, Isaac E. Gabvey, No. 689 Greenwich St. 
 Attendants, Lawbence Collins, No. 233 East 30th St. 
 
 Albebt Goettman, No. 304 East 18th St. 
 
 Tebence S. Rielly, No. 244 East 37th St. 
 Janitor, John S. Ryan, No. 333 2d Ave. 
 Interpreter, Henby Alsheimee, 417 East 15th St. 
 
 No telephone. 
 
 SEVENTH JUDICIAL DISTRICT. 
 
 Court held at 151 East 57th St. 
 
 Trial days, every day except Saturday, Sunday, and legal holidays 
 
 Justice, HERMAN JOSEPH, No. 121 East 64th St. 
 Clerk, Edwaed A. McQuade, No. 1328 Lexington Ave. 
 Assistant Clerk, Thomas M. Campbell, No. 1183 3d Ave. 
 Stenographer, Stewaet Liddell, No. 151 East 40th St. 
 Attendants, Edwaed T. Foean, No. 214 East 90th St. 
 
 Patbick Cunningham, No. 8 East 85th St. 
 William Fabley, No. 1357 2d Ave. 
 Janitor, Ike Adamshitz, No. 151 East 57th St. 
 
 No telephone.
 
 Names of Justices, Clerks, Etc. 5 
 
 EIGHTH JUDICIAL DISTRICT. 
 
 Court held at northwest corner 23d St. and 8th Ave. 
 
 Trial days, daily except Saturday, Sunday, and legal holidays. 
 
 Justice, JAMES W. McLAUGHLIN, No. 234 West 34th St. 
 Clerk, Henry Mebzbach, No. 259 West 34th St. 
 Assistant Clerk, Peter J. Garvey, No. 34G West 22d St. 
 Stenographer, Harold Eyre, No. 155 West 22d St. 
 Interpreter, Elias Kaplan, No. 212 Clinton St. 
 Attendants, Charles J. Geiger, No. 432 East 89th St. 
 Daniel Walsh, No. 449 East 86th St. 
 John J. Sheehan, No. 361 West 15th St. 
 Janitor, Edgar W. Chichester, No. 2270 7th Ave. 
 Marshals, James W. Slater, No. 264 8th Ave. 
 
 James W. Ketcham, No. 264 8th Ave. 
 No telephone. 
 
 NINTH JUDICIAL DISTRICT. 
 
 Court held at 170 East 121st St. 
 
 Trial days, every day except Saturday, Sunday, and legal holidays. 
 
 Justice, JOSEPH P. FALLON, No. 103 East 116th St. 
 Clerk, William J. Kennedy, No. 64 East 130th St. 
 Assistant Clerk, Patrick J. Ryan, No. 172 East 94th St. 
 Stenographer, George Zieger, No. 51 West 128th St. 
 Attendants, Charles L. Lambert, No. 110 West 129th St. 
 John Golden, No. 514 East 114th St. 
 Isaac Silverblatt, No. 207 East 124th St. 
 Interpreter, Eugene Dumas, No. 152 West 100th St. 
 
 No telephone. 
 
 TENTH JUDICIAL DISTRICT. 
 
 Court held at 312 West 54th St. 
 
 Trial days, every day except Saturdays and legal holidays. 
 
 Justice, THOMAS E. MURRAY, No. 305 West 46th St. 
 Clerk, Michael Skelly, No. 442 West 51st St. 
 Assistant Clerk, George Sexton, No. 1961 Broadway. 
 Stenographer, William C. Booth, No. 59 West 76th St.
 
 6 Names of Justices, Clerks, Etc. 
 
 Attendants, Cornelius Foley, No. 342 West 47th St. 
 
 Thomas P. Campbell, No. 408 West 40th St. 
 
 John F. Uleich, No. 22 West 60th St. 
 Interpreter, Walteb Koltengen, No. 75 Waverly Place. 
 
 No telephone. 
 
 ELEVENTH JUDICIAL DISTRICT. 
 
 Court held at 70 Manhattan St., New York city. 
 
 Trial days, Monday, Tuesday, Wednesday, Thursday, and Friday. 
 
 Justice, FRANCIS J. WORCESTER, No. 462 West 144th St. 
 Clerk, Heman B. Wilson, No. 661 West 183d St. 
 Assistant Clerk, Robert Andrews, No. 2139 7th Ave. 
 Stenographer, Harry W. Wood, No. 770 St. Nicholas Ave. 
 Interpreter, Valentine J. Hahn, No. 458 West 131st St. 
 Attendants, Thomas H. McCarrick, No. 358 West 116th St. 
 Frank McGrath, No. 498 West 133d St. 
 Charles J. Callaghan, No. 185 Audubon Ave. 
 Marshals, Frank C. Merklee, Court House. 
 Frank C. Langley, Court House. 
 
 Telephone, 299 Morningside. 
 
 TWELFTH JUDICIAL DISTRICT. 
 
 Court held at 2630 Broadway, near 100th St. 
 Trial days, Monday, Tuesday, Wednesday, and Friday. 
 Wednesday — Jury Day. 
 
 Justice, ALFRED P. W. SEAMAN, Court House. 
 Clerk, James V. Gilloon, No. 160 West 106th St. 
 Assistant Clerk, John H. Servis, No. 100 Convent Ave. 
 Stenographer, James E. Lynch, No. 41 Bethune St. 
 Interpreter, Max Rechnitzer, No. 993 Ogden Ave. 
 Attendants, Joseph H. Boylan, No. 326 West 23d St. 
 Otto H. Keimling, No. 344 West 47th St. 
 No telephone.
 
 Names of Justices, Clerks, Etc. 
 
 THIRTEENTH JUDICIAL DISTRICT. 
 Court held at 200 East Broadway. 
 Trial days, Monday, Tuesday, Wednesday, Thursday, and Friday. 
 
 Justice, LEON SANDERS, No. 11 Attorney St. 
 Clerk, James J. Devlin, No. 2 Mangin St. 
 Assistant Clerk, Michael H. Looney, No. 203 Monroe St. 
 Stenographer, Addison Kavanagh, No. 278 Henry St. 
 Attendants, Hebman Fried, No. 118 Avenue C. 
 
 Edward H. Dinan, No. 291 Madison St. 
 Thomas B. Frost, No. 944 8th Ave. 
 Janitor, William Wagner, No. 50 Broome St. 
 Interpreter, Myron S. Yochelson, No. 246 Henry St. 
 Telephone, 743 Orchard. 
 
 BOROUGH OF BROOKLYN. 
 
 FIRST JUDICIAL DISTRICT. 
 Court held at northwest corner of State and Court Sts., 
 
 Brooklyn. 
 Trial days, Monday, Tuesday, Wednesday, Thursday, Friday. 
 
 Justice, JOHN J. WALSH, No. 289 Bridge St., Brooklyn. 
 Clerk, Edward Moran, No. 242 Clinton St., Brooklyn. 
 Assistant Clerk, James A. Dunne, No. 56 First Place, Brooklyn. 
 Stenographer, Dudley J. Fagan, No. 1461 Dean St., Brooklyn. 
 Attendants, Matthew J. Dowd, No. 329 Bradford St., Brooklyn. 
 Charles Koch, No. 459 Pulaski St., Brooklyn. 
 John J. McManus, No. 425 Grand St., Brooklyn. 
 Interpreter, Joseph Flash, No. 378 Hancock St., Brooklyn. 
 Janitor, James Mahn, No. 175 State St., Brooklyn. 
 Marshals, John H. Reardon, No. 108 Court St., Brooklyn. 
 John Irvin, No. 196 State St., Brooklyn. 
 Eugene McCarthy, No. 185 State St., Brooklyn. 
 Arthur Stuber, No. 82 Court St., Brooklyn. 
 No telephone. 
 
 SECOND JUDICIAL DISTRICT. 
 
 Court held at 495 Gates Ave. 
 
 Trial days, every day except Saturday, Sunday, and legal holidays. 
 
 Justice, GERARD B. VAN WART, No. 340 Putnam Ave. 
 Clerk, William H. Allen, No. 255 Vernon Ave. 
 Assistant Clerk, Edward L. Stryker, Court House.
 
 8 Names of Justices, Clerks, Etc. 
 
 Stenographer, Ciiakles J. Doyle, No. 75 Vanderbilt Ave. 
 Attendants, Samuel A. Ackerman, No. 510 Monroe St. 
 
 J. Nelson Magee, No. 2038 59th St. 
 Janitor, John S. Matson, No. 1166 Gates Ave. 
 Marshal, John Murray, No. 501 Gates Ave. 
 
 No telephone. 
 
 THIRD JUDICIAL DISTRICT. 
 
 Court held at 6 Lee Ave. 
 
 Trial days, every day except Saturday, Sunday, and legal holidays. 
 
 Justice, WILLIAM J. LYNCH, No. 247 Leonard St. 
 Clerk, John W. Cabpenter, No. 199 Kent St. 
 Assistant Clerk, Abthub J. Higgins, No. 43 Marey Ave. 
 Stenographer, John W. Richabds, No. 15 Halsey St. 
 Interpreter, Emil Klebaub, No. 829 Manhattan Ave. 
 Attendants, Edward S. Wilson, No. 20 Putnam Ave. 
 Walter P. Casey, No. 97 Russell St. 
 Patrick Courtney, No. 1731 Fulton St. 
 No telephone. 
 
 FOURTH JUDICLAL DISTRICT. 
 
 Court held at 14 Howard Ave. 
 
 Trial days, every day except Saturday, Sunday, and legal holidays. 
 
 Justice, THOMAS H. WILLIAMS, No. 555 Decatur St. 
 Clerk, Gustave J. Wiederiiold, No. 676 Madison St. 
 Assistant Clerk, Richard M. Bennett, No. 869 Jefferson Ave. 
 Stenographer, John J. Reilly, No. 139 Miller Ave. 
 Interpreter, Hyman Rayfiel, No. 1701 Pitkin Ave. 
 Attendants, William McKee, No. 454 Lorimer St. 
 Robert Hill, No. 935 Jefferson Ave. 
 Louis Ulm, No. 893 Hancock St. 
 Janitor, Peter Amman. 
 
 Marshals, Albert H. Blenderman, No. 907 Jefferson Ave. 
 David Goldberg, corner Pitkin and Stone Aves. 
 Charles Hart, corner Melrose St. and Broadway. 
 No telephone.
 
 Names of Justices, Clerks, Etc. 
 
 FIFTH JUDICIAL DISTRICT. 
 
 Court held at northwest corner 53d St. and 3d Ave. 
 Trial days, Mondays, Tuesdays, and Thursdays. 
 
 Justice, CORNELIUS FURGUESON, Bath and 22d Ave. 
 Clerk, Jeremiah J. O'Leary, No. 445 58th St. 
 Assistant Clerk, Eugene A. Curran, No. 184 Clarkson St. 
 Stenographer, Joseph N. B. Rawle, No. 552 15th St. 
 Attendants, John F. Dwyer, Kimball Road. 
 
 Peter C. Moore, No. 1917 Benson Ave. 
 Cornelius Snedeker, Bay 43d St. and Cropsey Ave. 
 Marshals, Michael J. Duffy. 
 Alonzo F. Glover. 
 
 Telephone, 407 Bay Ridge. 
 
 BOROUGH OF QUEENS. 
 
 FIRST JUDICIAL DISTRICT. 
 
 Court held at 46 Jackson Ave., Long Island City. 
 Trial days, Monday, Wednesday, and Friday. 
 
 Justice, THOMAS C. KADIEN, No. 147 12th St. 
 Clerk, Thomas F. Kennedy, No. 535 2d Ave. 
 Assistant Clerk, Eugene Dennen, No. 149 12th St. 
 Stenographer, JonN J. Sullivan, No. 60 Hoyt Ave. 
 Attendants, Henry A. Smith, No. 396 Ditmar Ave. 
 
 Thomas White, No. 120 Broadway. 
 Janitor, James O'Rourke, Whitestone, L. I. 
 Marshal, Conrad Diestel, No. 16 Pierson St. 
 
 No telephone. 
 
 SECOND JUDICIAL DISTRICT. 
 
 Court held at Court Room, corner Broadway and Court St., Elmhurst. 
 Trial days, Tuesdays and Thursdays. 
 
 Justice, WILLIAM RASQUIN, Jr., No. 307 Lincoln St., Flushing. 
 Clerk, Henry Walter, Jr., No. 21 Lutter Ave., Middle Village. 
 Stenographer, James B. Snedeker, Lamont Ave., Elmhurst. 
 Attendants, Frederick W. Billing, Maiden Lane, Maspeth. 
 
 Philip Peters, Columbia Ave., Maspeth. 
 Janitor, William Rigney, No. 748 9th Ave., Long Island City. 
 Marshals, August C. Brust and Frank Ryan, Court House. 
 Telephone, 87 Newtown.
 
 10 Names of Justices, Clerks, Etc. 
 
 THIRD JUDICIAL DISTRICT. 
 
 Court held at Town Hall, Jamaica. 
 
 Trial days, Monday, Wednesday, and Friday. 
 
 Justice, JAMES F. MCLAUGHLIN, Jamaica. 
 Clerk, George W. Damon, Jamaica. 
 Stenographer, John L. Gwydib, Jamaica. 
 Attendants, Thomas Fox, Jamaica. 
 
 Joseph Kestler, Woodhaven. 
 Marshals, William N. George, Richmond Hill. 
 Thomas J. Hobby, Far Rockaway. 
 
 Telephone, 189 Jamaica. 
 
 BOROUGH OF RICHMOND. 
 
 FIRST JUDICIAL DISTRICT. 
 
 Court held at Village Hall, Lafayette Ave., New Brighton, Staten Island. 
 Trial days, every day except Sundays and holidays. 
 
 Justice, THOMAS C. BROWN. 
 Clerk, Anning S. Prall. 
 Assistant Clerk, Thomas E. Cremins. 
 Stenographer, James Drury. 
 Attendants, Edward Finnerty. 
 
 Frank Langford. 
 Janitor, Patrick J. Maloy. 
 Marshal, William De Wolf. 
 
 Telephone, 503 Tompkinsville. 
 
 SECOND JUDICIAL DISTRICT. 
 
 Court held at Village Hall, Stapleton, Staten Island. 
 Trial days, every day except Sundays and holidays. 
 
 Justice, GEORGE W. STAKE, No. 150 St. Paul's Ave., Stapleton. 
 Clerk, Peter Tiernan, No. 36 Hannah St., Tompkinsville. 
 Assistant Clerk, Wm. J. Browne, Bay St., Stapleton. 
 Stenographer, John G. Farrell, Cary Ave., West New Brighton. 
 Attendants, Charles Warnecke, No. 20 Prospect St., Stapleton. 
 
 Fred'k H. Ferger, No. 38 Dongan St., West New Brighton. 
 Marshal, Edward Peterson, Fulton St., Stapleton. 
 Telephone, 313 Tompkinsville.
 
 THE 
 
 GREATER NEW YORK CHARTER 
 
 ENACTED IN 1897 AS AMENDED BY 
 
 Laws 1903, 1904, and 1905, with Notes of the 
 Decisions by the Courts Affecting' the Same. 
 
 Charter, § 1352, Justices. 
 
 This section, containing four subdivisions, was amended by Latvs 
 1905, chap. 758, by adding at the end of subdivision 4 as follows: 
 
 At the general election to be held in the year nineteen 
 hundred and five, two additional justices shall be 
 elected, one in the sixth district and one in the seventh 
 district of the borough of Brooklyn. Their terms shall 
 commence on the first day of January, nineteen hun- 
 dred and six. 
 
 Notes to Charter section 1353* 
 
 Qualifications, etc., of justices; must be resident and elector of district. 
 — Under section 1353 of the amended Greater New York charter (Laws 
 of 1901, chap. 466), which provides that a justice of the Municipal 
 Court of the city of New York shall be " a resident and elector " of 
 the district for which he shall be elected or appointed, and under the 
 provision of the Public Officers Law (Laws of 1892, chap. 681), which 
 provides that every office shall become " vacant " upon the incumbent's 
 ceasing to be an " inhabitant " of the political division of which he is 
 required to be a " resident " when elected or appointed, the action of 
 a justice of the Municipal Court of the city of New York in the bor- 
 ough of Manhattan, second district, in removing from said district 
 after his election and becoming an inhabitant of White Plains, West- 
 chester county, N. Y., furnishes sufficient ground for the removal of 
 said justice by the Appellate Division in proceedings instituted under 
 section 1383 of the Greater New York charter, even though the justice 
 
 [11]
 
 12 BOKOTTGH OF MANHATTAN. ChAK., § 1360 
 
 in question, when he removed to White Plains, did not intend to give 
 up his residence in the district for which he had been elected or to 
 forfeit his office. 
 
 The term " inhabitant," as used in the provision of the Public Officers 
 Law, before mentioned, has reference to the officer's abode or domicile 
 as distinguished from his legal residence. Qu<sre, whether, under such 
 circumstances, the justice in question could be removed from his office 
 in an action of quo warranto. Matter of Bolte, 97 App. Div. 551. 
 
 Salary. 
 
 CHARTER, § 1355. The salary of each of said 
 justices, except those appointed or elected from the 
 boroughs of Queens and Richmond, shall be six thou- 
 sand dollars a year, to be paid in equal monthly instal- 
 ments by the proper officers of said city, and the salary 
 of each of said justices appointed or elected for the 
 boroughs of Queens and Richmond shall be five thou- 
 sand dollars a year, to be paid in the same manner, 
 provided, however, that whenever a justice elected or 
 appointed for the borough of Queens or the borough of 
 Richmond shall hold court in either of the boroughs of 
 Manhattan, Brooklyn or the Bronx, pursuant to desig- 
 nation made by the president of the board of justices 
 of said court as provided by law, such justice shall re- 
 ceive in addition to such salary the sum of ten dollars 
 for each day on which he shall so hold court, to be paid 
 on the certificate of such president. (As amended by 
 Laws 1905, chap. 622; became a law May 26, 1905.) 
 
 Borough of Manhattan. 
 
 CHARTER, § 1360. In the borough of Manhattan 
 there shall be thirteen districts, as follows : 
 
 1. The first district embraces the third, fifth and 
 eighth wards of said borough of Manhattan, and all
 
 Char., § 13G0. Borough of Manhattan. 13 
 
 that part of the first ward lying west of Broadway and 
 Whitehall street, including Nuttin or Governor's 
 island, Bedloe's island, Bucking or Ellis island and the 
 Oyster islands. 
 
 2. The second embraces the second, fourth, sixth and 
 fourteenth wards, and all that portion of the first ward 
 lying south and east of Broadway and Whitehall street. 
 
 3. The third district embraces the ninth and fifteenth 
 wards. 
 
 4. The fourth district embraces the tenth and seven- 
 teenth wards. 
 
 5. The fifth district embraces the eleventh ward and 
 all that portion of the thirteenth ward which lies east of 
 the center line of Norfolk street and north of the center 
 line of Grand street and west of the center line of Pitt 
 street and north of the center line of Delancey street. 
 
 6. The sixth district embraces the eighteenth and 
 twenty-first wards. 
 
 7. The seventh district embraces the nineteenth 
 ward. 
 
 8. The eighth district embraces the sixteenth and 
 twentieth wards. 
 
 9. The ninth district embraces the twelfth ward, ex- 
 cept that portion thereof which lies west of the center 
 line of Lenox or Sixth avenue and of the Harlem river 
 north of the terminus of Lenox avenue. 
 
 10. The tenth district embraces that portion of the 
 twenty-second ward south of Seventieth street. 
 
 11. The twelfth* district embraces that portion of the 
 twenty-second ward north of Seventieth street and that 
 
 *So in original.
 
 1-i Borough of Manhattan. Char., § 1300. 
 
 portion of the twelfth ward which lies north of the 
 center line of Eighty-sixth street and west of the center 
 line of Seventh avenne and south of the center line of 
 One Hundred and Twentieth street between Seventh 
 avenue and Broadway and south of the center line of 
 One Hundred and Nineteenth street between Broad- 
 way and the North or Hudson river. 
 
 12. The eleventh* district embraces that portion of 
 the twelfth ward which lies north of the center line of 
 West One Hundred and Tenth street between Lenox 
 avenue and Seventh avenue north of the center line of 
 One Hundred and Twentieth street between Seventh 
 avenue and Broadway, and north of the center line of 
 One Hundred and Nineteenth street between Broad- 
 way and the North or Hudson river, and west of the 
 center line of Lenox or Sixth avenue and of the Harlem 
 river north of the terminus of Lenox or Sixth avenue. 
 
 13. The thirteenth district embraces the seventh 
 ward and all that portion of the thirteenth ward which 
 lies east of the center line of Norfolk street and south of 
 the center line of Grand street and east of the center 
 line of Pitt street and south of the center line of De- 
 lancey street. 
 
 § 2. There shall be elected at the general election to 
 be held on the first Tuesday after the first Monday of 
 November, nineteen hundred and three, justices to hold 
 court in the said twelfth and thirteenth districts. Such 
 justices shall enter upon the performance of their 
 duties on the first day of January succeeding their 
 
 * So in original.
 
 Chak., § 1360. Borough of Manhattan. 15 
 
 election, and their term of office shall be for ten years. 
 The mayor shall appoint a suitable person resident in 
 the district as justice of the court of the twelfth and 
 thirteenth districts respectively to serve until the first 
 day of January, nineteen hundred and four. The board 
 of estimate and apportionment may meet at any time to 
 provide for the immediate expenses of the municipal 
 courts of the said twelfth and thirteenth districts, 
 including the payment of salaries. The commissioners 
 of the sinking fund shall secure by renting, purchase or 
 by the purchase of a plat* of ground and erecting a 
 building thereon, suitable rooms for the use of the said 
 courts, and the commissioner of public works shall 
 provide suitable furniture, books, blanks, stationery 
 and other articles necessary for the use of the said 
 courts. The persons appointed as justices of the said 
 courts may make temporary appointments of clerk and 
 assistant clerk for terms not exceeding their own. The 
 justices, stenographers, clerks, assistant clerks, attend- 
 ants and interpreters heretofore elected or appointed 
 for the fifth and tenth and eleventh districts as consti- 
 tuted at the time of the passage of this act are contin- 
 ued in office for the fifth and tenth and eleventh dis- 
 tricts respectively as constituted by this act. 
 
 § 3. Nothing in this act contained shall affect in any- 
 wise any action pending in any of said courts before 
 this act shall take effect. All acts and parts of acts now 
 in force and not inconsistent with this act which are 
 applicable to the municipal courts of the city of New 
 
 *So in original.
 
 16 Boeough of Manhattan. Char., § 1360. 
 
 York shall be applicable to the court of the twelfth and 
 thirteenth districts. 
 
 § 4. The comptroller shall, without the concurrence 
 or approval of any other officer, board or department, 
 provide the fund necessary for the payment of the 
 salaries of the justices, clerks, assistant clerks, attend- 
 ants, stenographers and interpreters of the twelfth and 
 thirteenth district courts as constituted by this act, for 
 the year nineteen hundred and three, by the issue of 
 special revenue bonds as may be required to pay said 
 salaries. 
 
 § 5. This act, so far as it authorizes the appointment 
 by the mayor of justices of the twelfth and thirteenth 
 district courts shall take effect immediately ; but in all 
 other respects shall not take effect until twenty days 
 after it shall become a law. (As amended by Laws 
 1903, chap. 645, in effect May 22, 1903.) 
 
 Notes to Charter section 1360, " Borough of Manhattan." 
 
 The foregoing section will remain the law until January 1, 1906, 
 when, in pursuance of the act of the Legislature (Laws 1905, chap. 
 730), changes are made in the boundaries of the seventh, ninth, tenth, 
 and twelfth districts, and a new district, the fourteenth district, is 
 created. Laws 1905, chapter 730, is as follows: 
 
 Section 1. Section thirteen hundred and sixty of 
 the Greater New York charter as enacted by chapter 
 four hundred and sixty-six of the laws of nineteen hun- 
 dred and one is hereby amended so as to read as 
 follows : 
 
 CHARTER, § 1360. In the borough of Manhattan 
 there shall be fourteen districts as follows : 
 
 1. The first district embraces the third, fifth and 
 eighth wards of said borough of Manhattan, and all
 
 Char., § 1360. Borough of Manhattan. 17 
 
 that part of the first ward lying west of Broadway and 
 Whitehall street, including Xuttin or Governor's 
 island, Bedloe's island, Bucking or Ellis island, and 
 the Oyster islands. 
 
 2. The second* embraces the second, fourth, sixth 
 and fourteenth wards, and all that portion of the first 
 ward lying south and east of Broadway and White- 
 hall street. 
 
 3. The third district embraces the ninth and fif- 
 teenth wards. 
 
 4. The fourth district embraces the tenth and 
 seventeenth wards. 
 
 5. The fifth district embraces the eleventh ward 
 and all that portion of the thirteenth ward which lies 
 east of the center line of Norfolk street and north of 
 the center line of Grand street and west of the center 
 line of Pitt street and north of the center line of 
 Delancey street. 
 
 6. The sixth district embraces the eighteenth and 
 twenty-first wards. 
 
 7. The seventh district embraces the nineteenth 
 ward except that portion embraced in the fourteenth 
 district. 
 
 8. The eighth district embraces the sixteenth and 
 twentieth wards. 
 
 9. The ninth district embraces the twelfth ward, 
 except that portion thereof which lies west of the 
 center line of Lenox or Sixth avenue and of the Har- 
 lem river north of the terminus of Lenox avenue, and 
 that portion embraced in the fourteenth district. 
 
 * So in original. The word " district " is omitted.
 
 IS Borough of Manhattan. Char., § 1360. 
 
 10. The tenth district embraces that portion of the 
 twenty-second ward south of Seventieth street, ex- 
 cept that portion embraced in the fourteenth district. 
 
 11. The twelfth* district embraces that portion of 
 the twenty-second ward north of Seventieth street 
 and that portion of the twelfth ward which lies north 
 of the center line of Eighty-sixth street and west of 
 the center line of Seventh avenue and south of the 
 center line of One hundred and twentieth street be- 
 tween Seventh avenue and Broadway and south of 
 the center line of One hundred and nineteenth street 
 between Broadway and the North or Hudson river, 
 except that portion embraced in the fourteenth 
 district. 
 
 12. The eleventh* district embraces that portion of 
 the twelfth -ward which lies north of the center line of 
 West One hundred and tenth street between Lenox 
 avenue and Seventh avenue north of the center line 
 of One hundred and twentieth street between Seventh 
 avenue and Broadway, and north of the center line of 
 One hundred and nineteenth street between Broad- 
 way and the North or Hudson river, and west of the 
 center line of Lenox or Sixth avenue and of the 
 Harlem river north of the terminus of Lenox or Sixth 
 avenue. 
 
 13. The thirteenth district embraces the seventh 
 ward and all that portion of the thirteenth ward which 
 lies east of the center line of Norfolk street and south 
 of the center line of Grand street and east of the 
 
 *So in original.
 
 Char., § 1360. Borough of Manhattan. 19 
 
 center line of Pitt street and south of the center line 
 of Delancey street. 
 
 14. The fourteenth district embraces that portion 
 of the borough of Manhattan bounded as follows : 
 Beginning at West Fortieth street and Eighth avenue, 
 north on Eighth avenue to West Fifty-third street, 
 east on West Fifty-third street to Seventh avenue, 
 north on Seventh avenue to West Fifty-ninth street, 
 west on West Fifty-ninth street to Eighth avenue, 
 north on Eighth avenue and Central Park West to the 
 Transverse road at Central Park West and West 
 Ninety-seventh street, east on the Transverse road to 
 Fifth avenue and East Ninety-seventh street, south 
 on Fifth avenue to East Ninety-sixth street, east on 
 Ninety-sixth street to Lexington avenue, south on 
 Lexington avenue to East Sixty-fifth street, west on 
 East Sixty-fifth street to Park avenue, south on Park 
 avenue to East Sixty-first street, east on East Sixty- 
 first street to Lexington avenue, south on Lexington 
 avenue to East Fortieth street, west on East and 
 West Fortieth street to the point of beginning at 
 West Fortieth street and Eighth avenue. 
 
 § 2. There shall be elected at the general election 
 to be held on the first Tuesday after the first Monday 
 of November, nineteen hundred and five, a justice for 
 the said fourteenth district by the electors thereof. 
 Such justice shall enter upon the performance of his 
 duties on the first day of January succeeding his 
 election, and his term of office shall be for ten years. 
 The board of estimate and apportionment may meet 
 at any time to provide for the immediate expenses of
 
 20 Borough of Manhattan. Char., § 1360. 
 
 the municipal court of the said fourteenth district, in- 
 cluding the payment of salaries. The commissioner 
 of the sinking fund shall secure, by renting, or by the 
 purchase of a plot of ground, and erecting a build- 
 ing thereon, suitable rooms for the use of the said 
 court, and the commissioner of public works shall pro- 
 vide suitable furniture, books, blanks, stationery, and 
 other articles necessary for the use of said court. 
 The justices, stenographers, clerks, assistant clerks, 
 attendants, interpreters heretofore elected or ap- 
 pointed for the seventh, ninth, tenth and twelfth dis- 
 tricts as constituted at the time of the passage of this 
 act, are to continue . in office for the seventh, ninth, 
 tenth and twelfth districts, respectively, as consti- 
 tuted by this act. 
 
 § 3. The comptroller shall, without the concurrence 
 or approval of any other officer, board or department, 
 provide the fund necessary for the securing of suit- 
 able rooms for the use of the said court in the four- 
 teenth district and providing it with suitable furni- 
 ture, books, blanks, stationery and other articles 
 necessary for the use of the said court by the issue 
 of special revenue bonds as may be required to pay 
 said expenses. 
 
 § 4. This act, so far as it requires the securing of 
 suitable rooms, furniture, books, blanks, stationery and 
 other articles necessary for the use of the said court 
 in the fourteenth district; so far as it authorizes the 
 payment of the expenses so incurred; and so far as it 
 provides for elections to be held during the year nine- 
 teen hundred and five, shall take effect immediately,
 
 Char., § 1361. Borough of Brooklyn. 21 
 
 but in all other respects shall not take effect until 
 January first, nineteen hundred and six. (As amended, 
 Laws 1905, chap. 730.) 
 
 Borough of Brooklyn. 
 
 CHARTER, § 1361. In the borough of Brooklyn 
 there shall be seven districts, as follows: 
 
 1. The first district embraces the first, second, 
 third, fourth, fifth, sixth, tenth and twelfth wards and 
 that portion of the eleventh ward beginning at the 
 intersection of the centre lines of Hudson and Myrtle 
 avenues, thence along the centre line of Myrtle avenue 
 to North Portland avenue, thence along the centre 
 line of North Portland avenue to Flushing avenue, 
 thence along the centre line of Flushing avenue to 
 Navy street, thence along the centre line of Navy 
 street to Johnson street, thence along the centre line 
 of Johnson street to Hudson avenue, and thence along 
 the centre line of Hudson avenue to the point of 
 beginning. 
 
 2. The second district embraces the seventh ward 
 and that portion of the twenty-first and twenty-third 
 wards west of the centre line of Stuyvesant avenue 
 and the centre line of Schenectady avenue, also that 
 portion of the twentieth ward beginning at the inter- 
 section of the centre lines of North Portland and 
 Myrtle avenues, thence along the centre line of 
 Myrtle avenue to Waverly avenue, thence along the 
 centre line of Waverly avenue to Park avenue, thence 
 along the centre line of Park avenue to Wash- 
 ington avenue, thence along the centre line of Wash-
 
 22 Bokough of Brooklyn. Char., § 1361. 
 
 ington avenue to Flushing avenue, and thence along 
 the centre line of Flushing avenue to North Portland 
 avenue, and thence along the centre line of North 
 Portland avenue to the point of beginning. 
 
 3. The third district embraces the thirteenth, four- 
 teenth, fifteenth, sixteenth, seventeenth, eighteenth 
 and nineteenth wards and that portion of the twenty- 
 seventh ward lying northwest of the centre line of 
 Starr street between the boundary line of Queens 
 county and the centre line of Central avenue and 
 northwest of the centre line of Suydam street between 
 the centre lines of Central and Bushwick avenues, and 
 northwest of the centre line of Willoughby avenue be- 
 tween the centre lines of Bushwick avenue and Broad- 
 way. 
 
 4. The fourth district embraces the twenty-fourth 
 and twenty-fifth wards, that portion of the twenty- 
 first and twenty-third wards lying east of the centre 
 line of Stuyvesant avenue and east of the centre line 
 of Schenectady avenue and that portion of the twenty- 
 seventh ward lying southwest of the centre line of 
 Starr street between the boundary line of Queens 
 county and the centre line of Central avenue, and 
 southeast of the centre line of Suydam street between 
 the centre lines of Central and Bushwick avenues, and 
 southeast of the centre line of Willoughby avenue 
 between the centre lines of Bushwick avenue and 
 Broadway. 
 
 5. The fifth district embraces the eighth, thirtieth 
 and thirty-first wards and that portion of the twenty- 
 second ward south of the centre line of Prospect 
 avenue.
 
 Char., § 1361. Borough of Brooklyn. 23 
 
 6. The sixth district embraces the ninth and twenty- 
 ninth wards and that portion of the twenty-second 
 ward north of the centre line of Prospect avenue, also 
 that portion of the eleventh and twentieth wards be- 
 ginning at the intersection of the centre lines of 
 Bridge and Fulton streets, thence along the centre 
 line of Fulton street to Flatbush avenue, thence along 
 the centre line of Flatbush avenue to Atlantic avenue, 
 thence along the centre line of Atlantic avenue to 
 Washington avenue, thence along the centre line of 
 Washington avenue to Park avenue, thence along the 
 centre line of Park avenue to Waverly avenue, thence 
 along the centre line of Waverly avenue to Myrtle 
 avenue, thence along the centre line of Myrtle ave- 
 nue to Hudson avenue, thence along the centre line 
 of Hudson avenue to Johnson street, and thence along 
 the centre line of Johnson street to Bridge street, and 
 thence along the centre line of Bridge street to the 
 point of beginning. 
 
 7. The seventh district embraces the twenty-sixth, 
 twenty-eighth and thirty-second wards. 
 
 § 3. This act shall not affect any action or proceed- 
 ing in the municipal courts as presently constituted, 
 pending before the first day of January nineteen hun- 
 dred and six or affect until then any of the districts 
 mentioned in said section thirteen hundred and sixty- 
 one of said act before this amendment thereof or 
 affect in any wise the justices of the districts now 
 existing, who shall until the expiration of their re- 
 spective terms be and continue as justices of said 
 court for the districts for which they were elected,
 
 24 Borough of Brooklyn. Char., § 1361. 
 
 and of the districts by this act territorially changed 
 and altered, bearing the same number as that in and 
 for which they were respectively elected. The com- 
 missioners of the sinking fund shall procure by rent- 
 ing, purchase, or by purchase of a plot of ground and 
 erecting a building thereon, suitable rooms for the use 
 of the courts of the sixth and seventh districts by 
 this act created, and the commissioner of public works 
 shall provide suitable furniture, books, blanks, station- 
 ery and other articles necessarv therefoi, in time for 
 the effectual operation of said courts on the first day 
 of January, nineteen hundred and six. The board of 
 estimate and apportionment may meet at any time 
 to provide for the expense of securing such suitable 
 rooms for and furnishing and equipping said courts, 
 and shall make provision for the payment of the 
 salaries of the justices, clerks, assistant clerks, stenog- 
 raphers, interpreters and court attendants in said 
 districts for the year nineteen hundred and six, and 
 shall annually include in the budget such sums as 
 may be necessary to pay such salaries, and the comp- 
 troller of the city of New York, in order to secure such 
 rooms and equip said courts, shall, without the con- 
 currence of any other officer, board or department 
 provide the fund necessary therefor by the issue of 
 special revenue bonds of said city. 
 
 § 4. All acts and parts of acts inconsistent herewith 
 are hereby repealed. 
 
 § 5. This act shall take effect immediately. (As 
 amended by Laws 1905, chap. 758.)
 
 Char., § 13 Gl. Borough of Brooklyn. 25 
 
 Notes to Charter section 1373, "Clerks and Assistant Clerks." 
 
 Clerks and assistant clerks; removal of veteran. — Section 1373 of 
 the revised Greater New York charter (Laws 1901, chap. 4GG), as 
 amended by chapter 497 of the Laws of 1902, which authorizes a justice 
 of the Municipal Court of the city of Xew York to remove an attendant 
 employed about the court, upon giving him notice of the cause of his 
 proposed removal and an opportunity to make an explanation, is to 
 be construed, in the case of a veteran of the Spanish-American war, in 
 connection with and is limited by section 21 of the Civil Service Law 
 (Laws 1S99, chap. 370, as amended by Laws 1902, chap. 270), which 
 provides that no honorably discharged soldier who served in the volun- 
 teer army of the United States during the Spanish war shall be re- 
 moved from the position or employment held by him except for in- 
 competence or misconduct shown, " after a hearing, upon due notice, 
 upon stated charges, and with the right to such employee or appointee 
 to a review by a writ of certiorari." People ex rel. Reilly v. Hoffman, 
 98 App. Div. 4. 
 
 Notes to Charter section 1383, " Removal." 
 
 Removal of justice; causes for; the office is vacated by a change 
 of residence; inhabitant defined; remedy by quo warranto; the rules of 
 the Municipal Court have the force of law; favoritism by the justice; 
 assignment of a cause of action to enable suit to be brought in a par- 
 ticular court; what ex parte applications in actions in another court 
 may be made to a justice; an order to exhibit writings must be made 
 by the court; application of the practice in the Supreme Court; open- 
 ing defaults. — A judicial officer may not be removed for merely mak- 
 ing an erroneous decision or ruling, but he may be removed for will- 
 fully making a wrong decision or an erroneous ruling or for a reckless 
 exercise of his judicial functions without regard to the right of liti- 
 gants, or for manifesting friendship or favoritism toward one party 
 or his attorney to the prejudice of another and to the destruction of 
 his usefulness as a magistrate through the loss of public confidence in 
 his fairness or integrity. Under section 1353 of the amended Greater 
 New York charter (Laws of 1901, chap. 466), which provides that a 
 justice of the Municipal Court of the city of New York shall be " a 
 resident and elector " of the district for which he shall be elected or 
 appointed, and under the provision of the Public Officers Law (Laws 
 of 1892, chap. 681), which provides that every office shall become 
 " vacant " upon the incumbent's ceasing to be an " inhabitant " of the 
 political division of which he is required to be a " resident " when 
 elected or appointed, the action of a justice of the Municipal Court of 
 the city of New York in the borough of Manhattan, second district, in 
 removing from said district after his election and becoming an in- 
 habitant of White Plains, Westchester county, N. Y., furnishes suf-
 
 26 Summons and Costs in City Cases. Char., § 1384. 
 
 ficient ground for the removal of said justice by the Appellate Division 
 in proceedings instituted under section 1383 of the Greater New York 
 charter, even though the justice in question, when he removed to White 
 Plains, did not intend to give up his residence in the district for which 
 he had been elected or to forfeit his office. 
 
 The term " inhabitant," as used in the provision of the Public Officers 
 Law, before mentioned, has reference to the officer's abode or domicile 
 as distinguished from his legal residence. Quccre, whether, under such 
 circumstances, the justice in question could be removed from his office 
 in an action of quo tvarranto. 
 
 Rules enacted by the board of justices of the Municipal Court, pur- 
 suant to section 12 of the Municipal Court Act (Laws of 1902, chap. 
 580), have the force of law and are binding upon the individual justices. 
 
 Favoritism in the performance of judicial duties constitutes cor- 
 ruption. The willful abuse of judicial discretion is the most oppressive 
 and injurious kind of official misconduct. 
 
 The fact that an assignment of a cause of action was made for the 
 purpose of enabling an action to enforce the same to be brought in a 
 particular district of the Municipal Court of the city of New Y'ork 
 does not invalidate the assignment, but such practice should not be 
 encouraged. 
 
 Rule 15 of the rules of the Municipal Court of the city of New Y'ork 
 which provides that ex parte applications may be made to any justice, 
 only authorizes applications in actions pending in one district to a 
 justice of another district for such orders as may be granted by a 
 justice as distinguished from the court. 
 
 The authority contained in section 165 of the Municipal Court Act, 
 for ordering the exhibition of a writing or account declared on in an 
 action in the Municipal Court, is conferred upon the court and not 
 upon a justice thereof. The section does not authorize the examination 
 of books as by a bill of discovery. 
 
 The extension of the practice in courts of record to the Municipal 
 Court of the city of New York by section 20 of the Municipal Court 
 Act was merely intended to regulate the matters over which the 
 Municipal Court has jurisdiction. 
 
 Section 253 of the Municipal Court Act, authorizing the opening of 
 defaults or omissions on such notice as the court may direct, contem- 
 plates an order by the court in which the default was taken. Matter 
 of Bolte, 97 App. Div. 551. 
 
 Summons and costs in actions by city of New York, for recov- 
 ery of penalties. 
 CHARTER, § 1384. In any and all actions brought 
 in the name of the people of the state of New York
 
 Char., § 1384. Summons and Costs in City Cases. 27 
 
 by the attorney general or in the name of the city of 
 New York, or of any department, board or officer 
 thereof, by the corporation counsel of the city of New 
 York, as attorney for said city, or said department, 
 board or officer thereof, to recover a penalty or 
 penalties for the violation of any law or ordinance, 
 the summons may be issued out of said court by the 
 attorney general or by the corporation counsel in his 
 own name without the same being subscribed by the 
 clerk of the court where such action or actions are 
 brought, and in such actions the attorney general or 
 the corporation counsel shall not be required to pay 
 to the clerk of the court the fees in the action, but 
 shall account therefor to the city treasurer and shall 
 collect the same from the defendant, when judgment 
 is recovered; and no fees or costs shall be demanded 
 of the people of the state of New York or the attorney 
 general or of the said the city of New York, or any 
 department, board or officer thereof in any such suit 
 or proceeding. (As amended by Laws 1905, chap. 125; 
 became a law March 31, 1905.) 
 
 Note to Charter section 1384. 
 
 This section is the same as section 29 of the Municipal Court Act 
 (Laws 1905, chap. 73), which became a law March 17, 1905, with the 
 exception of the omission of the word " department " before the word 
 " board " in the last line. 
 
 Notes to Charter section 1427, " Marshals." 
 
 Additional personal property exempt in certain cases. — See amend- 
 ment to Code Civil Procedure, section 1391, by Laws 1905, chapter 175, 
 to be found under section 271, p. 103 of this supplement.
 
 THE 
 
 MUNICIPAL COURT ACT OF THE CITY OF 
 NEW YORK. 
 
 (LAWS 1902, CHAP. 280), AS AMENDED BY LAWS 1903, 1904, 
 AND 1905, WITH NOTES OF THE DECISIONS BY THE COURTS 
 AFFECTING- THE SAME. 
 
 § 1. Jurisdiction. — Except as provided in the next section 
 the municipal court of the city of New York has jurisdiction 
 in the following civil actions and proceedings : 
 
 1. An action to recover damages upon or for breach of 
 contract, express or implied, other than a promise to marry, 
 where the sum claimed does not exceed five hundred dollars, 
 exclusive of interest and costs. 
 
 2. An action upon a bond conditioned for the payment of 
 money where the sum claimed to be due does not exceed five 
 hundred dollars, exclusive of interest and costs, the judgment 
 to be rendered for the sum actually due. Where the sum 
 secured by the bond is to be paid in installments, an action 
 may be brought for each installment as it becomes due. 
 
 3. An action upon a surety bond or undertaking taken in 
 any court where the amount claimed in the summons does 
 not exceed the sum of five hundred dollars, exclusive of 
 interest and costs. 
 
 4. An action in behalf of the people of the state or of the 
 city of New York, brought by the direction of a commissioner 
 of public charities or an overseer of the poor upon a bastardy 
 or abandonment bond in a case where it is prescribed by law 
 tli at such an action can be maintained. 
 
 5. An action upon the bond of a marshal of the city of 
 New York, as prescribed in this act. 
 
 6. An action upon a judgment rendered in any court not 
 being a court of record. 
 
 7. An action for a fine or penalty not exceeding five hun- 
 dred dollars, including an action to recover a penalty given 
 
 [29]
 
 30 Jurisdiction and General Powers. § 1. 
 
 by the charter of the city of Xew York or any by-law or 
 ordinance thereof or by any statute of the state. 
 
 8. An action to recover damages for an escape from the 
 jail liberties of any county within the city of ISTew York, 
 where the sum claimed does not exceed five hundred dollars 
 and costs. 
 
 9. An action to recover one or more chattels with or with- 
 out damages for the taking, withholding or detention thereof, 
 where the value of the chattel or of all the chattels as stated 
 in the affidavit made on the part of the plaintiff does not 
 exceed five hundred dollars. 
 
 10. An action to foreclose a lien upon a chattel for a sum 
 of money, in any case where such a lien exists at the com- 
 mencement of the action and where the amount of the lien 
 does not exceed five hundred dollars, exclusive of interest 
 and costs. 
 
 11. An action to enforce a mechanic's lien on real property 
 in which the court shall have power to render judgment for 
 the sum due, and to declare the amount a valid lien against 
 the interest of the defendant in the property described in the 
 complaint, at the time of the filing of the lien, where the 
 amount does not exceed five hundred dollars, exclusive of 
 interest and costs, but said court cannot render judgment for 
 the foreclosure and sale of the property. 
 
 12. A summary proceeding under title two of chapter 
 seventeen of the code of civil procedure to recover possession 
 of real property which, or a portion of which, is situated 
 within the district wherein the application for such recovery 
 is made. Such proceeding may be tried with or without a 
 jury, which may be demanded by any party thereto. The 
 court in either case has power upon application, to allow the 
 petition or answer to be amended at any time, if substantial 
 justice will be promoted thereby and the rights of the parties 
 have not been impaired by reason of the defective pleading, 
 to direct or set aside a verdict, and to grant or deny a motion 
 for a new trial, and an appeal may be taken therefrom. 
 
 13. An action for damages for fraud or deceit where the 
 damages claimed do not exceed five hundred dollars.
 
 § 1. Jurisdiction and General Powers. 31 
 
 14. An action to recover damages for a personal injury, 
 or for loss of services or for medical or other necessary ex- 
 penses occasioned thereby, or an injury to property, where 
 the sum claimed does not exceed five hundred dollars, and 
 costs, excepting however, actions to recover damages for an 
 assault, battery, malicious prosecution, false imprisonment, 
 libel, slander, criminal conversation, seduction, or loss of 
 society of husband or wife. 
 
 15. To issue or vacate a requisition to replevy, a warrant 
 of attachment, or an order of arrest ; or grant or vacate a stay 
 of execution, or of proceedings, within the limitations pro- 
 vided in this act. But such stay shall not exceed five days. 
 
 16. To render judgment in an action or make a final order 
 in summary proceedings upon confession or upon the consent 
 of both parties. 
 
 IT. Other civil actions or proceedings of which district 
 courts in the city of New York, or justices of the peace had 
 jurisdiction on the thirty-first day of December, eighteen 
 hundred and ninety-seven, except such as shall be expressly 
 excluded by this act. 
 
 18. The jurisdiction extends to actions against the city of 
 New York, a domestic corporation, or a foreign corporation 
 having an office in the city of New York, an administrator 
 or executor as such, where the amount claimed does not exceed 
 five hundred dollars, exclusive of interest and costs. 
 
 19. In an action or a summary proceeding, to direct or set 
 aside a verdict, vacate, amend or modify a judgment or final 
 order, rendered, or made on consent, confession, inquest or 
 trial, grant a new trial, open a. default, or in a proper case 
 grant a new trial on the ground of fraud or newly discovered 
 evidence. (As amended by Laws 1905, chap. 513, and be- 
 came a law May 17, 1905.) 
 
 NOTE. 
 
 The amendments add to subdivisions 1, 2, 3, 10, 11, and 18 the words 
 " exclusive of interest and costs," and to subdivisions 8 and 14 the 
 words " and costs."
 
 32 Jurisdiction and General Powers. § 1. 
 
 Notes to section i, "Jurisdiction." 
 
 Actions to recover less than $250 must be brought in this court, and 
 actions to recover less than $500 must be brought in the City Court of 
 the city of New York or the County Court of Kings county. — 
 Section 1. Section three thousand two hundred and twenty-eight of the 
 Code of Civil Proa dure is hereby amended by adding thereto a new 
 subdivision to be numbered five and to read as follows: 
 
 5. In all actions hereafter brought in the Supreme Court, triable in 
 the county of New York or the county of Kings, which could have been 
 brought, except for the amount claimed therein, in the City Court of 
 the City of New York or the County Court of Kings county, and in 
 which the defendant shall have been personally served with process 
 within the counties of New York or Kings, the plaintiff shall recover 
 no costs or disbursements unless he shall recover five hundred dollars 
 or more; and in all actions hereafter brought in the City Court of the 
 City of New York or the County Court of Kings county, which could 
 have been brought, except for the amount claimed therein, in the 
 Municipal Court of the city of New York, and in which the defendant 
 shall have been personally served with process within the city of New 
 York, the plaintiff shall recover no costs or disbursements unless he 
 shall recover two hundred and fifty dollars or more. The fact that in 
 any action a plaintiff is not entitled to costs under the provisions of 
 this subdivision shall not entitle the defendant to costs under the next 
 following section. 
 
 § 2. This act shall take effect September one, nineteen hundred and 
 four. (As amended by Laws 1904, chap. 557.) 
 
 Amended rules; City Court of the city of New York; January 5, 1905; 
 Rule 4. — No action brought for the recovery of less than $250 which 
 could have been brought in the Municipal Court of the city of New 
 York will be advanced to the special calendar. 
 
 vSubstituted service; proof thereof requisite to jurisdiction. — Proof 
 of due substituted service and a compliance with section 34 of the 
 Municipal Court Act are essential to jurisdiction. A mere memorandum 
 on the summons of payment of fees is not such proof of substituted 
 service. Objection to jurisdiction on such ground may be raised at any 
 time. Skinner v. Jordan, 46 Misc. Rep. 92. 
 
 Waiver of jurisdiction. — The fact, that after the denial of the motion 
 to vacate the attachment, the action was dismissed because of the 
 failure of either party to appear on the day set for its trial, and that 
 the defendant subsequently consented that the case be restored to the 
 calendar and allowed judgment to be taken against him by default, 
 does not operate as a waiver of the defendant's right to contest the 
 jurisdiction of the court. Delaney v. Bouse, 91 App. Div. 437.
 
 § 1. Jurisdiction and General Powers. 33 
 
 Notes to section i, subdivision i. 
 
 Author's contract for royalties; effect of prior contract for the pub- 
 lication, not carried out. — Where a publisher contracts to publish a 
 novel " in book form " it is no defense to an action by the author for 
 the royalties that he, with the knowledge of the defendant, had previ- 
 ously contracted with another publisher for the publication of the 
 same book, the conditions being that the book be published within a 
 given time (which was not done), and which failure gave to the author 
 a reversion of the rights upon the payment of a given sum. 
 
 Nor is it a defense that the author has not yet paid such given sum 
 to the other publisher, because, under the contract, the defendant pur- 
 chased the plaintiff's permission to publish, not the right. Barry v. 
 Smart Set Publishing Co., 45 Misc. Rep. 402. 
 
 Bankruptcy; guarantor for rent held liable. — In an action to re- 
 cover rent upon a guarantee of defendant to pay the same, the adjudi- 
 cation of the lessee a bankrupt does not terminate the lease and the 
 defendant is liable for the rent. Witthaus v. Zimmermann, N. Y. Law 
 Journal, January 20, 1903, Joseph, J., sitting in the seventh district, 
 Borough of Manhattan. 
 
 Brokers' commissions. — A broker employed to procure a loan upon 
 property, who induces a person financially able, and otherwise com- 
 petent to make the loan, to execute a written acceptance of the ap- 
 plication for the loan is not entitled to a commission, if such person 
 subsequently refuses to make the loan. Ashfield V. Case, 93 App. Div. 
 452. 
 
 For notes and cases on brokers' commissions, see 25 Abb. N. C. 206, 
 209, etc. 
 
 Authority to sell; written; constitutionality; Penal Code, section 
 64od, requiring an agent to obtain written authority to sell real estate 
 is unconstitutional; what the court may consider in determining whether 
 a statute is reasonable; limitations on the .legislative power to regulate 
 business. — Section 640d, added to the Penal Code by chapter 128 of 
 the Laws of 1901, which provides that " in cities of the first class and 
 the second class any person who shall offer for sale any real property 
 without the written authority of the owner of such property or of his 
 attorney in fact, appointed in writing, or of a person who has made a 
 written contract for the purchase of such property with the owner 
 thereof, shall' be guilty of a misdemeanor," is unconstitutional in that 
 it is an unreasonable interference with the liberty secured to the person 
 affected thereby by both the New York State and Federal Constitutions. 
 
 In determining the reasonableness of a statute the court is at liberty 
 to consider the established usages, customs, and traditions of the people 
 and to have in view the promotion of their comfort and the preservation 
 of public peace and good order. To justify the State in regulating 
 a business or occupation in behalf of the public it must appear, first, 
 3
 
 3-i Jurisdiction and General Powers. § 1. 
 
 that the interests of the public, generally, as distinguished from those 
 of a particular class, require such interference, and, second, that the 
 means are reasonably necessary for the accomplishment of the purpose 
 and are not unduly oppressive upon individuals. The Legislature can- 
 not, under the guise of protecting the public interests, arbitrarily inter- 
 fere with private business or impose unusual or unnecessary restric- 
 tions upon lawful occupations. Grossman v. Caminez, 79 App. Div. 15. 
 
 Section 64od of the Penal Code, making it a misdemeanor to sell or 
 offer to sell in cities of the first and second class real estate without 
 the written authority of the owner is constitutional. — Semite, that sec- 
 tion 640(1 of the Penal Code, added by chapter 128 of the Laws of 1901, 
 which provides that in cities of the first and second class any person 
 who shall offer real property for sale without the written authority 
 of the owner is guilty of a misdemeanor, is constitutional and a 
 reasonable exercise of the police power. (See contra, Grossman v. 
 Caminez, 79 App. Div. 15.) 
 
 Criminal laws are not necessarily unconstitutional because they bear 
 unequally upon persons in different parts of the State. Whiteley v. 
 Terry, S3 App. Div. 197. 
 
 Where the attorney in fact for the owner of a parcel of real property 
 in a city of the first class employs a broker to effect an exchange of 
 such real estate and executes and delivers to such broker, with the 
 intention of authorizing him to negotiate the transfer, the following 
 instrument: "They will take 86st subject to 1st and 2nd mortgages. 
 We to take 2Gth ward lots subject to taxes and assessments not to 
 exceed $6,500.00. William Dempsey," such instrument is a substantial 
 compliance with section 640d of the Penal Code, which provides that in 
 cities of the first and second class, " any person who shall offer for 
 sale any real property without the written authority of the owner of 
 such property, or of his attorney in fact, appointed in writing," etc., 
 shall be guilty of a misdemeanor. Assuming the statute in question 
 to be constitutional, the failure of a broker, employed to effect the sale 
 or exchange of real estate in the city of New York, to procure the 
 written authority required by the statute, will not, where the contract 
 of sale or exchange has been executed, prevent the broker from recov- 
 ering his commissions, gemble, however, that the statute is uncon- 
 stitutional. Where a contract, not unlawful in itself, has been executed 
 and the parties have enjoyed the benefits of the contract, the mere 
 fact that one of the parties has violated a penal statute in the approach 
 to the contract will not prevent the court from enforcing payment. 
 Cody v. Dempsey, 86 App. Div. 336. 
 
 Construction of section 64od Penal Code. — A broker is no guarantor 
 of the validity of the title to real property offered by him for sale at 
 his own risk of fine and imprisonment. A broker who offers property 
 for sale after having in good faith obtained the written authorization 
 of the ostensible owner thereof has complied with the spirit of the
 
 § 1. JURISDICTION AND GENERAL POWERS. 35 
 
 law, and the letter thereof must yield to such a reasonable and sensible 
 construction. If there are other parties also owners whose authoriza- 
 tion was not obtained, that does not relieve the defendant, who as 
 ostensible owner employed the broker, from liability to pay commis- 
 sion, nor is there any question of public policy involved preventing him 
 enforcing his contract with defendant. Phelps v. Becker, N. Y. Law 
 Journal, October 9, 1903, Tierney, J., sitting in the secojid district, 
 Borough of the Bronx. 
 
 Sales for future delivery; proof necessary to recover where such 
 sales alleged to be mere wagers; account stated, when not proven. — In 
 an action by the assignee of a broker to recover commissions and losses 
 on a sale of cotton for future delivery the answer denied that the sale 
 was bona fide and alleged it to be in violation of the law against 
 gambling and a mere wager on the price of cotton. Held, in order to 
 recover, the plaintiff must give competent evidence of a genuine sale 
 and loss. Mere memoranda of telephonic communications purporting 
 tc carry out defendant's order are hearsay and are insufficient to estab- 
 lish such sale and on such evidence it is error to refuse to dismiss the 
 complaint. The 'defendant, having denied his liability, in a personal 
 interview with the plaintiff's assignor, made no reply to a statement 
 of account thereafter sent him. Held, such silence does not bind the 
 defendant on an account stated. Jacobs v. Colin, 46 Misc. Rep. 115. 
 
 Building; damages for the breach of a contract to remove, within a 
 specified time; $500 and interest and costs are demanded; bill of par- 
 ticulars for $507.33. — An action brought in this court to recover dam- 
 ages resulting from the breach by the defendant of a contract to re- 
 move a building within a specified time was begun by the service of the 
 summons alone, which summons stated that in the event of the defend- 
 ant's default the plaintiffs would "take judgment against you for the 
 
 sum of $500 00/100, * * * with interest from the day of 
 
 , 190. ., together with the costs of this action." 
 
 The plaintiffs subsequently served a bill of particulars in which they 
 alleged that the damages resulting from the breach of contract amounted 
 to $507.33. The action was tried and resulted in a judgment for the 
 plaintiffs of $294.37, which included damages and costs. 
 
 Held, that it was improper to reverse the judgment and dismiss the 
 complaint on the ground that the demand of the plaintiffs was for a 
 greater sum than $500 and that consequently the Municipal Court had 
 no jurisdiction of the action; that the demand for costs in excess of 
 the $500 did not oust the court of jurisdiction, as such costs were not 
 a part of the plaintiffs' demand but a mere incident to the recovery; 
 that the demand for interest did not oust the court of jurisdiction, for 
 the reason that the plaintiffs were not entitled to recover interest as 
 such, their damages being unliquidated ; that the statement in the bill 
 of particulars that the damages amounted to $507.33 did not deprive 
 the court of jurisdiction, as the plaintiffs were at liberty, under section
 
 36 Jurisdiction and General Powers. § 1. 
 
 250 of the Municipal Court Act, to remit the excess over $500. Ham- 
 burger v. Hellman, 103 App. Div. 263. 
 
 Carrier; measure of damages against. — A lawyer, delayed by a rail- 
 road wreck and who has not informed the carrier of special circum- 
 stances which make it necessary for him to reach his destination on 
 schedule tiino, can recover of the carrier merely compensatory dam- 
 ages — the value of his time, during the period of delay, based upon 
 the average of what he had earned for at least a year preceding the 
 time of the occurrence. Cooley v. Pennsylvania R. R. Co., 40 Misc. Rep. 
 239. 
 
 Chattel mortgages; conversion; when demand necessary; section 139 
 does not prevent chattel mortgagees from taking possession under 
 mortgage. — In an action for conversion against a chattel mortgagee, 
 alleged to have replevied the property in violation of section 139 of the 
 Municipal Court Act which provides that no action can be maintained 
 in said court on a chattel mortgage except to foreclose the same, 
 held, where the judgment-roll in the alleged action to replevin re- 
 turned on appeal was only marked at trial for identification and was 
 not put in evidence and is defective in proof of service of summons 
 and in that no writ of replevin is attached, etc., the appellate court is 
 bound by the record. There is nothing to show that the property was 
 taken on replevin. 
 
 Held, further, that as the chattel mortgage gave to the mortgagee a 
 right to enter, take away, and sell the goods, etc., there is nothing in 
 such record to show that defendant's possession was not rightfully 
 obtained under the mortgage. 
 
 The aforesaid limitation of section 139 of the Municipal Court Act 
 does not preclude a chattel mortgagee from taking the possession ac- 
 cording to the terms of the mortgage. 
 
 If the taking of goods is lawful it does not become unlawful without 
 a subsequent demand for compliance with the terms of the mortgage, 
 or a demand with tender of amount due. Shelton v. Holzicasser, 46 
 Misc. Rep. 76. 
 
 Conversion, based on a breach of a written contract for the condi- 
 tional sale of personal property, will not lie. — Section 139 of the act 
 relating to the Municipal Court of the city of Xew York (Laws of 1902, 
 chap. 580) which provides, "No action shall be maintained in this 
 court, which arises on a written contract of conditional sale of personal 
 property, where title is not to vest in the person hiring until payment 
 of a certain sum ; or a chattel mortgage made to secure the purchase 
 price of chattels; except, an action to foreclose the lien, as provided in 
 this article," limits the jurisdiction of the court with respect to actions 
 for a breach of a written contract for the conditional sale of personal 
 property, and a party having such a cause of action cannot maintain 
 an action in that court for the conversion of such property on the 
 ground that the cause of action is for " an injury to property " within
 
 § 1. JURISDICTION AND GENERAL POWERS. 37 
 
 the meaning of subdivision 14 of section 1 of the act. Samodwitz v. 
 Karpf, SO App. Div. 496. 
 
 Damages; breach of contract. — Where the evidence in an action for 
 breach of contract to dye certain ribbons does not show that they were 
 rendered absolutely worthless, but only of no value to plaintiffs, a 
 judgment for damages for the full amount of their original value is 
 excessive. Emmerich v. Chegnay, 46 Misc. Rep. 456. 
 
 Employment and wages; damages. — An action to recover damages 
 for a breach of a contract of ' employment, because of the employee's 
 wrongful discharge before the expiration of the term of employment, is 
 entirely distinct from an action brought by the employee to recover 
 wages. 
 
 In the first-mentioned form of action it is not necessary for the 
 employee to aver and show affirmatively that he unsuccessfully sought 
 other employment or that he stood in readiness to perform after the 
 contract had been terminated, but the burden rests upon the employer 
 to show that other employment might have been found or that it had 
 been offered and declined. The fact that the complaint in such an 
 action demands money as due rather than by way of damages does 
 not necessarily render it defective. 
 
 When a complaint, although drawn by the pleader on the theory of 
 an action for wages, contains sufficient allegations to warrant the 
 court in construing it as one to recover damages for breach of the con- 
 tract of employment, considered. Allen V. Glen Creamery Co., 101 App. 
 Div. 306. 
 
 Foreign corporation, having an office in said city, as surety upon a 
 city marshal's bond. — The jurisdiction of this court to render judgment 
 against a foreign corporation, having an office in said city and being 
 surety on the bond of a city marshal, is to be determined by the 
 Municipal Court Act (Laws 1902, chap. 580, § 1, subds. 5 and 18) and 
 under these subdivisions when read together there is no jurisdiction 
 where the plaintiff claims more than $500. Section 296 of said act 
 authorizing a justice of the Supreme Court to order prosecution in the 
 said Municipal Court of a marshal's bond — without limitation as to 
 its amount — cannot aid the plaintiff and is to be condemned as an 
 attempt to give such a justice power to confer upon the said Municipal 
 Court jurisdiction in such a case beyond $500. Frieland v. Union Surety 
 Co., 43 Misc. Rep. 38. 
 
 Husband and wife; medical services. — In an action against a hus- 
 band for medical services rendered to his wife, who is living apart from 
 him, it is essential to show that the separation was due to the husband's 
 fault, and the burden of such proof is on the plaintiff. Exclusion of 
 evidence offered by the defendant to show that there was no cause for 
 his wife refusing to live with him is error. Wolf v. Schulman, 45 
 Misc. Rep. 418.
 
 38 Jurisdiction and General Powers. § 1. 
 
 Support of wife; when the wife is liable for necessaries; evidence 
 insufficient to establish her liability; testimony given by an adverse 
 party; the party calling his adversary as a witness may controvert 
 his testimony. — The common-law duty of a husband to support his 
 family has not been changed by the legislation respecting married 
 women, and the liability for necessaries furnished to the family of a 
 married man rests presumptively and primarily upon the husband, 
 even though the contract therefor is made by the wife. Semble, that 
 the wife may, however, by express agreement, render herself personally 
 liable for necessaries furnished to her husband and family. What evi- 
 dence is insufficient to sustain a finding of such an express agreement 
 on the part of a wife, considered. A party who calls his adversary as 
 a witness is not precluded, under the rule which prohibits a party 
 from impeaching his own witness, from showing by other witnesses the 
 existence of a different state of facts from that testified to by his 
 adversary. Ruhl v. Heintze, 97 App. Div. 442. 
 
 Married woman's right of action for wages, et cetera. — A married 
 woman shall have a cause of action in her own sole and separate 
 right for all wages, salary, profits, compensation or other remunera- 
 tion for which she may render work, labor or services, or which 
 may be derived from any trade, business or occupation carried on by 
 her, and her husband shall have no right of action therefor unless she 
 or he with her knowledge and consent has otherwise expressly agreed 
 with the person obligated to pay such wages, salary, profits, compensa- 
 tion or other remuneration. In any action or proceeding in which a 
 married woman or her husband shall seek to recover wages, salary, 
 profits, compensation or other remuneration for which such married 
 woman has rendered work, labor, or services or which was derived 
 from any trade, business or occupation carried on by her or in which 
 the loss of such wages, salary, profits, compensation or other remunera- 
 tion shall be an item of damage claimed by a married woman or her 
 husband, the presumption of law in all such cases shall be that such 
 married woman is alone entitled thereto, unless the contrary expressly 
 appears. 
 
 § 2. The foregoing section shall not affect any right, cause of action 
 or defense existing before the date when this act shall take effect. 
 (Laws 1905, chap. 495, amending section 30 of chap. 272 of the Laws 
 of 189G, entitled "An act in relation to the domestic relations law, 
 constituting chap. 48 of the General Laws," as added by chap. 289 of 
 ihe Laics of 1892.) 
 
 When earnings belong to wife. — Under the acts relating to the 
 rights of married women (L. 1860, chap. 90, § 2; L. 1884, chap. 381, 
 § 1), the earnings of the wife from services rendered to a third party, 
 distinct from the common-law duties she owes her husband in the 
 marital relation, in this case as a nurse or attendant, belong to the
 
 § 1. JUKISDICTION AND GENERAL PoWEKS. 39 
 
 wife, and she, and not he, is entitled to recover therefor. Stevens v. 
 Cunningham, 181 N. Y. 454, rev'g 75 App. Div. 125. 
 
 Evidence as to election to labor on her own account. — The fact 
 that a married woman enters upon an independent employment which 
 she pursues openly for six years, without protest or interference from 
 her husband, shows a sufficient election on her part to labor on her 
 own account and thereby entitled herself to her earnings. (Ibid.) 
 
 Presumption as to earnings. — Section 30 of chapter 289 of the Laws 
 of 1902, an act to amend the Domestic Relations Law in relation to a 
 married woman's right of action for wages, etc., was not oassed to 
 overcome any common-law presumption that, notwithstanding the pas- 
 sage of the Married Woman's Acts, the services of the wife belonged 
 to her husband, but to make clear the principle which is to be found in 
 many of the decisions construing these statutes in the interest of 
 married women and providing a presumption in their favor. (Ibid.) 
 
 Infancy as defense in action for conversion. — Infancy is a defense to 
 an action for conversion because of failure to return a watch as 
 promised. An infant cannot be held on a mere contractual promise 
 by merely changing the form of action to one ex delicto, in a case where 
 no actual appropriation of the property is shown. Stone V. Rabinoioitz, 
 45 Misc. Rep. 405. 
 
 Master and servant; what sickness of the servant will justify the 
 master in dismissing him. — An employee engaged to render personal 
 services for a specified period, who is, by reason of sickness, disabled 
 from completing his period of service, may recover the value of such 
 services as he has actually rendered. Sickness under such circum- 
 stances is to be deemed the act of God. While, under such a contract, 
 the employer is not bound to wait an unreasonable length of time for 
 the restoration of the servant's health, the illness which will justify 
 him in dismissing the servant must be something more than a mere 
 temporary malady. It must be a serious sickness, lasting, or likely to 
 last, so long as to interfere substantially with the interests of the 
 employer. Thus, where the period of the contract is three months, the 
 illness of the servant for a day and a half does not entitle the employer 
 to dismiss the servant, and, if he does so, he renders himself liable to 
 an action for a breach of the contract. Gaynor v. Jonas, 104 App. 
 Div. 35. 
 
 Partner; power of, to borrow money and execute chattel mortgage; 
 fraud cannot be shown under a general denial. — Copartners are liable 
 for money borrowed by one of them on the firm credit, whether applied 
 to the firm business or misapplied, and to secure such loan one partner, 
 without consulting his copartner, can execute a valid chattel mortgage 
 in the firm name. Such transactions are within the apparent scope 
 cf copartnership business. Semble, a partner defending the foreclosure 
 of such chattel mortgage cannot, under a general denial, maintain that
 
 40 Jurisdiction and General Powers. § 1. 
 
 the mortgage was executed pursuant to a scheme to defraud him. 
 Weight of evidence considered. Cohen v. Miller, 46 Misc. Rep. 10G. 
 
 "Personal injuries" to a passenger on a street car; the action is for 
 breach of contract, not for an assault. — The pleadings in an action 
 brought in this court against a street railroad company were oral. 
 The complaint was " for personal injuries."' and, as amplified by the 
 bill of particulars, alleged that the plaintiff on a certain day boarded 
 a car of the defendant and tendered his fare, and that the conductor 
 refused to accept such fare and, without cause or provocation, assaulted 
 the plaintiff and threw him off the car, and that by reason of such mis- 
 conduct the plaintiff was injured. Held, that the cause of action was 
 for breach of contract, and was not for an assault within the meaning 
 of section 1364 of the Greater New York charter. A bill of particulars 
 is but an amplification of the complaint and does not operate to change 
 the nature of the cause of action set forth in such complaint. Hines 
 v. Dry Dock, E. B. & B. R. R. Co., 75 App. Div. 391. 
 
 (Section 1364 of the Charter is now section 1 of the Municipal Court 
 Act (Law.? 1902, chap. 580), and the reference is to subdivision 1 of 
 each of these laws.) 
 
 Physician or surgeon in the treatment of a patient; for what he is 
 liable. — A physician and surgeon when treating a patient assumes two 
 obligations, the first, that he possesses the reasonable degree of learn- 
 ing and skill which is ordinarily possessed by physicians and surgeons 
 in the locality in which he practices and which is ordinarily regarded 
 by those conversant with the employment as necessary to qualify him 
 to engage in the business of practicing medicine and surgery ; the 
 second, that he will use reasonable care and diligence in the exercise 
 of his skill and the application of his learning to accomplish the pur- 
 pose for which he was employed, and that lie will use his best judgment 
 ir: exercising such skill and applying his knowledge. He is liable for 
 an injury to his patient resulting from want of the requisite knowledge 
 and skill or from his omission to exercise care or his failure to use his 
 best judgment. He is not liable for a mere error of judgment provided 
 he does what he thinks is best after a careful examination. He does 
 not guarantee a good result. MacKenzie v. Caman, 103 App. Div. 246. 
 
 Quasi-contract; voluntary payment made under a mistake of law not 
 recoverable; duress. — The jurisdiction conferred upon this court by 
 its charter (Laws 1901, chap. 466, § 1364, subd. 1) and thereby con- 
 fined to an action for breach of contract, express or " implied," does 
 not give that court jurisdiction of an action to recover of the city a 
 fine imposed upon the plaintiff by a city magistrate who had no juris- 
 diction to impose the fine. If such an action is maintainable it must 
 b J upon the theory of a ^wast-contraet and of such an action that court 
 has no jurisdiction, and takes none under the word " implied." A vol- 
 untary payment of a fine made under a mistake of law cannot be 
 recovered. General allegations of duress are insufficient where there
 
 § 1. Jurisdiction and General Powers. 41 
 
 is no allegation or proof of facts constituting duress. Harrington v. 
 City of New York, 40 Misc. Rep. 165. 
 
 {Section 1304 of Laws 1901, chapter 466, is now contained in the 
 Municipal Court Act (Laics 1902, chap. 580, § 1, subd. 1).) 
 
 Salesman's contract for commissions and weekly drawings construed. — 
 Plaintiff under his contract with the defendant was entitled to certain 
 commissions and also " to draw the sum of fifty dollars per week for 
 his personal use, same to be charged to his commission account." In 
 an action to recover two weekly drawings, held, that since no time 
 was fixed for the payment of commissions they were to be adjusted at 
 the end of employment, and hence the right to weekly drawings accrued 
 whether commissions had been earned or not. Schwerin v. Rosen, 45 
 Misc. Rep. 409. 
 
 Same; services with an association organized for political and not for 
 business purposes, when enforceable. — Though an association, organized 
 for political and not for business purposes, is not liable for debts con- 
 tracted by its agents, except when express power to pledge its credit 
 is given, or the fund for payment is already provided; yet when, at the 
 time of plaintiff's employment, the fund is provided but is subsequently 
 expended by the association in increasing the value of its plant, plain- 
 tiff can recover because the fund, applicable to plaintiff's payment, has 
 been added to the property of the association, and the association by 
 accepting such plant accepts the burdens incident to the benefit con- 
 ferred by the agent's acts, and thus ratifies the employment. Eosman 
 v. Kinneally, 45 Misc. Rep. 411. 
 
 Same; of a traveling salesman at a weekly salary; the employer is 
 entitled to his exclusive services; the salesman is entitled to nothing 
 during the week in which a breach occurs or thereafter. — Under a writ- 
 ten contract, by the terms of which one of the parties thereto employs 
 the other party as a traveling salesman at a salary of $25 per Week 
 and traveling expenses, for a term of six months, the employer is 
 entitled to the exclusive services of the employee during the continu- 
 ance of the contract, even in the absence of any provision to that effect 
 in the written contract or of a concurrent or collateral agreement in 
 respect thereto. 
 
 In the event of a breach of the contract by the employee he cannot 
 recover any salary for the week during which the breach occurred, nor, 
 in the absence of estoppel or waiver, for the rest of the contract period. 
 Seaburn v. Zachmann, 99 App. Div. 218. 
 
 Statute of Frauds; contract for manufacture of goods; ratification.— 
 Where a stranger purporting to act for the defendant made an oral 
 contract with the plaintiff for the manufacture and delivery of castings 
 to the defendant, and the castings were delivered under the contract to 
 the defendant and charged to him by the plaintiff, the fact that the 
 defendant retained them in his possession (without using them, how- 
 ever) and failed for more than two months to repudiate the contract
 
 42 Jurisdiction and General Powers. § 1. 
 
 and to offer to surrender up the castings, although the plaintiff had 
 rendered statements charging him with the contract price and had on 
 several occasions demanded payment of the defendant and his agents, 
 is not sufficient to constitute a ratification of the unauthorized con- 
 tract. A contract for the molding of castings from patterns is not 
 one of sale, but on< for the manufacture of goods not in esse; it is 
 not, therefore, within the Statute of Frauds. McKenna v. Springer, 
 N. Y. Law Journal, March 5, 1904, Seamax, J., sitting in the twelfth 
 district, Borough of Manhattan, February, 1904. 
 
 Notes to section i, subdivision 5. 
 
 Foreign corporation, having an office in said city, as surety upon a 
 city marshal's bond. — The jurisdiction of this court to render judgment 
 against a foreign corporation, having an office in said city and being 
 surety on the bond of a city marshal, is to be determined by the 
 Municipal Court Act (Laws 1902, chap. 580, § 1, subds. 5 and 18), and 
 under these subdivisions, when read together, there is no jurisdiction 
 where the plaintiff claims more than $500. Section 296 of said act 
 authorizing a justice of the Supreme Court to order prosecution in 
 the said Municipal Court of a marshal's bond — without limitation as 
 to its amount — cannot aid the plaintiff and is to be condemned as an 
 attempt to give such a justice power to confer upon the said Municipal 
 Court jurisdiction in such a case beyond $500. Frieland v. Union 
 Surety Co., 43 Misc. Rep. 38. 
 
 Notes to section 1, subdivision 6. 
 
 Person indebted to judgment debtor. — An action brought under sec- 
 tion 1391 of the Code of Civil Procedure, as amended by chapter 461 
 of the Laws of 1903, against a person indebted to a judgment debtor, 
 because of the failure of such person to satisfy an execution issued 
 under the said section to the extent of his obligation to the judgment 
 debtor is to be regarded as an action upon the judgment, and hence, if 
 the judgment was recovered in the Supreme Court, the Municipal Court 
 01 the city of New York has not jurisdiction thereof. Such an action 
 is not one to foreclose a lien upon a chattel, within the meaning of 
 subdivision 10 of section 1 of the Municipal Court Act. A lien defined. 
 Weissel v. Old Dominion S. S. Co., 99 App. Div. 568. 
 
 Notes to section 1, subdivision 7. 
 
 Action will lie for penalty although there has been no conviction 
 for misdemeanor. — Such conviction is not a condition precedent to the 
 maintenance of an action for the recovery of a penalty. The result of 
 a criminal action would be no adjudication in the civil action under 
 section 1481 of the charter. The City of New York v. Williams, X. Y. 
 Law Journal, July 13, 1905, Joseph, J., seventh district, Manhattan.
 
 § 1. JURISDICTION AND GENERAL POWEES. 43 
 
 Cabs standing in front of hotels (not at hack stands) in the city of 
 New York must pay a license fee of $25 in addition to the $3 license 
 fee. — Livery-stable-keepers, doing business in the city of New York, 
 who make an agreement with the proprietor of a hotel in that city to 
 supply carriages or cabs to that hotel and who, with the written con- 
 sent of such proprietor, but without the consent of the city, keep a 
 number of cabs standing in front of the hotel awaiting passengers, 
 must, in addition to the license fee of $3 imposed on special hacks by 
 sections 456 and 457 of the Revised Ordinances of the city of New York, 
 pay for each of such cabs the additional fee of $25, imposed pursuant 
 to section 12 and 13 of the ordinance approved May 22, 1899, upon 
 hacks using, with the written consent of the owner or lessee of the 
 abutting premises, a public street as a private hackstand. The enact- 
 ment of the ordinance of May 22, 1899, was within the power of the 
 municipal legislature. City of New York v. Reesing, 77 App. Div. 417. 
 
 Fire department; failure to provide such means of communication 
 as the fire commissioner shall direct. — Section 762 of the charter of 
 the city of New York provides that " the owners and proprietors of 
 * * * hotels * * * shall provide such means of communicating 
 alarms of fire * * * as the fire commissioner * * * may di- 
 rect." No specific means of communication was directed by the order 
 of the fire commissioner given to the defendant. In an action for the 
 penalty, held, that the fire commissioner must direct the means of com- 
 munication; that no penalty can be recovered when the means of com- 
 munication is left wholly to the conjecture of the defendant; that a 
 failure to comply with an order, which is not within the reasonable 
 meaning of the statute, is not grounds for action for the penalty. 
 Hayes v. Brennan, 45 Misc. Rep. 413. 
 
 Milk cans, unlawful detention of; Domestic Commerce Law, section 
 29, as amended in 1902. — In an action to recover a penalty under 
 section 29 of the Domestic Commerce Law (L. 1896, chap. 376, as 
 amended in 1902), which provides that "No person shall, without the 
 consent of the owner or shipper, or his agent, use, sell, dispose of, buy 
 or traffic in any can irrespective of its condition, or the use to which 
 it may have been applied, belonging to any dealer in or shipper of 
 milk or cream in this state," the condition of the can is material and 
 where upon plaintiff's proof before resting that he found the can in 
 question with its top cut off and full of ashes beside the house of the 
 defendant, who said that it was her ash can and that the ashman 
 had given it to her, the court dismissed the complaint, the judgment 
 entered in favor of defendant will be reversed and a new trial 
 granted in order that the facts in regard to the condition of the can 
 may be more fully presented, ftchmidt v. Justus, 46 Misc. Rep. 459. 
 
 Quasi-contract. — The jurisdiction conferred upon this court by the 
 charter (Laws 1901, chap. 466, § 1364, subd. 1) and thereby confined 
 to an action for breach of contract, express or " implied," does not give
 
 44 J UEISDICTI0J5T AND GENERAL POWERS. § 1. 
 
 the court jurisdiction of an action to recover of the city a fine imposed 
 upon the plaintiff by a city magistrate who had no jurisdiction to 
 impose the fine. If such an action is maintainable it must be upon 
 the theory of a guasrt-contract, and of such an action the court has no 
 jurisdiction and takes none under the word "implied." Harrington v. 
 City of New York, 40 Misc. Rep. 165. 
 
 Railroad transfers. — In an action brought against a street railroad 
 company for refusing to issue transfers as required by law, the plain- 
 tiff may recover the statutory penalty for each refusal. Lux v. New 
 York City Ry. Co., 45 Misc. Rep. 223. 
 
 Stock-books. — For three separate refusals to exhibit stock-books, as 
 required by section 29 of the Corporation Stock Law, the defendants 
 are liable but for one penalty where it is admitted that the plaintiffs' 
 several demands for inspection were for the purpose of getting certain 
 definite information once for all. Walcott V. Little, 46 Misc. Rep. 96. 
 See Griffin v. Interurban St. R. R. Co., 179 N. Y. 438. 
 
 Tenement-house repairs. — An order of the tenement-house commis- 
 sioner, requiring the landlord of a tenement-house to make repairs 
 thereon, is not a lien or incumbrance within the meaning of a subse- 
 quent conveyance of the property by a short form full covenant war- 
 ranty deed, free and clear of all incumbrances. Gotland v. Bove, per 
 Fallon, J., N. Y. Law Journal, February 10, 1904. 
 
 Voluntary payment of a fine under a mistake of law cannot be recov- 
 ered. Harrington v. City of New York, 40 Misc. Rep. 165. 
 
 Notes to section i, subdivision 9. 
 
 Jurisdiction in replevin, how determined. — The jurisdiction of this 
 court in replevin is limited and determined solely by the value of the 
 chattels ($500) and the fact that the damages claimed for their de- 
 tention exceed that sum does not affect jurisdiction. Syms v. American 
 Automobile Storage Co., 43 Misc. Rep. 395. 
 
 Lost property. — Finder of articles lost in large retail store is en- 
 titled to possession thereof as against the proprietor of the store. The 
 finder of the property is a voluntary bailee for the owner, if ever he 
 should come forward to reclaim it. An action of replevin will lie 
 in favor of the finder against any person who detains possession from 
 him. White v. Daniels, N. Y. Law Journal, January 9, 1904, 
 Joseph, J., sitting in the seventh district, Borough of Manhattan. 
 
 Notes to section 1, subdivision 10. 
 
 See also notes to section 137. 
 
 Artisans' lien; dependent on continued possession; repairs to auto- 
 mobile; warehouse lien. — The right of lien under section 70 of the 
 Lien Law (Laws 1897, chap. 418) for reasonable charges for work done 
 and materials furnished in making repairs to personal property at the
 
 § 1. Jurisdiction and General Powers. 45 
 
 request or with the consent of the owner, is dependent upon the con- 
 tinued possession of the property by the one claiming the lien. 
 
 In the absence of statutory provision, a garage-keeper has no artisans' 
 lien for the amount due for repairs to and supplies for an automobile 
 which the owner, during the time it was kept at the garage, had and 
 exercised the right to use at his pleasure, nor has the keeper a ware- 
 house lien on the automobile, it not having been " stored " within the 
 meaning of section 73 of the Lien Law. Smith v. O'Brien, 46 Misc. 
 Rep. 325. 
 
 Boarding-house keeper. — The lien of a boarding-house keeper (Laws 
 1897, chap. 418, § 71, as amended Laws 1899, chap. 380) gives him no 
 lien on property brought upon the premises by a boarder, nor any right 
 to detain it for board, where the legal right to both the title and pos- 
 session of the property were then in another, and this because the true 
 owner cannot, under the Constitution, be divested of his property ex- 
 cept by due process of law. Burnett v. Walker, 39 Misc. Rep. 323. 
 
 Chattel mortgage; when an action is not upon; cost price when evi- 
 dence of value. — This court has jurisdiction of an action brought by 
 a chattel mortgagor against the mortgagee for selling the mortgaged 
 chattels by mistake after receiving them back from her after default 
 and agreeing to keep them for her until she was financially able to take 
 them again, as such an action arises on the bailment to keep the chattels, 
 and not on the chattel mortgage, and therefore is not within the" pro- 
 hibition of section 139 of the Municipal Court Act (Laws 1902, chap. 
 580.) Where the identity of goods is lost, their agreed cost price is 
 evidence of their value. Goodman v. Baumann, 43 Misc. Rep. 83. 
 
 Liens of hotel, apartment hotel, inn, boarding and lodging house 
 keepers. — A keeper of a hotel, apartment hotel, inn, boarding house or 
 lodging house, except an emigrant lodging house, has a lien upon, while 
 in possession, and may detain the baggage and other property brought 
 upon their premises by a guest, boarder or lodger, for the proper 
 charges due from him, on account of his accommodation, board and 
 lodging, and such extras as are furnished at his request. If the keeper 
 of such hotel, apartment hotel, inn, boarding or lodging house knew 
 that the property brought upon his premises was not, when brought, 
 legally in possession of such guest, boarder or lodger, or had notice that 
 such property was not then the property of such guest, boarder or 
 lodger, a lien thereon does not exist. An apartment hotel within the 
 meaning of this section includes a hotel wherein apartments are rented 
 for fixed periods of time, either furnished or unfurnished, to the occu- 
 pants of which the keeper of such hotel supplies food, if required. A 
 guest of an apartment hotel, within the meaning of this section, in- 
 cludes each and every person who is a member of the family of the 
 tenant of an apartment therein, and for whose support such tenant is 
 legally liable. (Laics 1905, chap. 206, amending section 71 of chap. 418 
 of the Laws of 1897, entitled "An act in relation to liens, constituting
 
 40 Jurisdiction and General Powers. § 1. 
 
 chap. 49 of the general laics," as amended by chap. 380 of the Laics 
 of 1899.) 
 
 Notice of lien, contents of. — The notice of lien shall state: 
 
 1. The name and residence of the lienor; and if the lienor is a part- 
 nership or a corporation, the business address of such firm, or corpora- 
 tion, the names of partners and principal place of business, and if a 
 foreign corporation, its principal place of business within the state. 
 
 § 2. This act shall take effect September first nineteen hundred and 
 five. (Laws 1905, chap. 96, amending subd. 1 of section 9 of chap. 
 418 of the Laws of 1897, entitled "An act in relation to liens, consti- 
 tuting chap. 49 of the general laws.") . 
 
 Person indebted to judgment debtor. — An action brought under sec- 
 tion 1391 of the Code of Civil Procedure, as amended by Laws 1903, 
 chapter 40 1, against a person indebted to a judgment debtor, because 
 of the failure of such person to satisfy an execution issued under the 
 said section to the extent of his obligation to the judgment debtor, is 
 to be regarded as an action upon the judgment, and hence, if the judg- 
 ment was recovered in the Supreme Court, the Municipal Court of the 
 city of New York has no jurisdiction thereof. Such an action is not 
 one to foreclose a lien upon a chattel within the meaning of subdivision 
 10 of section 1 of the Municipal Court Act. A lien defined. Weissel v. 
 Old Dominion SS. Co., 99 App. Div. 568. 
 
 Public cartman in New York city; when he is not entitled to a lien 
 upon goods transported. — A public cartman in the city of New York, 
 who is employed to move a quantity of household goods, is not, in the 
 event of the refusal of his employer to pay his charge for transporta- 
 tion, entitled to a lien upon the goods under the ordinances of the 
 city of New York relating to the liens of public cartmen, when it 
 appears that the goods were injured in transit to an amount in excess 
 of the charge for cartage, and also that the cartman did not convey the 
 property to either of the places specified in the ordinance or send the 
 notice required by the terms thereof. Browning v. Belford, 83 App. 
 Div. 144. 
 
 Stallions; liens for services of, amended by Laws 1904, chapter 261. 
 
 Warehouse lien. — In the absence of statutory provision, a garage- 
 keeper has no artisan's lien for the amount due for repairs to and sup- 
 plies for an automobile which the owner, during the time it was kept 
 at the garage, had and exercised the right to use at his pleasure, nor 
 has the keeper a warehouse lien on the automobile, it not having been 
 " stored " within the meaning of section 73 of the Lien Law. Smith v. 
 O'Brien, 46 Misc. Rep. 325. 
 
 Notes to section i, subdivision 12. 
 
 Setting aside final order. — It seems, that under subdivision 19 of 
 section 1 of the Municipal Court Act (Laws 1902, chap. 580) a justice
 
 § 1. Jurisdiction and General Powers. 47 
 
 has power to set aside a final order in summary proceedings and to 
 grant a new trial. Stein v. Kesselgrab, 45 Misc. Rep. 652. 
 
 Squatter; summary removal of; question of title; removal of pro- 
 ceeding as in an action not applicable; amendment of technical errors 
 in pleading. — The fact that the question of title is raised collaterally 
 in a proceeding instituted in the Municipal Court of the city of New 
 York under subdivision 4 of section 2232 of the Code of Civil Procedure 
 for the summary removal of an alleged squatter from land claimed 
 to be owned by the petitioner does not serve to oust the Municipal 
 Court of jurisdiction. The real issue involved in the proceeding is as 
 to the right to the possession of the premises, and the provisions of the 
 Code of Civil Procedure, requiring the removal of an action brought in 
 Justice's or Municipal Court, where the determination of title to real 
 estate is involved, have no application to such a proceeding. Where 
 the denials contained in the answers interposed in such a proceeding 
 are objectionable in form because of the violation of a technical rule 
 of pleading, but are not misleading, the party interposing such an 
 answer should be permitted to amend the same. Van Deventer v. 
 Foster, 87 App. Div. 62. 
 
 Note. — The law for removal of an action was repealed by Laws 1904, 
 chap. 598. 
 
 Verification of a petition by a domestic corporation; jurisdiction as- 
 sailable for the first time on appeal; defect in an allegation of the 
 service of a demand for rent or possession. — An agent of a domestic 
 corporation may, and an officer thereof need not, verify its petition to 
 initiate summary proceedings to dispossess its tenant. (Code Civ. 
 Proc, §§ 525, subd. 1; 2235.) A question which affects the jurisdiction 
 of this court may be raised for the first time on an appeal. This court 
 dees not acquire jurisdiction of such proceedings where the petition 
 therein, although stating that the tenant was served with a three days' 
 notice to pay rent or yield possession, " as prescribed in chapter 17, 
 title 2, section 2240 of the Code of Civil Procedure, for the service of 
 a precept," fails to state by which of the three methods, prescribed in 
 said section, service was made. Matter of Stuyvesant Real Estate Co., 
 40 Misc. Rep. 205. 
 
 Notes to section i, subdivision 13. 
 
 Horse, sale of. — When action is for fraud and deceit in the sale of a 
 horse, recovery cannot be had for breach of warranty. Postal v. Cohn, 
 87 App. Div. 27. See Bunke v. N. Y. Telephone Co., 46 Misc. Rep. 
 97, 98. 
 
 Merchandise in bulk under Laws 1902, chapter 528; fraud in the sale 
 of; attachment; judgment by default; summons not personally served.— 
 A judgment cannot be rendered by default pursuant to section 91 of 
 the New York Municipal Court Act (Laws 1902, chap. 580) or sec-
 
 48 Jurisdiction and General Powers. § 1. 
 
 tion 2918 of the Code of Civil Procedure, in an action where the de- 
 fendant has not appeared or been personally served with the summons, 
 but in which, however, his property has been attached, unless it ap- 
 pears that the affidavits upon which the warrant of attachment was 
 issued were sufficient to authorize it. On an application for a warrant 
 of attachment on the ground that the defendant has disposed of his 
 property with intent to defraud his creditors, the burden of proving 
 the fraudulent intent is upon the party applying for the writ, and 
 circumstances which create a strong suspicion of fraud, but yet fall 
 short of prima facie proof thereof, are not sufficient. An averment in 
 the moving affidavits that, upon a sale by the defendant of his entire 
 stock of merchandise in bulk, the defendant and the purchaser did not 
 do the things required by chapter 528 of the Laws of 1902, which pro- 
 vides that the sale of an entire stock of merchandise in bulk is fraudu- 
 lent and void against the creditor of the seller, unless, at least five days 
 before the sale, the seller and the purchaser do certain things, is in- 
 sufficient to establish the violation of the statute in question, where it 
 is evident that the averment is not based upon personal knowledge, and 
 the situation of the parties is not such as to create a presumption of 
 knowledge and no sources of information are disclosed. Semble, that 
 the fraud, which, by the Code of Civil Procedure, is made the ground 
 for an attachment, is an actual and intentional or moral fraud, and 
 not one which is declared to be such by statute because of the omission 
 of certain specified formalities. Mohlman Co. v. Landwehr, 87 App. 
 Div. 83. 
 
 Sale of entire retail stock to one person; Laws 1902, chapter 528, 
 construed. — The grammatical construction of the act is open to criti- 
 cism whether the legislative intent was to permit or prohibit the sale 
 of an entire stock of merchandise in bulk is an open question. The 
 intent was if a man so sold his stock in bulk the provisions of the act 
 relative to the making of the inventory and the notice by the pur- 
 chaser should be complied with, and there must be proof of such 
 compliance before the plaintiff can recover on an assigned claim against 
 the defendant. This is an action based upon allegations of fraud which 
 are never presumed to be true, but must always be proved to be so. 
 The plaintiff relies upon the statute and must bring himself directly 
 within it. 
 
 The validity of the act criticized, and an order of arrest refused. 
 Friedland v. Wexler, N. Y. Law Journal, September 14, 1903, Bennet, 
 J., sitting in the seventh district, borough of Manhattan, in August, 
 1903. See also Veil v. Collins, 39 Misc. Rep. 40. 
 
 Notes to section 1, subdivision 14. 
 
 Assault by street car conductor; not within scope of employment 
 when parties have left car; this court without jurisdiction in such action. 
 — The defendant's conductor refused to return plaintiff's change after
 
 § 1. JURISDICTION AND GENERAL POWERS. 49 
 
 payment of fare. She left the car before reaching her destination and 
 awaited on the defendant's premises the return trip of the conductor. 
 After renewed demands the conductor paid plaintiff and thereafter 
 struck her. Held, to warrant a recovery against the defendant railroad 
 company the relation of carrier and passenger must exist, and this 
 relation was ended when the plaintiff voluntarily left the car. There is 
 a distinction between temporarily alighting for refreshments from the 
 trains of a railroad company where the right to continue the journey 
 exists and alighting from the car of a street railway where a new 
 fare must be paid to continue the journey. Of this latter requirement 
 the court will take judicial notice. That the conductor, having ended 
 his trip and left the car at the time of the assault, was not engaged in 
 the performance of any duty the defendant owed a passenger, nor was 
 he acting within the scope of his authority. This court has no juris- 
 diction of such action. Reilly v. New York City Raihoay Co., 46 Misc. 
 Rep. 72. See also nines v. Dry Dock, etc., R. R. Co., 75 App. Div. 391. 
 
 Carrier of passengers; injury to the person through negligence of; 
 when verdict for plaintiff is properly set aside though no evidence is 
 introduced for defendant. — In an action for damages for injury to 
 plaintiff by reason of negligence in starting a car, which plaintiff was 
 about to board, no evidence was introduced on behalf of defendant. 
 The plaintiff testified that the accident was on one side of the street, 
 and her friend, and only witness, testified that it was on the other 
 side; there was no proof that a signal was given by any one for the 
 car to stop. The plaintiff's credibility was affected by the fact that 
 she testified both that she was in bed for two weeks following the 
 accident and also that she verified the complaint at her lawyer's office 
 nine days thereafter. Held, no abuse of discretion in trial justice in 
 setting aside verdict for plaintiff. Same holding in husband's action 
 for loss of services. Surkin v. Interborough Street R. Co., 45 Misc. 
 Rep. 407. 
 
 Collision; city ordinance giving right of way to vehicles moving in 
 certain directions not to be taken from consideration of jury; no re- 
 versal if error is in favor of appellant. — As an ordinance of the city 
 of New York gives right of way to vehicles moving north and south 
 over those moving east, it is error to charge that vehicles have equal 
 rights;' or when such ordinance is put in evidence to take it from the 
 consideration of the jury. But if the charge be more fair to plaintiff 
 than he is entitled to it is not ground for reversal of judgment for 
 defendant. Kroder v. Interurban Street R. Co., 46 Misc. Rep. 118. 
 
 Dog; damages for bite of; scienter must be shown. — Scienter must be 
 shown in an action to recover damages for bite of dog. Classical and 
 modern precedent stated. When evidence insufficient to establish 
 scienter. Bogodonow v. N. Y. Lumber & Storage Co., 46 Misc. Eep. 120. 
 
 4
 
 50 Jurisdiction and General Powers. § 1. 
 
 False imprisonment; a complaint alleging, dismissed, although it con- 
 tains other allegations constituting a cause of action within the court's 
 jurisdiction. — The complaint in an action, brought in this court, read 
 as follows : " The defendants are indebted to plaintiff in the sum of 
 Five hundred dollars ($500.00), in that they co-operated, inveigled and 
 kidnapped plaintiff from Brooklyn and carried him to Yucatan, Mexico, 
 against his will, to his loss, 
 " 1st. Loss of time from March 12, 1903, to April 4, 1903, at 
 
 $2.00 per day 22 days $44 00 
 
 " 2nd. To expense while away, 75c per day 22 days 16 50 
 
 " 3rd. To passage from Yucatan to Brooklyn 25 50 
 
 $86 00 
 "To detention, imprisonment, loss of peace of mind 414 00" 
 
 The Municipal Court of the city of New York is expressly prohibited 
 from entertaining jurisdiction of an action to recover damages for 
 false imprisonment (Laws 1902, chap. 580, § 1, subd. 14). Held, that 
 it was obvious from the language of the complaint that false imprison- 
 ment was one of the wrongs for which the plaintiff sought to recover 
 damages; that, consequently, the court could not afford the plaintiff 
 any redress, notwithstanding the fact that the complaint contained 
 other allegations, which, if they had stood alone, might have consti- 
 tuted a cause of action of which the court had jurisdiction. Bellezzire 
 v. Camardella, 95 App. Div. 176, 177. 
 
 Notes to section i, subdivision 15. 
 
 Decision of another justice. — One judge cannot, upon mere motion, set 
 aside the decision of another judge, upon allegations that the latter 
 had erred as to any of the questions submitted to his determination. 
 People v. National Trust Co., 31 Hun, 26. 
 
 Order not appealable. — An older of a justice of this court denying a 
 motion to vacate an order of arrest is not appealable, as such an order 
 is not enumerated in the Municipal Court Act (Laws 1902, chap. 580, 
 §§ 253, 254, 255, 256, 257.) The scope of section 20 of said act con- 
 sidered. Leavitt v. Katzoff, 43 Misc. Rep. 26. See also Hyman v. 
 Legal, 44 Misc. Rep. 226; Manelly v. Mayers, 43 Misc. Rep. 380, and 
 Smith v. Ely, 45 Misc. Rep. 458. 
 
 "Personal injuries" to a passenger on a street car; action is for 
 breach of contract, not for an assault. — The pleadings in an action 
 brought in this court against a street railroad company were oral. 
 The complaint was " for personal injuries," and, as amplified by the 
 bill of particulars, alleged that the plaintiff on a certain day boarded 
 a car of the defendant and tendered his fare, and that the conductor 
 refused to accept such fare and, without cause or provocation, as-
 
 § 1. JURISDICTION AND GENERAL Pc-WEES. 51 
 
 saulted the plaintiff and threw him off the car, and that by reason 
 of such misconduct the plaintiff was injured. Held, that the cause of 
 action was for breach of contract, and was not for an assault within 
 the meaning of section 1364 of the Greater New York charter. A bill 
 of particulars is but on amplification of the complaint, and does not 
 operate to change the nature of the cause of action set forth in such 
 complaint. Bines v. Dry Dock, E. B. & B. R. R. Co., 75 App. Div. 391. 
 See also Reilly v. 2V. Y. City Railway Co., 46 Misc. Rep. 72. 
 
 (Section 1364 of the charter is now section 1 of the Municipal Court 
 Act (Laics 1902, chap. 580), and the reference is to subdivision 1 of 
 this law.) 
 
 Notes to section i, subdivision 18. 
 
 Foreign corporation, having an office in said city, as surety upon a 
 city marshal's bond. — The jurisdiction of this court to render judgment 
 against a foreign corporation, having an office in said city and being 
 surety on the bond of a city marshal, is to be determined by the 
 Municipal Court Act (Laws 1902, chap. 580, § 1, subds. 5 and 18), and 
 under these subdivisions, when read together, there is no jurisdiction 
 where the plaintiff claims more than $500. 
 
 Section 296 of said act, authorizing a justice of the Supreme Court 
 to order prosecution in the said Municipal Court of a marshal's bond — 
 without limitation as to its amount — cannot aid the plaintiff, and is 
 to be condemned as an attempt to give such a justice power to confer 
 upon the said Municipal Court jurisdiction in such a case beyond $500. 
 Frieland v. Union Surety Co., 43 Misc. Rep. 38. 
 
 Nonresident plaintiff against a foreign corporation having a place 
 of business in the city of New York. — Jurisdiction of an action brought 
 in this court by a nonresident plaintiff against a foreign corporation 
 having a place in said city for the regular transaction of its business 
 is controlled by subdivision 3, and not by subdivision 2, of section 25 
 of the Municipal Court Act (Laws 1902, chap. 580), and under sub- 
 division 3 is properly brought in a district of said city in which the 
 defendant corporation has a place for the regular transaction of a 
 portion of its business, although it has a general office for the regular 
 transaction of its business in another district in said city. Goldzier v. 
 Central R. R. of A 7 . J., 43 Misc. Rep. 667. 
 
 Proof necessary to recover against a corporation for professional 
 services rendered to employees. — To charge a corporation with the value 
 of professional services rendered by a physician to its employees it 
 must be shown that such services were rendered for the benefit of the 
 corporation, or in satisfaction of a claim against it, or that the officers, 
 at whose instance the services were rendered, had authority to bind 
 the corporation in this respect. Harris v. Vienna Ice Cream Co., 46 
 Misc. Rep. 125.
 
 52 Jurisdiction and General Powers. § 1. 
 
 Notes to section i, subdivision 19. 
 
 See also section 255, " New Trial ; Fraud, or Newly-discovered Evi- 
 dence." 
 
 Decision of another justice. — One judge cannot, upon mere motion, set 
 aside the decision of another judge, upon allegations that the latter 
 had erred as to am of the questions submitted to his determination. 
 People v. National Trust Co., 31 Hun, 26. 
 
 Restoring case to the calendar. — Where certain cases in this court 
 ■were dismissed for nonappearance of either party within the time re- 
 quired, the justice had no authority to restore the causes to the calen- 
 dar and proceed to the trial thereof, except by defendant's express 
 consent, or by his voluntary appearance, without objection after service 
 of a notice of motion on him for reinstatement. Eichner v. Cohen, 91 
 N. Y. Supp. 357. 
 
 Setting aside final order in summary proceedings. — It seems, that 
 under subdivision 19 of section 1 of the Municipal Court Act (Laws 
 1902, chap. 580) a justice has power to set aside a final order in 
 summary proceedings and to grant a new trial. Stein v. Kesselgrub, 
 45 Misc. Rep. 652. 
 
 Stipulation. — While the court has power to relieve a party from a 
 stipulation, thoughtlessly or improvidently made by hi* attorney, it 
 is not justified in exercising this power in favor of a plaintiff after 
 the stipulation has been fully executed on the part of the defendant, 
 where it does not appear that the defendant was guilty of any fraud 
 or collusion, or that there has been any change in the circumstances 
 of the parties since the stipulation was made, or that anything has 
 transpired which was not foreseen and contemplated bv the parties. 
 Morris v. Press Publishing Co., 98 App. Div. 143. 
 
 Supplementary proceedings on a judgment recovered in a Municipal 
 Court, a transcript of which was docketed in the county clerk's office; 
 the Supreme Court* may set them aside, but cannot vacate the judg- 
 ment. — Where a transcript of a judgment recovered by default in this 
 court for the borough of Brooklyn is docketed in the office of the clerk 
 of the county of Kings, under section 1369 of the Greater New York 
 Charter (Laws 1897, chap. 378) and sections 3017 and 3220 of the 
 Code of Civil Procedure, and, after the return of an execution unsatis- 
 fied, supplementary proceedings are instituted thereunder, the Su- 
 preme Court is without jurisdiction .to vacate the judgment on the 
 ground that the judgment debtor had never been served with the sum- 
 mons and complaint. The Supreme Court has jurisdiction, however, 
 to stay or set aside the execution and the supplementary proceedings, 
 as these matters flowed out of the filing of the transcript and of the 
 docketing of the judgment. Johnson v. Manning, No. 1, 75 App. Div. 
 285. 
 
 Vacating void judgment not rendered in time. — Where a justice of 
 this court renders judgment in a case tried before him, which judgment
 
 § 2. No Jurisdiction in Certain Cases. 53 
 
 is void because it was not rendered within the fourteen days prescribed 
 by section 230 of the Municipal Court Act (Laws 1902, chap. 580), 
 the justice has power, under section 254 of that act, to make an order 
 vacating such judgment. Such order is appealable to the Appellate 
 Division under section 257 of the Municipal Court Act. Upon such an 
 appeal the court is bound by the contents of the return made by the 
 justice and cannot consider statements in the appellant's brief, not 
 supported by the return, tending to show that the judgment was 
 rendered within the statutory time. Stem V. Fleck, 102 App. Div. 272. 
 
 Vacating judgment because a material witness for the defeated party 
 did not appear on the trial. — A verdict or judgment cannot be vacated 
 upon this ground. Erichson v. Sidlo, 76 App. Div. 347. 
 
 Weight of evidence. — Under section 254, this court has power to set 
 aside a verdict and grant a new trial in an action, on the ground that 
 the verdict is against the weight of evidence. Newbound v. Inlerurban 
 Street R. R. Co., 42 Misc. Rep. 525. 
 
 Notes to section 2, " No Jurisdiction in Certain Cases." 
 
 Amount involved; remission of excess; Municipal Court Act, section 
 250. — Where both the summons and the complaint in an action com- 
 menced in this court demand judgment for $500 and interest, a denial 
 of a motion to dismiss the complaint upon the ground of want of 
 jurisdiction is reversible error. The provision of section 250 of the 
 Municipal Court Act permitting a party to remit the excess if the 
 sum found due " exceeds the sum for which the court is authorized to 
 enter judgment " applies only to cases where said court has acquired 
 jurisdiction in the first instance. Smith v. Dunn, 46 Misc. Rep. 475. 
 
 Assault by street car conductor; not within scope of employment 
 when parties have left car; this court without jurisdiction in such 
 action.— The defendant's conductor refused to return plaintiff's change 
 after payment of fare. She left the car before reaching her destina- 
 tion and awaited on the defendant's premises the return trip of the 
 conductor. After renewed demands the conductor paid plaintiff and 
 thereafter struck her. Held, to warrant a recovery against the de- 
 fendant railroad company the relation of carrier and passenger must 
 exist, and this relation was ended when the plaintiff voluntarily left 
 the car. There is a distinction between temporarily alighting for 
 refreshments from the trains of a railroad company where the right 
 to continue the journey exists and alighting from the car of a street 
 railway where a new fare must be paid to continue the journey. On 
 this latter requirement the court will take judicial notice. That the 
 conductor, having ended his trip and left the car at the time of the 
 assault, was not engaged in the performance of any duty the defend- 
 ant owed a passenger, nor was he acting within the scope of his author- 
 ity. This court has no jurisdiction of such action. Reilly v. New
 
 54 
 
 Xo Jurisdiction in Certain Cases. 
 
 § 2. 
 
 York City Railway Co., 46 Misc. Eep. 72. See also Hincs v. Dry Dock, 
 etc., R. R. Co., 75 App. Div. 391. 
 
 Decision of another justice. — One judge cannot, upon mere motion, 
 set aside the decision of another judge, upon allegations that the latter 
 had erred as to any of the questions submitted to his determination. 
 People v. National Trust Co., 31 Hun, 26. See exception to this rule. 
 Siremberg v. Di Salvo, 38 Misc. Rep. 139. 
 
 Equity jurisdiction; reformation of written instrument; action for 
 use and occupation; parol evidence to add to lease. — The reforma- 
 tion of a written instrument is not within the jurisdiction of this 
 court, and in an action to recover for use and occupation, a denial of 
 a motion to strike out a separate defense, setting up the existence of 
 a written lease of a basement and alleging that through inadvertence 
 the word " cellar " had been omitted therefrom contrary to the inten- 
 tion of both parties, is erroneous, and oral evidence that the lease was 
 intended to include the cellar is inadmissible. Kraus v. Smolen, 46 
 Misc. Rep. 463. 
 
 Fictitious name; when the judgment is fatally defective and an exe- 
 cution issued thereon is void. — The summons in an action brought in 
 the Municipal Court of the city of New York was entitled as follows: 
 
 " Mart Mabkowitz, Plaintiff, 
 
 against 
 
 Etta Lipsky and John Goldbebg, 
 
 Defendant. 
 
 Free summons. 
 
 First names being fictitious, un- 
 known to plaintiff." 
 
 The certificate of service recited that the marshal served the sum- 
 mons " on John Goldberg, one of the within named defendants * * * 
 and that I know the person to be one of the defendants therein named." 
 
 The docket, under the title " Markowitz against Lipsky et al.," re- 
 cited that the plaintiff appeared in person and that the complaint was 
 for goods sold and delivered; that the defendant appeared in person, 
 and that judgment was rendered for twenty dollars and twenty-five 
 cents damages and one dollar costs. The record did not show for or 
 against whom the judgment had been rendered, or that Goldberg was 
 a party to the action or appeared therein. An execution was then 
 issued directing the marshal to collect the amount due out of " the 
 separate property of the judgment debtor, John Goldberg, first name 
 fictitious, real name unknown to plaintiff." This execution was levied 
 upon property belonging to Nathan M. Goldberg, who was one of the 
 persons upon whom the summons in the action was served, and who 
 appeared in answer to the summons. 
 
 In an action brought by Nathan M. Goldberg against Markowitz and 
 the marshal who levied the execution to recover damages for the al- 
 leged conversion of the property levied upon, it was held that the
 
 § 2. No Jurisdiction in Certain Cases. 55 
 
 record of the judgment was fatally defective, and that the execution 
 issued thereon was void upon its face and constituted no protection 
 to the marshal or to any one acting under it; that the docket did 
 not show upon its face that any judgment had been rendered in favor 
 of the plaintiff against the defendant. That as Lipsky was the only 
 defendant named in the record, there was no presumption that the 
 proceeding was against any one but Lipsky. Goldberg v. Markoioitz, 
 94 App. Div. 237, 238. 
 
 Interpleader, when permitted. — The Municipal Court Act, section 187, 
 permits an interpleader only in an action on contract, or to recover 
 a chattel ; hence, where a defendant has been interpleaded in an action 
 for conversion and the original defendant is released by plaintiff, the 
 court is ousted as to jurisdiction as to both. Semble, an assignment 
 cannot be attacked on the ground of fraud under a general denial. 
 Midler v. Lese, 45 Misc. Rep. 638. 
 
 Jurisdiction is lost by the justice unless he files his decision within 
 fourteen days. Van Valis V. Charonca, 40 Misc. Rep. 226. See also 
 Penniman v. La Grange, 23 Misc. Rep. 226; Wallace v. Harris, 40 
 Misc. Rep. 216; Lambert v. Salomon, 28 App. Div. 562. 
 
 Person indebted to judgment debtor. — An action brought under sec- 
 tion 1391 of the Code of Civil Procedure, as amended by chapter 46 
 of the Laws of 1903, against a person indebted to a judgment debtor, 
 because of the failure of such person to satisfy an execution issued 
 under the said section to the extent of his obligation to the judgment 
 debtor, is to be regarded as an action upon the judgment, and hence, 
 if the judgment was recovered in the Supreme Court the Municipal 
 Court of the city of New York has not jurisdiction thereof. 
 
 Such an action is not one to foreclose a lien upon a chattel, within 
 the meaning of subdivision 10 of section 1 of the Municipal Court Act. 
 
 A lien denned. Weisel v. Old Dominion SS. Co., 99 App. Div. 568. 
 
 Quasi-contract; voluntary payment made under a mistake of law 
 not recoverable; duress. — The jurisdiction conferred upon this court by 
 the charter (Laws 1901, chap. 466, § 1364, subd. 1) and thereby confined 
 to an action for breach of contract, express or " implied," does not 
 give the court jurisdiction of an action to recover of the city a fine 
 imposed upon the plaintiff by a city magistrate who had no jurisdiction 
 to impose the fine. If such an action is maintainable it must be upon 
 the theory of a g-wast-contract and of such an action the court has no 
 jurisdiction and takes none under the word " implied." A voluntary 
 payment of a fine made under a mistake of law cannot be recovered. 
 General allegations of duress are insufficient where there is no allega- 
 tion or proof of facts constituting duress. Harrington v. City of ~New 
 York, 40 Misc. Rep. 165. 
 
 Squatter; summary removal of, from land; question of title; removal 
 of proceeding as in an action not applicable; amendment of technical 
 errors in pleading. — The fact that the question of title is raised col-
 
 56 No Jurisdiction in Certain Cases. § 2. 
 
 laterally in a proceeding instituted in the Municipal Court of the city 
 of New York under subdivision 4 of section 2232 of the Code of Civil 
 Procedure for the summary removal of an alleged squatter from land 
 claimed to be owned by the petitioner does not serve to oust the 
 Municipal Court of jurisdiction. The real issue involved in the pro- 
 ceeding is as to the right to the possession of the premises, and the 
 provisions of the Code of Civil Procedure requiring the removal of an 
 action brought in a Justice's or Municipal Court, where the determina- 
 tion of title to real estate is involved, have no application to such a 
 proceeding. Where the denials contained in the answers interposed in 
 such a proceeding are objectionable in form because of the violation 
 of a technical rule of pleading but are not misleading, the party inter- 
 posing such an answer should be permitted to amend the same. Van 
 Deventer v. Foster, 87 App. Div. 62. 
 
 Note. — The law for removal of an action was repealed by Laws 
 1904, chap. 598. 
 
 Surety upon a city marshal's bond by a foreign corporation. — The 
 jurisdiction of this court to render judgment against a foreign corpo- 
 ration, having an office in said city and being surety upon the bond 
 of a city marshal, is to be determined by the Municipal Court Act (Laws 
 1902, chap. 580, § 1, subds. 5, 18), and under these subdivisions, when 
 read together, there is no jurisdiction where the plaintiff claims more 
 than $500. Section 296 of said act, authorizing a justice of the Su- 
 preme Court to order prosecution in the Municipal Court of a mar- 
 shal's bond, without limitation as to its amount, cannot aid the plain- 
 tiff and is to be condemned as an attempt to give such justice power 
 to confer upon said court jurisdiction beyond $500. Frieland v. Union 
 Surety Co., 43 Misc. Rep. 38. 
 
 § 3. Removal. — (This section lias been repealed by Laws 
 1904, chapter 598, section 1, having the remarkable title, "An 
 Act to amend the Municipal Court Act of the City of New 
 York with reference to rules of court and appeals," and is as 
 follows : ) 
 
 Section 1. Section three of the municipal court act of the 
 city of New York is hereby repealed, but the repeal of such 
 section shall not affect the prosecution of any action hereto- 
 fore removed from said municipal court of the city of New 
 York pursuant to the provisions of such section, and all pro- 
 ceedings in such actions shall be continued as though said 
 section were* still in force and effect. 
 
 * So in original. It should be " was."
 
 § 12. Board to Make Rules. 57 
 
 Note to sections 4, 5, 6, 7, and 8, " Contempt of Court." 
 
 Court order. — A court order should have a caption reciting the time, 
 place, and term of court. A judge's order, however, is not vitiated 
 because it contains such a caption, as the caption may be treated as 
 surplusage. The body of an order may be examined for the purpose 
 of determining whether it was made by a court or a judge. Matter of 
 Munson, 95 App. Div. 23. 
 
 § 11. Board of justices — The justices of said court shall 
 constitute the board of justices of the municipal court and 
 discharge the functions thereof. They may elect a president 
 from their own number and at pleasure remove him and 
 elect a successor. All meetings of said board shall be public 
 and all proceedings shall be recorded in its books of minutes, 
 by its secretary and shall be preserved. Such board may 
 designate a clerk of said court for one of said districts to 
 act as secretary of said board, and from time to time sub- 
 stitute another and fix a compensation to be paid for such 
 service, not exceeding the sum of five hundred dollars per 
 annum. Such board may also designate an attendant of such 
 court to act as attendant of said board, and from time to time 
 substitute another, and fix a reasonable compensation to be 
 paid for such service. Such board shall establish public 
 rules relative to its meetings, which as far as possible shall 
 be held at regular times, to the keeping and preservation of 
 its minutes and to the public inspection of the same under the 
 care of the secretary at reasonable times. (As amended by 
 Laws 1904, chap. 735, passed May 14, 1904.) 
 
 § 12. Board to make rules. 
 
 Subdivision 6 added, which reads as follows: 
 
 6. As to a calendar in each district of actions reserved gen- 
 erally, to which actions may be transferred notwithstanding 
 the provisions of section* one hundred and ninety-three and 
 one hundred and ninety-four of this act. ( This is a new sub- 
 division added by Laws 1903, chap. 282, in effect April 27, 
 1903.) 
 
 * So in original. Should be " sections."
 
 58 Board to Make Rules. § 12. 
 
 7. As to the justices who shall hold sessions of said court 
 in each of the districts at times and places to be specified in 
 said rules, which sessions shall begin at nine o'clock in the 
 forenoon, and to provide for such a rotation of the justices 
 holding the same as that each justice after holding court in 
 his own district for one month shall sit in at least five of such 
 other districts, at least once for a period of one month at a 
 time previous to his return to the district for which he shall 
 have been elected or appointed, provided that the justices 
 elected or appointed for any borough shall hold court in such 
 borough, but if a vacancy exists, or the illness or other in- 
 ability of any justice assigned to hold court prevents his 
 attendance, any other justice of said court may hold the same. 
 Such rules respecting rotation and the designation of justices, 
 shall be made on or before the first Monday of December in 
 each year, and shall be published in the Xew York law 
 journal, and one newspaper published in each borough at 
 least once before the first day of January following and shall 
 go into effect on such latter day. (This is a subdivision 
 added by Laivs 1904, chap. 598.) 
 
 Notes to section 12. 
 
 Section 193 of this act, referred to, relates to "adjournments; trial 
 may be adjourned; when." And section 194 "adjournments longer than 
 eight days; undertaking." 
 
 Pursuant to section 12, and as amended by chapter 282, Laws 1903, 
 and by chapter 598, Laws 1904, the board of justices adopted the 
 following: 
 
 Rules of Practice. 
 
 I. Court shall be held in each district on Monday, Tues- 
 day, Wednesday, Thursday and Friday of each week, except 
 in those districts where the justice elected or appointed 
 therein shall otherwise direct. 
 
 II. Court shall be opened at 9 o'clock a. m. and close at 
 4 o'clock p. m. During months of July and August from 
 9 a. m. until 12 m.
 
 § 12. Board to Make Rules. 59 
 
 III. The order of business in each court shall be as follows : 
 
 1. Summary proceedings. 
 
 2. Adjourned causes. 
 
 3. Returned causes. 
 
 4. Inquests. 
 
 5. Motions. 
 
 6. Trials. 
 
 IV. To entitle a cause to a place on the calendar, the 
 summons must be returned with proof of service thereof to 
 the clerk's office, and the calendar fee paid the day before the 
 return day of the summons. 
 
 V. Where a plaintiff appears by attorney, the summons, 
 unless a complaint is filed therewith, shall be indorsed with 
 the name and address of the attorney for the plaintiff and a 
 brief statement of the cause of action. Such indorsement 
 shall be deemed an appearance within section 332 of the 
 Municipal Court Act. Other process, pleadings and writ- 
 ings shall also be appropriately indorsed. 
 
 VI. When a bill of particulars is ordered the same shall 
 be filed in the clerk's office within three days after such order 
 is made. 
 
 VII. When a jury is demanded, the jury fee shall be forth- 
 with paid to the clerk of the court by the attorney, or party 
 making such demand. The jury shall be publicly drawn by 
 the clerk from the panel under the supervision of the justice. 
 Each additional venire requires an additional jury fee, but 
 only the fee originally paid can be included as part of the 
 costs in the judgment under section 238 of the Municipal 
 Court Act. 
 
 VIII. If the original summons, or other process, or man- 
 date of the court is not returned to the office of the clerk the 
 court may indorse a dismissal of the action or proceeding 
 upon the copy of such summons, mandate or process, or grant 
 other appropriate relief, and award costs in proper cases, and 
 such copy, summons, mandate, or process with such indorse- 
 ment shall thereupon be filed with the clerk of the court, and 
 shall have the same effect as if the original had been so in-
 
 60 Board to Make Rules. § 12. 
 
 dorsed and filed, provided proof of service is made or written 
 notice of appearance by an attorney is filed. 
 
 IX. Upon an application for an order removing an action 
 to the City Court, County Court, or Supreme Court, as the 
 case may be, the sureties upon the undertaking must attend 
 mid justify as to their sufficiency on the day of the presenta- 
 tion of the undertaking unless such justification is waived or 
 adjourned by the court or by consent, or the undertaking is 
 given by a duly authorized surety company. 
 
 X. The clerk shall not place a cause upon the calendar for 
 trial on a day agreed upon in a stipulation unless such 
 stipulation is approved by the justice in the district in which 
 the action is pending. 
 
 XI. Causes set down for trial must be tried when reached 
 unless legal grounds exist for an adjournment. 
 
 XII. Only one adjournment shall be granted in actions in 
 which the amount claimed in the summons does not exceed 
 $50, unless the justice for good cause shown shall otherwise 
 direct. 
 
 XIII. Calendar or other fees paid to the clerk are in no 
 case to be returned. 
 
 XIV. Motions may be brought on for hearing on not less 
 than three days' notice unless otherwise provided by law. 
 
 XV. Ex parte applications may be made to any justice 
 without regard to the district in which the action or proceed- 
 ing is pending, or about to be commenced ; the affidavit shall 
 however state whether any previous application has been 
 made, and if made, to what justice, and what order or de- 
 cision was made thereon, and what new facts, if any, are 
 claimed to be shown. It shall also state the residences of the 
 parties. For failure to comply with this rule any order 
 made on such application may be revoked or set aside. The 
 denial of an ex parte application with the reason therefor 
 may be endorsed thereon by the justice to whom the same 
 is presented. 
 
 XVI. Xo approval of an undertaking given by a party or 
 claimant to procure the discharge of a levy under an attach- 
 ment shall be granted ex parte. The party or claimant ap-
 
 § 12. Board to Make Rules. 61 
 
 plying for such approval shall give at least two days' notice 
 of justification to the adverse party. 
 
 XVII. A stipulation to extend the time of the court 
 "within which to render a judgment or make a decision may 
 be entered into between parties or their attorneys on the 
 record in the minutes of a trial, or in a written stipulation 
 signed to that effect. 
 
 XVIII. Affidavits of service of process must in all cases 
 comply strictly with the provisions of Rule XVIII of the 
 Supreme Court rules. 
 
 XIX. Costs shall not be awarded to a defendant who ap- 
 pears by attorney when there are no verified pleadings, unless 
 a written notice of appearance is filed. 
 
 XX. The phrase " case on appeal " in sections 317 and 
 31:8 of the Municipal Court Act shall be deemed to refer 
 simply to the justice's return on appeal as the same has been 
 heretofore known. The phrase " including the evidence " 
 shall be deemed to include all exhibits admitted in evidence. 
 
 XXI. In cases where attorneys may be represented by 
 clerks, the clerk or clerks so appearing shall be only those 
 whose certificates of clerkship shall have been filed in the 
 office of the clerk of the Court of Appeals. 
 
 XXII. When a cause has been adjourned more than three 
 times, by consent or stipulation, the court may of its own 
 motion place it upon the calendar of causes Reserved 
 Generally. It may be restored on three days' notice and 
 placed upon the calendar for trial for a day subsequent. 
 Parties may at any time consent to take a cause from the day 
 calendar and place it upon the calendar of causes Reserved 
 Generally. 
 
 Rules Relative to Clerks and Attendants. 
 
 I. The clerk, assistant clerk, interpreter and attendants of 
 each court shall attend each day from 9 o'clock a. m. to 
 4 o'clock p. m., and at such other times as the justice may 
 direct, except as otherwise provided by law. The stenog- 
 rapher shall be in attendance during the sessions of the court, 
 and at such other times and places as the justice may direct.
 
 62 Board to Make Rules. § 12. 
 
 II. The attendants shall maintain order in and about the 
 court and the offices thereof. 
 
 III. The attendants and interpreter shall wear an official 
 badge during the session of the court. 
 
 IV. During the session of the court the clerk thereof, or, 
 in his absence, the assistant clerk, shall be in attendance 
 therein, administer oaths, keep minutes and receive the ver- 
 dict of a jury, and when not so employed the time of the 
 clerk and assistant clerk shall be devoted to the business of 
 the clerk's office. 
 
 V. The clerk of each court, or, in his absence, the assistant 
 clerk, shall, on or before the third day of each month, make a 
 statement in writing, duly verified by his oath, of moneys 
 received for fees by him, as such clerk, during the preceding 
 month, and on or before the day named pay in to the finance 
 department of The City of New York all such moneys re- 
 ceived by him for the use, or on behalf of the city, for the 
 preceding month as required by law. A summary thereof 
 shall thereupon be filed with the secretary of the board of 
 justices, together with a detailed statement of the business 
 of the court for the previous month. 
 
 VI. The clerks and assistant clerks shall keep and preserve 
 full, correct and true records of the proceedings of the court 
 and of their office, properly file and preserve all process, 
 pleadings, mandates or other papers, deposit in bank all 
 moneys paid to them, keep accurate accounts thereof, and 
 shall faithfully perform the duties imposed upon them by 
 chapter 580 of the Laws of 1902. 
 
 VII. When moneys are paid to persons other than parties 
 or their attorneys the clerks shall require and file in their 
 offices a written request from the party or the attorney en- 
 titled to such moneys to authorize such payment, and a 
 receipt therefor. 
 
 Notes to section 12. 
 
 Force of rules. — Rules enacted by the board of justices of the 
 Municipal Court, pursuant to section 12 of the Municipal Court Act 
 (Laws 1902, chap. 580) have the force of law and are binding upon 
 the individual justices. Matter of Bolte, 97 App. Div. 551, 552.
 
 § 12. Board to Make Kules. 63 
 
 Notes to section 12, subdivision 6. 
 
 Case stricken from calendar cannot be restored except by consent. — 
 A cause stricken from the calendar of the Municipal Court of New 
 York, for failure of plaintiff to appear, cannot be restored to such 
 calendar except by consent of defendant or by his voluntary appearance. 
 
 Where certain cases in this court were dismissed for nonappearance 
 of either party within the time required, the justice had no authority 
 to restore the causes to the calendar and proceed to the trial thereof, 
 except by defendant's express consent, or by his voluntary appearance 
 without objection after service of a notice of motion on him for rein- 
 statement. Eichner v. Cohen, 46 Misc. Rep. 126; S. C, 91 N. Y. Supp. 
 357. 
 
 Notes to section 12, subdivision 9. 
 
 The law for the removal of an action was repealed by Laws 1904, 
 chap. 598. 
 
 Notes to rule 15. 
 
 Ex parte applications. — Rule 15, which provides that ex parte ap- 
 plications may be made to any justice, only authorizes applications in 
 actions pending in one district to a justice of another district for such 
 orders as may be granted by a justice as distinguished from the court. 
 Matter of Bolte, 97 App. Div. 551, 552. 
 
 Court order. — A court order should have a caption reciting the time, 
 place, and term of court. A judge's order, however, is not vitiated 
 because it contains such a caption, as the caption may be treated as 
 surplusage. The body of an order may be examined for the purpose 
 of determining whether it was made by a court or a judge. Matter of 
 Munson, 95 App. Div. 23. 
 
 Decision of another justice. — One judge cannot, upon mere motion, 
 set aside the decision of another judge, upon allegations that the latter 
 had erred as to any of the questions submitted to his determination. 
 People v. National Trust Co., 31 Hun, 26. See exception to this rule, 
 Stromberg v. Di Salvo, 38 Misc. Rep. 139. 
 
 Notes to section 13, " Court by Whom Held." 
 
 The requirement that a justice who is disqualified to try a cause, to 
 transfer it to an adjoining district, is mandatory. — Where it appears 
 that an action, brought in this court and transferred to a district not 
 adjoining because of the disqualification of the justice, was brought in 
 the proper district and no appeal is taken from an order denying de- 
 fendant's motion to further transfer the cause, not to the district 
 adjoining the one in which the action had been brought but to the 
 district in which defendant resided, the objection that the district to 
 which the transfer was made did not adjoin the district in which the 
 action was brought was waived and could not be raised for the first
 
 64 Actions May be Continued, Etc. § 15. 
 
 time on appeal from a judgment in favor of plaintiff. Lesser v. Adolph, 
 46 Misc. Rep. 265. 
 
 Bias or prejudice of justice. — It has been held by Mr. Justice O'Gor- 
 man in People ex rel. Devery v. Jerome (N. Y. Law Journal of Novem- 
 ber 12, 1901), and Mr. Justice Clarke in People ex rel. Stein v. Brann 
 (N. Y. Law Journal of December 3, 1902), that a writ of prohibition 
 against a magistral e to prevent his trying a case because of his bias 
 or prejudice will not lie. 
 
 Note to section 15, "Action May be Continued before Another 
 
 Justice." 
 
 Reviewing decision of another justice; exception to the rule. — The 
 rule that one justice of this court cannot review the decision of an- 
 other justice does not apply to a case where, after the defendant's 
 motion to open his default has been denied, as he alleges, upon affida- 
 vits surreptitiously handed to the justice by or for the plaintiff after 
 the argument of the motion and because of the justice's misconception 
 that the defendant had paid the judgment voluntarily, the defendant 
 applies, without leave from that justice, for leave to reargue and for 
 a rearguraent of the motion to another justice brought, within eighteen 
 days, into the Municipal Court district by the system of rotation in 
 the assignment of its justices, who granted a reargument and also 
 vacated the order of the first justice denying the motion to open the de- 
 fault — as the motion before the incoming justice is under the cir- 
 cumstances to be deemed practically a separate motion made on different 
 or additional facts. Stromberg v. Di Salvo, 38 Misc. Rep. 139. See 
 also People v. National Trust Co., 31 Hun, 26. 
 
 Note to section 16, "Death or Removal of Justice not to Impair 
 
 Proceedings." 
 
 Expiration of judge's term; successor may determine motion. — An 
 order vacating a judgment of this court made by a justice of said 
 court after the expiration of his term of office is a nullity. Under the 
 provisions of section 16 of the Municipal Court Act, read in conjunc- 
 tion with section 254, a motion to set aside a judgment of said court 
 and for a new trial, pending before and undecided by a justice thereof 
 at the expiration of his term of office, may be heard and determined 
 by his successor in office. Gordon v. Trainor, 46 Misc. Rep. 439. 
 
 Notes to section 20, " Code, Rules of Supreme Court Applicable; 
 
 When." 
 
 See section 363, " Sections of the Code not applicable." 
 Regulation. — The extension of the practice in courts of record to 
 this court by section 20 of the Municipal Court Act was merely in-
 
 § 25. In What District Brought. 65 
 
 tended to regulate the matters over which the Municipal Court has 
 jurisdiction. Matter of Boltc, 97 App. Div. 551. 
 
 Judgment; execution; order of arrest. — In an action brought in this 
 court to foreclose a lien on personal property which the defendant had 
 maliciously and willfully disposed of, the court under section 140 of 
 the Municipal Court Act and section 1487 of the Code of Civil Pro- 
 cedure, construed in connection with section 20 of the Municipal Court 
 Act, has no power to enforce a judgment against the defendant by an 
 execution against the person, unless an order of arrest has been issued 
 in the action. Liederman v. Rooner, 82 App. Div. 541. 
 
 Order not appealable; levy on execution; how discharged pending 
 defendant's appeal. — An order of a justice of this court denying a mo- 
 tion to vacate an order of arrest is not appealable. Semhle, that where 
 a defendant against whom a judgment has been recovered in this court 
 upon which execution has been issued and levy made thereunder on 
 his personalty files a notice of appeal and serves upon the plaintiff 
 aii undertaking in the form required by the Municipal Court Act (Laws 
 1902, chap. 5S0, § 314) for more than $100, and for twice the amount 
 of the judgment but in an amount less than $500, the effect of the 
 service is merely to stay further proceedings under the execution, and 
 if the defendant desires to discharge the levy he should file a new 
 undertaking, of similar conditions, in $500, in which event this court 
 would, under Code Civil Procedure, section 1311, taken in connection 
 with section 20 of the Municipal Court Act, have jurisdiction to make 
 an order discharging the levy. Hyman v. Segal, 44 Misc. Rep. 226. 
 
 § 25. In what district brought. — An action or proceeding 
 of which the municipal court has jurisdiction must be 
 brought : 
 
 1. In a district in which either the plaintiff or defendant 
 or one of the plaintiffs or one of the defendants resides, un- 
 less all the plaintiffs or all the defendants reside out of the 
 city of New York, in which case the action of* proceeding 
 may be brought in said court in any district ; provided, how- 
 ever, that whenever any action shall be brought by the as- 
 signee of the cause of action, such action shall upon the 
 demand of a defendant made as provided in subdivision four 
 of this section, be transferred to the district in which the 
 defendant resides and the court must make an order for such 
 transfer, as provided in subdivision four of this section. 
 
 * So in original.
 
 66 In What District Brought. § 25. 
 
 (.4s amended by Laws 1904, chap, 93 ; became a law March 
 18, 1904.) 
 
 § 25. In what district brought. — An action or proceeding 
 of which the municipal court has jurisdiction must be 
 brought: 
 
 1. In a district in which either the plaintiff or defendant 
 or one of the plaintiffs or one of the defendants resides, un- 
 less all the plaintiffs or all the defendants reside out of f he 
 city of New York, in which case the action or proceeding 
 may be brought in said court in any district ; provided, how- 
 ever, that whenever any action shall be brought by the as- 
 signee of the cause of action, such action shall upon the 
 demand of a defendant made as provided in subdivision four 
 of this section, be transferred to the district in which the 
 defendant resides and the court must make an order for such 
 transfer, as provided in subdivision four of this section. 
 
 2. If the defendant be a corporation created by law, in a 
 district in which the plaintiff or either of the plaintiffs re- 
 sides, or in which (if it be a corporation) it transacts its 
 general business or keeps an office or has an agency estab- 
 lished for the transaction of business or is established by law, 
 except the corporation of the city of New York, which may 
 sue, or be sued in any district, except as provided for in sub- 
 division five of this section. 
 
 3. By plaintiffs not residing in the city of New York, in 
 the district in which the defendant, or one of the defendants 
 resides, and against a defendant or defendants, not residing 
 in said city, in the district in which the plaintiff or one of 
 the plaintiffs resides ; but where all the parties reside out of 
 said city the action may be brought in any district. No 
 person who shall have a place in said city for the regular 
 transaction of business shall be deemed a nonresident under 
 the provisions of this act. 
 
 4. If the district in which the action or proceeding is 
 brought is not the proper district, the action may, notwith- 
 standing, be tried therein, unless the action is transferred to 
 the proper district before trial upon demand of the defendant
 
 § 25. In What District Brought. 67 
 
 made upon or before the joinder of issue in writing or in 
 open court, followed by the consent of the plaintiff given in 
 like manner, or the order of the court. The demand must 
 specify the district to which defendant requires the action to 
 be transferred. The court must make such order when the 
 district in which the action or proceeding is brought is not 
 the proper district, as specified in this section or the next one, 
 if such demand be made. 
 
 5. All actions by or on behalf of the city of New York to 
 recover a penalty or fine for a violation of any corporation 
 ordinance, when the amount of such penalty or fine shall not 
 exceed five hundred dollars, must be brought in the district 
 in which the violation of such ordinance happened or oc- 
 curred. And all actions to recover a penalty or fine for a 
 violation of any provision of the sanitary code or of any 
 regulation of the fire commissioner or of any laws or ordi- 
 nances which either the health or fire department is author- 
 ized, empowered and especially charged to enforce, where 
 the amount of such penalty or fine shall not exceed five hun- 
 dred dollars, must be brought in the district in which such 
 violation happened or occurred. (As amended by Laws 
 1904, chap. 625, passed May 6, 1904.) 
 
 Notes to section 25. 
 
 The amendment in subdivision 1 consists of the word " or," which 
 corrects the word " of," in Laws 1904, chapter 93. 
 
 Notes to section 25, subdivisions 2 and 3. 
 
 Nonresident plaintiff against a foreign corporation having a place of 
 business in the city of New York. — Jurisdiction of an action brought 
 in this court by a nonresident plaintiff against a foreign corporation 
 having a place in said city for the regular transaction of its business 
 is controlled by subdivision 3, and not by subdivision 2 of section 25 
 of the Municipal Court Act (Laws 1902, chap. 580), and under subdi- 
 vision 3 is properly brought in a district of said city in which the de- 
 fendant corporation has a. place for the regular transaction of a portion 
 of its business, although it has a general office for the regular trans- 
 action of its business in another district in said city. Goldzier v. Cen- 
 tral R. R. of N. J., 43 Misc. Rep. 667.
 
 68 Action ; How Commenced. § 26. 
 
 Notes to section 25, subdivision 5. 
 
 Construction; removal to proper district; demand; waiver. — Although 
 subdivision 5 of section 25 requires an action for a penalty for a vio- 
 lation of an order of the department of health of the city of New York 
 to be brought in the court district in which the violation happened, the 
 provisions of subdivision 4 of said section, permitting the action to be 
 tried where brought unless upon or before joinder of issue the defend- 
 ant demands a transfer to the proper district, lead to the conclusion 
 that jurisdiction is not affected by bringing the action in a district 
 other than the one in which the violation occurred. Unless the de- 
 fendant demands a transfer upon or before the joinder of issue the 
 right of removal is lost and the judgment stands. Department of 
 Health v. Halpin, 40 Misc. Rep. 243. 
 
 Notes to section 26, "Action ; how Commenced." 
 
 Costs to defendant upon voluntary discontinuance by plaintiff; in- 
 terpretation of sections 248 and 332; Municipal Court Act. — Blum v. 
 O'Conner, X. Y. Law Journal, July 1, 1903. Supreme Court, Appellate 
 Term, June, 1903. Opinion by Freedman, P. J. This case is not re- 
 ported elsewhere. See also Barry v. Winkle, 36 Misc. Rep. 171; Levine 
 v. Haliner, 62 App. Div. 195; McCuskie v. Hendrickson, 125 N. Y. 555. 
 
 Costs on discontinuance of summary proceedings. — Where a landlord 
 voluntarily discontinues, before final submission, summary proceedings 
 taken by him in the Municipal Court of the city of New York since 
 the passage of Laws 1002 (chap. 580), the tenant is entitled as costs 
 to his actual disbursements to the extent of $10, besides the fees of 
 any witnesses attending from another county, and this under Code 
 Civ. Proc, § 3076, subd. 2. Cohen v. Melle, 43 Misc. Rep. 79. 
 
 Right to discontinue on payment of costs. — A plaintiff has an abso- 
 lute right to discontinue an action, brought in this court, at any time 
 before it is finally submitted, upon payment of costs, and this although 
 the defendant has interposed a counterclaim. The Municipal Court 
 Act (Laws 1902, chap. 580) has made no change in this respect. 
 Nichols v. Williams, 42 Misc. Rep. 527. 
 
 Leave refused a plaintiff where granting it might possibly give him 
 an unfair advantage. — A plaintiff brought an action in this court for 
 a sum greater than $250, and that action was at the instance of the 
 defendant removed to the City Court of said city under Laws 1902 
 (chap. 580, § 3), upon the ground that the damages claimed exceeded 
 $250. Afterward the plaintiff brought a second action in the Munici- 
 pal Court, on the same claim, for $249, and thereafter asked of but 
 was refused by the City Court leave to discontinue the first action on 
 payment of costs. Held, that leave to discontinue the City Court 
 action was properly refused, as the conduct of the plaintiff indicated 
 a determination to try the case in the Municipal Court and justified
 
 § 27. 
 
 Summons ; Requisites. 
 
 69 
 
 a suspicion that this determination rested upon the belief, ill founded 
 if entertained, that the defendant would be at a greater disadvantage 
 in that court than in the City Court. Finklestein v. Meenan, 43 Misc. 
 Rep. 376. 
 
 Service of summons. — There is no provision in the Municipal Court 
 Act which requires that on the service of an alias summons the original 
 summons should also be served. The alias summons is as much & 
 writ issued to obtain jurisdiction as the first summons. Lawrence v. 
 Bernstein, 46 Misc. Rep. 608. 
 
 Notes to section 27, "Summons; Requisites." 
 
 " Section twenty-five of this act," in the concluding lines thereof, is 
 an error, and should read section twenty-nine. 
 
 Fictitious name; when the judgment is fatally defective and an exe- 
 cution issued thereon is void. — The summons in an action brought in 
 the Municipal Court of the city of New York was entitled as follows: 
 
 " Mary Mabkowitz, Plaintiff, 
 against 
 Etta Lipsky and John Goldbebg, 
 Defendants. 
 
 Free summons. 
 ■ First names being fictitious', un- 
 known to plaintiff." 
 
 The certificate of service recited that the marshal served the sum- 
 mons " on John Goldberg, one of the within-named defendants * * * 
 and that I know the person to be one of the defendants therein 
 named." The docket, under the title " Markowitz against Lipsky et 
 ai.," recited that the plaintiff appeared in person and that the com- 
 plaint was for goods sold and delivered; that the defendant appeared 
 in person, and that judgment was rendered for $20.25 damages and 
 $1 costs. 
 
 The record did not show for or against whom the judgment had 
 been rendered, or that Goldberg was a party to the action or appeared 
 therein. An execution was then issued directing the marshal to col- 
 lect the amount due out of " the separate property of the judgment 
 debtor, John Goldberg, first name fictitious, real name unknown to 
 plaintiff." This execution was levied upon property belonging to 
 Nathan M. Goldberg, who was one of the persons upon whom the sum- 
 mons in the action was served, and who appeared in answer to the 
 summons. In an action brought by Nathan M. Goldberg against 
 Markowitz and the marshal who levied the execution to recover dam- 
 ages for the alleged conversion of the property levied upon, it was 
 Held, that the record of the judgment was fatally defective, and that
 
 70 "Who alay Issue Summons, Etc. § 29. 
 
 the execution issued thereon was void upon its face, and constituted 
 no protection to the marshal or to any one acting under it; that 
 the docket did not show upon its face that any judgment had been 
 rendered in favor of the plaintiff against the defendant; that, as 
 Lipsky was the only defendant named in the record, there was no pre- 
 sumption that the proceeding was against any one but Lipsky. Gold- 
 berg v. Markoicitz, 94 App. Div. 237, 238. 
 
 Section 29. Summons: attorney-general and corporation 
 counsel may issue, et cetera. — In any and all actions brought 
 in the name of the people of the state of New York by the 
 attorney general or in the name of the city of New York, or 
 of any department, board, or officer thereof, by the corpora- 
 tion counsel of the city of New York, as attorney for said 
 city, or said department, board or officer thereof, to recover 
 a penalty or penalties for the violation of any laws or or- 
 dinance, the summons may be issued out of said court by the 
 attorney general or by the corporation counsel in his own 
 name without the same being subscribed by the clerk of the 
 court where such action or actions are brought, and in such 
 actions the attorney general or the corporation counsel shall 
 not be required to pay to the clerk of the court the fees in 
 the action, but shall account therefore to the city treasurer 
 and shall collect the same from the defendant, when judg- 
 ment is recovered; and no fees or costs shall be demanded 
 of the people of the state of New York or the attorney gen- 
 eral or of the said the city of New York, or any board or 
 officer thereof in any such suit or proceeding. (As amended 
 by Laws 1905, chap. 73; become a law March 17, 1905.) 
 
 Notes. 
 
 This section is the same as section 1384 of the charter, as amended 
 by Laws 1905 (§ 125), which became a law March 31, 1905, with the 
 exception of the omission of the word " department " before the word 
 " board " in the last line. 
 
 Exemption as to costs upon appeal by the city. — The concluding 
 part of section 29 of the Municipal Court Act provides that " no fees 
 or costs shall be demanded of the city of New York, or any board or 
 officers thereof in any such suit or proceeding." The words "any 
 such suit or proceeding" refer to an action or proceeding to recover
 
 § 31. Method of Service on Summons. 71 
 
 a penalty for the violation of any laws or ordinance brought in the 
 manner authorized by section 29. In the case at bar the plaintiff and 
 appellant, upon its defeat in the court below, had the benefit of the 
 concluding part of the sentence, and it is extremely doubtful whether 
 the exemption as to costs covers the further aggressive proceeding by 
 the appeal. To have the question which is presented in a number of 
 other cases before us settled, the costs of the appeal will be imposed 
 in the order of affirmance, and the appellant may have leave to appeal 
 to the Appellate Division. Health Department of the City of New 
 York v. Owen, Supreme Court, Appellate Term. Freedman, P. J., 
 Bischoff and Blanchard, JJ., N. Y. Law Journal, December 11, 1903, 
 reported in 42 Misc. Rep. 222, as to action to recover a penalty from a 
 physician for failure to report facts relative to birth of a child as 
 required by Charter, section 1237. 
 
 Notes to section 30, "Service; Alias." 
 
 Endorsement of summons. In an action to recover a penalty where 
 the original summons contained the endorsement required by section 
 38, the fact that the copy alias summons served with the copy sum- 
 mons was not endorsed " action for a penalty, etc.," does not deprive 
 the court of jurisdiction. State Board of Pharmacy v. Jacob, 46 Misc. 
 Rep. 607. 
 
 Service of summons. — There is no provision in the Municipal Court 
 Act which requires that upon the service of an alias summons, the 
 original summons should also be served. The alias summons is as 
 much a writ issued to obtain jurisdiction as the first summons. Law- 
 rence v. Bernstein, 46 Misc. Rep. 608. 
 
 Notes to section 31, " Method of Service of Summons." 
 
 Original and copy summons. — There is no provision in the Municipal 
 Court Act which requires that on the service of an alias summons the 
 original summons should also be served. The alias summons is as 
 much a writ issued to obtain jurisdiction as the first summons. Law- 
 rence v. Bernstein, 46 Misc. Rep. 608. 
 
 By Laws 1905 (chap. 211), section 2881 of the Code of Civil Pro- 
 cedure was amended to read as follows : 
 
 § 2881. Service of summons, relating to express, insurance and tele- 
 graph companies. — Where the defendant to be served is a corporation, 
 association, partnership or person doing business in the state as an 
 express company, an insurance company, or a telegraph company, and 
 no person resides in the county to whom a copy of the summons may 
 be delivered, as prescribed in the foregoing sections of this article, it 
 may be personally served on the express company by delivering a copy 
 thereof to any local or general agent to receive freight or, parcels, 
 route agent, or messenger of the defendant, residing in the county, and
 
 72 Order for Service of Summons, Etc. § 32. 
 
 on any insurance company by delivering a copy thereof to any local 
 or general agent of the defendant, residing in the county, and on any 
 telegraph company by delivering a copy thereof to any office manager 
 of the defendant, residing in the county; unless at least thirty days 
 before it was issued, the defendant had filed in the office of the clerk 
 of the county, a written instrument, designating a person residing 
 in the county, upon whom process to be issued by a justice of the peace 
 against the defendant may be served; in which case the summons may 
 be personally served by delivering a copy thereof to the person so 
 designated. 
 
 § 2. This act shall take effect September first, nineteen hundred 
 and five. 
 
 As section 31 of the Municipal Court Act contains the provisions for 
 " Methods of Service " of the summons, it is doubtful if this provision 
 of the Code will be applicable to this court. 
 
 Notes to section 32, "Order for Service of Summons; When 
 Defendant not Found." 
 
 Substituted service of summons — Affidavit — Service of alias sum- 
 mons. — The failure to state in an affidavit, upon which an order for 
 substituted service of a Municipal Court summons was granted, that 
 no previous application for such an oi'der had been made, is an irregu- 
 larity merely and refusal of the trial justice to dismiss the complaint 
 upon that ground does not constitute reversible error. Lawrence v. 
 Bernstein, 46 Misc. Rep. 608. See also Skinner v. Stiele, 88 Hun, 307 ; 
 Matter of National G. Co., 82 App. Div. 593; Pratt v. Bray, 10 Misc. 
 Rep. 445. 
 
 Notes to section 34, "Papers to be Filed; Proof of Service." 
 
 Substituted service; proof thereof requisite to jurisdiction. — Proof of 
 due substituted service and a compliance with section 34 of the Munic- 
 ipal Court Act are essential to jurisdiction. A mere memorandum on 
 the summons of payment of fees is not such proof of substituted service. 
 Objection to jurisdiction on such ground may be raised at any time. 
 Skinner V. Jordan, 46 Misc. Rep. 92. 
 
 Notes to section 36, " Who may Serve Summons." 
 
 Amending affidavit of service. — It not appearing that defendant made 
 objection to the filing of an amended affidavit of service, the question 
 of plaintiff's right to file it cannot be considered on appeal. State Board 
 of Pharmacy v. Jacob, 46 Misc. Rep. 607. 
 
 Notes to section 37, " Return Day." 
 
 Judicial notice as to the time of sunrise and sunset. — The court will 
 take judicial notice of the time of the rising or setting of the sun on
 
 § 56. Order of Arrest to be Granted. 73 
 
 any given day, and may, where such question is material, consult the 
 almanac, not strictly as evidence, but for the purpose of refreshing the 
 memory of the court and jury. Montenes v. Metropolitan St. R. Co., 
 77 App. Div. 493. 
 
 Notes to section 38, " Indorsement upon Summons." 
 
 Alias summons — Amending affidavit of service. — Where in an action 
 brought in this court to recover a statutory penalty, the original sum- 
 mons and copy thereof had upon it the required reference to the cause 
 of action, the fact that the copy alias summons served with the copy 
 summons, was not endorsed " action for a penalty, etc.," as required by 
 section 38 of the Municipal Court Act did not deprive the court of 
 jurisdiction. 
 
 It not appearing that defendant made objection to the filing of an 
 amended affidavit of service, the question of plaintiff's right to file it 
 cannot be considered on appeal. State Board of Pharmacy v. Jacob, 46 
 Misc. Rep. 607. 
 
 Notes to section 40, " Parties; Appearance of." 
 
 Appearance by a person forbidden to practice. — The attorney for the 
 defendant, in an action brought in this court, cannot avail himself of 
 the objection that a person sent by him to the court on the return day 
 of the summons, and who then entered a general appearance for the 
 defendant, was not an admitted attorney and was forbidden to practice 
 by section 63 of the Code of Civil Procedure. Kerr v. Walter, 104 App. 
 Div. 45. 
 
 Costs. — Appearance by attorney is necessary to obtain costs under 
 section 332. Rice v. Hogan, 45 Misc. Rep. 400. 
 
 Nonappearance; restoring case to calendar. — Where certain cases in 
 this court were dismissed for nonappearance of either party within the 
 time required, the justice had no authority to restore the causes to the 
 calender and proceed to the trial thereof, except by defendant's express 
 consent, or by his voluntary appearance, without objection, after ser- 
 vice of a notice of motion on him for reinstatement. Eichner v. Cohen, 
 91 X. Y. Supp. 357. 
 
 § 56. In what cases order of arrest to be granted — , An or- 
 der to arrest the defendant must or may be granted, directed 
 to any marshal of said city, in the following cases, but no 
 female can be arrested except for a wilful injury to person or 
 property : 
 
 1. In an action for the recovery of damages, in a cause of 
 action not arising on contract, when the defendant is not a 
 resident of the city of IsTew York, or is about to remove there-
 
 74 Warrant of Attachment. § 74. 
 
 from, or when the action is for a wilful injury to person or 
 property. 
 
 2. In an action for a fine or penalty, or for money or prop- 
 erty embezzled or wrongfully misapplied or converted to his 
 own use by a public officer, or an officer of a corporation, or 
 an attorney, factor, broker, agent or clerk, in the course of 
 his employment as such, or by any other person acting in a 
 fiduciary capacity. 
 
 3. Where the defendant has been guilty of a fraud in con- 
 tracting the debt, or incurring the obligation for which the 
 action is brought, or in concealing or disposing of the prop- 
 erty, for the taking, detention, or conversion of which the 
 action is brought, except that no order of arrest shall be 
 granted in an action specified in this subdivision where the 
 debt contracted or the obligation incurred over all payments 
 and set-offs or the property taken, obtained or converted, 
 amounts to, or is valued at one hundred dollars, or less. 
 
 4. When the defendant has removed, concealed, or dis- 
 posed of his property, or is about to do so, with the intent to 
 defraud his creditors, except that no order shall be granted 
 in such an action unless the plaintiff's claim or demand over 
 all payments and set-offs exceeds one hundred dollars. (As 
 amended by Laws 1903, chap. 156, in effect April 8, 1903.) 
 
 5. When an arrest is authorized by special statute, in an 
 action for a fine or penalty, or for a wilful violation of duty. 
 
 6. When the action is for the recovery of a fine or penalty 
 under the ordinances or by-laws of the city of New York. 
 
 Notes to section 56. 
 
 The amendments consist in adding to subdivisions 3 and 4 that no 
 order of arrest shall be granted unless the amount of the claim exceeds 
 $100. 
 
 Cash bail. — It stands in place of the bail — Presumed to belong to 
 the party whose appearance it secures — Effect of his written direction 
 to the sheriff to pay it to a third person as against his creditors. 
 Finelite v. Sonberg, 75 App. Div. 455. See People ex rel. Meyer V. 
 Gould, 75 App. Div. 524. 
 
 Constitutionality. — This act was held to be constitutional by the 
 Supreme Court, Special Term, Blanchard, J., in People ex rel. Arena v. 
 Warden, etc., N. Y. Law Journal, April 21, 1903.
 
 § 89. Application to Procure Warrant. 75 
 
 Body execution. — No right to, where no order of arrest had issued in 
 action to foreclose lien on a chattel where sale was conditional. Teitel- 
 baum V. Pisatilo, N. Y. Law Journal, February 6, 1903, Roesch, J., 
 borough of Manhattan, fourth district. 
 
 Money deposited in lieu of bail-right of a creditor of the accused 
 thereto where the money belongs to a third person. People ex rel. 
 Meyer v. Gould, 75 App. Div. 524. See Finelite v. Sonberg, 75 App. 
 Div. 455. 
 
 Sale of entire retail stock to one person; Laws 1902, chapter 528, 
 construed. — It is doubtful whether such a sale in which so much de- 
 pends upon the purchaser as required by this statute would furnish 
 grounds for an order of arrest. It might be that the seller had done 
 everything required upon his part, and that the purchaser had promised 
 to do what the statute requires, and had omitted to do it, and yet the 
 sale would be bad if the act is valid. The plaintiff having failed to 
 prove affirmatively that the defendant did not comply with the statute 
 in making the sale has failed to prove a cause of action necessary to 
 support an order of arrest. Friedland v. Wexler, N. Y. Law Journal, 
 September 14, 1903, Bennet, J., sitting in the seventh district, borough 
 of Manhattan in August, 1903. See also Veit v. Collins, 39 Misc. 
 Hep. 40. 
 
 Notes to section 68, " Motion to Discharge from Arrest." 
 
 Failure to issue execution in time; subsequent issue. — Plaintiff ob- 
 tained an order of arrest, recovered judgment, but failed to issue 
 execution before the expiration of twenty-four hours after he obtained 
 the judgment, held, that defendant, although out on bail, is entitled to 
 be discharged under Section 68. 
 
 Held, also that such discharge does not defeat plaintiff's right to the 
 subsequent issue of a body execution upon the judgment under section 
 271. Rogow v. Clark, 40 Misc. Rep. 208. 
 
 Order denying motion to vacate order of arrest is not appealable. 
 Leavitt v. Katzoff, 43 Misc. Rep. 26; Smith v. Ely, 46 Misc. Rep. 458. 
 
 Notes to section 74, " What Must be Shown to Procure Warrant 
 of Attachment." 
 
 Conclusions; knowledge; statements. — A warrant of attachment which 
 states that the grounds thereof are " that defendant is a natural person 
 and that he has departed from place where he last resided with intent 
 to defraud his creditors and to avoid service of a summons; that he 
 keeps himself concealed with like intent; that he has removed his 
 property from the county of Kings, where he last resided, with intent 
 to defraud his creditors and has secreted his property with like in- 
 tent," is not defective in form. The warrant of attachment will be 
 vacated where the affidavits on which it was issued consist almost
 
 76 Application to Vacate Warrant. §§ 77-79 
 
 wholly of statements of others and of conclusions of the affiants 
 founded thereon, and do not state on the knowledge of the affiants any 
 facts establishing the existence of any one of the grounds stated in 
 the warrant. Bclaney v. Bouse, 91 App. Div. 437. 
 
 Sale of merchandise in bulk under Laws 1902, chapter 528; judgment 
 by default, summons not personally served; fraud must be actual, not 
 merely statutory, to justify an attachment. — A judgment cannot be ren- 
 dered by default pursuant to section 91 of the New York Municipal 
 Court Act (Laws 1902, chap. 580) or section 2918 of the Code of Civil 
 Procedure, in an action where the defendant has not appeared or been 
 personally served with the summons, but in which, however, his prop- 
 erty has been attached, unless it appears that the affidavits upon which 
 the warrant of attachment was issued were sufficient to authorize it. 
 
 On an application for a warrant of attachment on the ground that 
 the defendant has disposed of his property with intent to defraud his 
 creditors, the burden of proving the fraudulent intent is upon the 
 party applying for the writ, and circumstances which create a strong 
 suspicion of fraud, but yet fall short of prima facie proof thereof, are 
 not sufficient. An averment in the moving affidavits that, upon a sale 
 by the defendant of his entire stock of merchandise in bulk, the de- 
 fendant and the purchaser did not do the things required by chapter 
 528 of the Laws of 1902, which provides that the sale of an entire 
 stock of merchandise in bulk is fraudulent and void against the cred- 
 itor of the seller, unless, at least five days before the sale, the seller 
 and the purchaser do certain things, is insufficient to establish the 
 violation of the statute in question, where it is evident that the aver- 
 ment is not based upon personal knowledge and the situation of the 
 parties is not such as to create a presumption of knowledge and no 
 sources of information are disclosed. Semble, that the fraud, which, 
 bj the Code of Civil Procedure, is made the ground for an attachment, 
 is an actual and intentional or moral fraud, and not one which is 
 declared to be such by statute because of the omission of certain speci- 
 fied formalities. Mohlman Co. v. Landicehr, 87 App. Div. 83. 
 
 Notes to section 77, " How Warrant Executed." 
 
 Additional personal property exempt in certain cases. — See amend- 
 ment to Code Civil Procedure, section 1391, by Laws 1905, chapter 175, 
 to be found under section 271, p. 101, of this supplement. 
 
 Notice to section 89, "Application to Vacate or Modify Warrant 
 of Attachment." 
 
 An attachment against "John Doe"; effect of failure of return to 
 excuse due service of summons. — An attachment against " John Doe " 
 is not issued against a fictitious person and should not be vacated on 
 the motion of the real party against whom it is issued. Where, how-
 
 § 89. Application to Vacate Warrant. 11 
 
 ever, there has been no personal service of the summons and the return 
 fails to make proper excuse therefor, the defect is fatal to jurisdiction, 
 although the return is amendable. Silverman v. Davis, 45 Misc. 
 Rep. 417. 
 
 Conclusions and facts. — Affidavits stating conclusions of belief, but 
 not facts, are insufficient grounds for an attachment. Railings v. Mc- 
 Donald, 76 App. Div. 112. 
 
 Attaching money deposited as bail, facts, not conclusions of belief, 
 must be stated. Railings v. McDonald, 7G App. Div. 112. 
 
 Irregularity. — Attachment, motion to vacate it because of a recital 
 of " wrongful detention " instead of " wrongful conversion " is an ir- 
 regularity and must be specified in the notice of motion. Railings v. 
 McDonald, 76 App. Div. 112. 
 
 Jurisdiction — Insufficient affidavit — Warrant not signed by plain- 
 tiff's attorney — Inquest — Insufficiency of proof. — The affidavit of 
 plaintiff, upon which a warrant of attachment was issued, applied for 
 upon the ground that defendant had departed from the State with in- 
 tent to defraud his creditors and avoid the service of summons and 
 kept himself concealed with like intent, did not state upon what his 
 alleged belief that defendant had so departed, with said intent, was 
 founded; it stated that plaintiff and his employees had made diligent 
 effort to find defendant, but did not show in what such efforts consisted, 
 nor what his employees were told of defendant's departure, or who 
 told them, or who the employees were that were told. Neither the affi- 
 davits of the said employees or of the persons who informed them as 
 to defendant's departure were furnished, nor was any reason given for 
 not furnishing them. Held, that the affidavit was insufficient to con- 
 fer jurisdiction to issue the warrant. 
 
 A warrant of attachment not signed by plaintiff's attorney as re- 
 quired by section 641 of the Code of Civil Procedure, is irregular and 
 void. 
 
 Where, upon an inquest, plaintiff's proof consists merely of the con- 
 tract sued upon and his conclusion that there was something due, he is 
 not entitled to judgment. Lassen v. Burt, 46 Misc. Rep. 582. 
 
 Note. — Section 75 of the Municipal Court Act, " Contents of War- 
 rant," contains no provision that the warrant of attachment must be 
 signed by the attorney, nor is there any other provision in the act 
 containing such requirement; for obvious reasons a warrant of attach- 
 ment may be obtained in this court by the plaintiff personally, with- 
 out an attorney, and thus there would be no attorney to sign the 
 warrant. Section 641 of the Code of Civil Procedure has no application 
 to this court; it applies only to courts of record where a party cannot 
 appear personally and must have an attorney. The case of McDonald 
 v. Kieferdorf, 18 N. Y. Supp. 763 (46 N. Y. State Rep. 176), cited as 
 authority, arose in the late Court of Common Pleas, and is an author- 
 ity for such practice in a court of record.
 
 78 Effect of Vacating Warrant, Etc. § 90. 
 
 Notes to section 90, " Effect of Vacating Warrant," and section 
 91, " Judgment where Property has been Attached." 
 
 Fraud; attachment issued and summons has not been personally 
 served; the fraud which will justify an attachment must be an actual, 
 not a mere statutory one; what is not sufficient to establish that a sale 
 of merchandise in bulk is void under chapter 528 of the Laws of 1902; 
 judgment by default. — A judgment cannot be rendered by default pur- 
 suant to section 91 of the New York Municipal Court Act (Laws 
 1902, chap. 580) or section 2918 of the Code of Civil Procedure, in an 
 action where the defendant has not appeared or been personally served 
 with the summons, but in which, however, his property has been at- 
 tached, unless it appears that the affidavits upon which the warrant 
 of attachment was issued were sufficient to authorize it. On an ap- 
 plication for a warrant of attachment on the ground that the defendant 
 has disposed of his property with intent to defraud his creditors, the 
 burden of proving the fraudulent intent is upon the party applying 
 for the writ, and circumstances which create a strong suspicion of fraud, 
 but yet fall short of prima facie proof thereof, are not sufficient. 
 
 An averment in the moving affidavits that, upon a sale by the de- 
 fendant of his entire stock of merchandise in bulk, the defendant and 
 the purchaser did not do the things required by chapter 528 of the 
 Laws of 1902, which provides that the sale of an entire stock of mer- 
 chandise in bulk is fraudulent and void against the creditor of the 
 seller, unless, at least five days before the sale, the seller and the 
 purchaser do certain things, is insufficient to establish the violation 
 of the statute in question where it is evident that the averment is not 
 based upon personal knowledge and the situation of the parties is not 
 such as to create a presumption of knowledge and no sources of infor- 
 mation are disclosed. Semble, that the fraud, which, by the Code of 
 Civil Procedure, is made the ground for an attachment, is an actual 
 and intentional or moral fraud, and not one which is declared to be 
 such by statute because of the omission of certain specified formalities. 
 Mohlman Co. v. Landwehr, 87 App. Div. 83. 
 
 Judgment falls, when. — Where defendant is not personally served 
 with process and jurisdiction is sought to be obtained by procuring and 
 levying an attachment on his personal property, if the attachment be 
 unwarranted, a judgment rendered against defendant will fall. Durkins 
 v. Paten, 97 App. Div. 139. 
 
 Jurisdiction. — Where an action in this court is begun by the service 
 of a warrant of attachment without personal service of the summons, 
 and the defendant does not appear in the action except upon a motion 
 to vacate the attachment, which is denied, the court has no jurisdiction 
 to render judgment against the defendant by default if the attach- 
 ment should have been set aside for insufficiency. The fact that after 
 the denial of the motion to vacate the attachment the action was dis-
 
 §§ 95-115a. Replevin. 79 
 
 missed because of the failure of either party to appear on the day set 
 for its trial, and that the defendant subsequently consented that the 
 case be restored to the calendar and allowed judgment to be taken 
 against him by default, does not operate as a waiver of the defendant's 
 right to contest the jurisdiction of the court. Delaney V. Bonse, 91 
 App. Div. 437. 
 
 Order vacating attachment is not appealable. — Feldman v. Siegel, 
 43 Misc. Rep. 392. 
 
 ' Notes to section 95, "Action to Recover a Chattel." 
 
 The omission of defendants to demand judgment for a return of a 
 chattel does not preclude them from maintaining a subsequent action 
 to regain possession of the chattel subordinate to the title of a third 
 person. Levy v. Hohiceisner, 101 App. Div. 82. 
 
 Lost property. — The finder of articles lost in a large retail dry goods 
 store is entitled to possession thereof as against the proprietor of the 
 store. The finder of the property is a voluntary bailee for the owner, 
 if ever he should come forward to reclaim it, and an action of replevin 
 will lie in favor of the finder against any person who detains posses- 
 sion from him. White v. Daniels, N. Y. Law Journal, January 9, 1904, 
 Joseph, J., sitting in the seventh district, borough of Manhattan. 
 
 § 115a. Third party may interplead and defend. — At any 
 time before a chattel or chattels which have heen replevied 
 are actually delivered to either part}', and at least two days 
 before the return day of the summons, a person, not a party 
 to the action, who claims a right to the possession of the 
 chattel or chattels so replevied, or any part thereof, which 
 right is claimed to have existed at the time when the said 
 chattel or chattels were replevied, and which he desires to 
 assert, may make an affidavit and deliver the same to the 
 court, stating that he makes such claim, and does so without 
 collusion with the defendant. The party shall also specify 
 in such affidavit, the chattel or chattels to which he makes 
 claim, setting forth the facts upon which his right depends, 
 and praying to be impleaded as a defendant in the action. 
 The court may thereupon grant leave to said party to appear 
 and defend, and the provisions of this act in relation to the 
 defendant or defendants originally proceeded against, so far 
 as applicable, shall apply to the said party, and the court 
 may, in its discretion, make such order, or direct such deliv-
 
 80 Replevin. §§ 115a-117. 
 
 ery of the possession of the property, as may be just, and 
 thereupon the entire controversy may be determined in the 
 action. Nothing in this section, however, shall be construed 
 to affect the rights of the parties to maintain a separate 
 action, or to recover damages for the wrongful taking or 
 detention of a chattel, unless judgment is awarded against 
 him, as herein provided, on the merits. In that case the 
 court may grant leave to said party to appear and defend, 
 and the provisions of this act in relation to the defendant 
 or defendants originally proceeded against, then apply to 
 said party. (This section added hy Laws 1903, chap. 431, 
 in effect May 7, 1903.) 
 
 Notes to section 115a. 
 
 See also section 187, " Interpleader by order in certain cases." 
 Calling third party as a witness; omission to demand return of chattel. 
 — Where the defendants set up in their answer title in a third per- 
 son they may call such third person as a witness, irrespective of the 
 fact that the third person did not avail himself of the provisions of 
 section 115a of the Municipal Court Act, authorizing a third party 
 claiming title to the chattel to interplead and defend. In such a case 
 the omission of the defendants to demand judgment for a return of 
 the chattel does not preclude them from maintaining a subsequent 
 action to regain possession of the chattel subordinate to the title of 
 the third person. Section 115« of the Municipal Court Act does not 
 affect or limit section 117 of that act. Levy v. Hohiveisner, 101 App. 
 Div. 82. 
 
 Notes to section 117, "Defendant May Demand Judgment for 
 Return of Chattel. 
 
 Omission to demand; calling third party as a witness. — Where the 
 defendants set up in their answer title in a third person, they may 
 call such third person as a witness irrespective of the fact that the 
 third person did not avail himself of the provisions of section 115a of 
 the Municipal Court Act, authorizing a third party claiming title to 
 the chattel to interplead and defend. In such a case the omission of 
 the defendants to demand judgment for a return of the chattel does 
 not preclude them from maintaining a subsequent action to regain 
 possession of the chattel, subordinate to the title of the third person. 
 Section 115a of the Municipal Court Act does not affect or limit sec- 
 tion 117 of that act. Levy v. Hohweisner, 101 App. Div. 82.
 
 §§ 123-139. Replevin. 81 
 
 Notes to section 123, " Final Judgment, et cetera." 
 
 Neglect to demand return of chattels. — A final judgment rendered in 
 favor of the defendants in an action brought in this court to replevy 
 a chattel should not, where the chattel has been replevied by the 
 plaintiff, and the defendants have not required a return thereof and 
 have neglected to demand judgment for the return of the chattel as 
 they were authorized to do by section 117 of the Municipal Court Act 
 (Laws 1902, chap. 580), award possession of the chattels to the 
 defendants. If the final judgment improperly awards the defendants 
 possession of the chattel the Appellate Division has power to modify 
 such judgment on appeal. Levy v. Eohiceisner, 101 App. Div. 82. 
 
 Notes to section 126, "Action on Undertaking; when Maintain- 
 able." 
 
 Replevin. — Plaintiff permitted to recover damages though replevin 
 suit had been abandoned. Vera v. Constantine, N. Y. Law Journal, 
 November 24, 1902, Rasquin, J. (second district, borough of Queens), 
 sitting in the borough of Manhattan, second district. 
 
 Notes to section 137, "Action to foreclose a lien on a chattel, when 
 and in what courts maintainable." 
 
 See also notes to section 1, subdivision 10. 
 
 Boarding-house keeper. — The lien of a boarding-house keeper (Laws 
 1897, chap. 418, § 71, as amended Laws 1899, chap. 380) gives him 
 no lien on property brought upon the premises by a boarder nor any 
 right to detain it for board where the legal rights to both the title 
 and possession of the property were then in another, and this because 
 the true owner cannot under the Constitution be divested of his prop- 
 erty except by due process of law. Barnett v. ~\Yalker, 39 Misc. Rep. 323. 
 
 Parties to the foreclosure of a lien on chattels. — Where a mortgagee 
 of chattels, removed without consent by the mortgagor, after default 
 and demand to the premises of a storage company, sues that company 
 in this court under section 137 to foreclose his lien, the mortgagor must 
 be made a party defendant, as although she has lost all title and 
 right of possession by her default, she has a right of redemption which 
 may have a substantial value. Moreover, for the protection of other 
 interests, she should be made a party to the end that she may be bound 
 by the judgment. Fishel V. Hamilton Storage W. Co., 42 Misc. Rep. 532. 
 
 Notes to section 139, "Action on Conditional Sale Agreement." 
 
 Body execution. — No right to, where no order of arrest had issued in 
 action to foreclose a lien on a chattel where sale was conditional. 
 Teitelbaum v. Pisatilo, N. Y. Law Journal, February 6, 1903, Roesch, 
 J., borough of Manhattan, fourth district. 
 
 6
 
 S2 Action to Foreclose Liex. § 139. 
 
 Chattel mortgage; this section does not prevent chattel mortgagee 
 from taking possession under mortgage; when demand necessary in 
 conversion; mortgagee's possession under replevin not shown when 
 judgment-roll not in evidence and defective. — In an action for conver- 
 sion against a chattel mortgagee, alleged to have replevied the prop- 
 erty in violation of section 139 of the Municipal Court Act, which pro- 
 vides that no action can be maintained in said court on a chattel 
 mortgage except to foreclose the same: held, where the judgment-roll 
 in the alleged action of replevin returned on appeal was only marked 
 at trial for identification and was not put in evidence and is defective 
 in proof of service of summons and in that no writ of replevin is 
 attached, etc., the appellate court is bound by the record. There is 
 nothing to show that the property was taken on replevin. 
 
 Held, further, that as the chattel mortgage gave to the mortgagee a 
 right to enter, take away, and sell the goods, etc., there is nothing in 
 such record to show that defendant's possession was not rightfully 
 obtained under the mortgage. The aforesaid limitation of section 139 
 of the Municipal Court Act does not preclude a chattel mortgagee 
 from taking possession according to the terms of the mortgage. If the 
 taking of goods is lawful, it does not become unlawful without a sub- 
 sequent demand for compliance with the terms of the mortgage or a 
 demand with tender of amount due. Shelton v. Holzwasser, 46 Misc. 
 Rep. 76. 
 
 Conversion; an action for conversion, based on a breach of a written 
 contract for the conditional sale of personal property, will not lie. — 
 Section 139 of the act relating to the Municipal Court of the city of 
 New York (Laws 1902, chap. 580), which provides, "No action shall 
 be maintained in this court, which arises on a written contract of con- 
 ditional sale of personal property, where title is not to vest in the 
 person hiring until payment of a certain sum; or a chattel mortgage 
 made to secure the purchase price of chattels; except an action to 
 foreclose the lien, as provided in this article," limits the jurisdiction 
 of the court with respect to actions for a breach of a written contract 
 for the conditional sale of personal property, and a party having such 
 a cause of action cannot maintain an action in that court for the con- 
 version of such property on the ground that the cause of action is 
 for " an injury to property," within the meaning of subdivision 14 of 
 section 1 of the act. Samodwitz v. Karpf, 80 App. Div. 496. 
 
 Household goods, et cetera, no longer excluded; repeal. — Laws 1905, 
 chapter 503, has repealed section 115 of Laws 1897, chapter 418, as 
 amended by Laws 1898, chapter 354, and Laws 1904, chapters 259 and 
 698, which excluded from conditional sales agreements certain articles 
 such as household goods, pianos, organs, butcher's and meat market 
 tools and fixtures, coaches, hearses, carriages, buggies, phaetons, bi- 
 cycles, law books, and law-office supplies, etc., etc.
 
 § 140. Action to Foreclose Lien. 83 
 
 Jurisdiction; when the action is upon a chattel mortgage. — In an 
 action brought by plaintiff in this court to replevy a pool table, it 
 appeared that he sold it to the defendant and took back a chattel mort- 
 gage for the price, and that after defendant had defaulted thereon he 
 sold the pool table to the other defendant in the action. Section 139 
 provides that, " No action shall be maintained in this court which 
 arises on * * * a chattel mortgage made to secure the purchase 
 price of chattels; except an action to foreclose the lien, as provided in 
 this article. For the purpose of this section an instrument in writing 
 as above stated shall be deemed a lien on a chattel. * * *" 
 
 Held, that the action arose upon the breach of a chattel mortgage 
 made to secure the purchase price of chattels, within the meaning of 
 the statute, and that it was not maintainable in said court because it 
 was not the permissible action to foreclose the lien, but was an action 
 in which the plaintiff sought to recover as absolute owner after default. 
 Ginsburg v. De Silvestri, 42 Misc. Rep. 530. 
 
 When an action is not upon a chattel mortgage. — This court has 
 jurisdiction of an action brought by a chattel mortgagor against the 
 mortgagee for selling the mortgaged chattels by mistake after receiving 
 them back from her after default and agreeing to keep them for her 
 until she was financially able to take them again, as such an action 
 arises on the bailment to keep the chattels, and not on the chattel 
 mortgage, and therefore is not within the prohibition of section 139 
 of the Municipal Court Act (Laws 1902, chap. 580). Goodmcm V. 
 Banman, 43 Misc. Rep. 83. 
 
 § 140. Judgment; order of arrest; body execution. — In an 
 action of foreclosure, as provided in the last section, where 
 the sum or sums, over all payments and set-offs due and pay- 
 able by the terms of a written contract of conditional sale, 
 or upon the payment of which the title to hired personal 
 property vests, or secured by a chattel mortgage, amount to 
 more than one hundred dollars, the plaintiff may allege 
 that the defendant wilfully or maliciously disposed of or 
 concealed the property or a part thereof, covered by the in- 
 strument on which suit is instituted, in which case the court 
 may grant an order of arrest in the manner provided in 
 article one of this title, and upon such allegation being 
 proved on the trial, execution against the person shall issue, 
 if the provisions of this act relating to indorsement upon 
 the summons have been complied with, unless the property 
 awarded by the judgment is produced by the defendant to
 
 84 Pleadings. §§ 140-145. 
 
 satisfy the execution and levy, when made as provided in 
 this article. Upon judgment being rendered, as prescribed 
 in this article under the provisions of this or the last pre- 
 ceding section, and execution issuing thereon, the property 
 subject to levy must be produced or possession made readily 
 available at the time of such levy, to satisfy the execution 
 in the manner prescribed in the judgment, and on failure 
 so to do, where the plaintiff has recovered judgment for a 
 sum exceeding one hundred dollars, exclusive of costs, an 
 execution against the person shall issue, provided the pro- 
 visions of this act relating to indorsement upon the sum- 
 mons have been complied with, on the return of the marshal 
 having the execution made to the clerk of the court in the 
 district in which the judgment is docketed, to the effect that 
 such property is not available for levy and execution. (As 
 amended by Laws 1903, chap. 156, in effect April 8, 1903.) 
 
 Notes to section 140. 
 
 See also notes to section 139. 
 
 Foreclosure of lien on personal property. — In an action brought in 
 this court to foreclose a lien on personal property which the defendant 
 had maliciously and willfully disposed of, the court, under section 140 
 of the Municipal Court Act and section 1487 of the Code of Civil Pro- 
 cedure, construed in connection with section 20 of the Municipal Court 
 Act, has no power to enforce a judgment against the defendant by an 
 execution against the person, unless an order of arrest has been issued 
 in the action. Liederman v. Rooner, 82 App. Div. 541. 
 
 Instalment payments. — Action may be maintained to recover sum 
 or sums due on a conditional sale agreement, but no order of arrest 
 shall issue in such cases. Section 139, Municipal Court Act. 
 
 Notes to section 145, " Pleading on Joinder of Issue." 
 
 Bill of particulars. — The power of this court to order a bill of par- 
 ticulars is no longer governed by Code of Civil Procedure, section 2942, 
 but by section 145 of the Municipal Court Act of 1902, which section, 
 unlike the Code section, does not limit the time for making such an 
 order to the time of joining issue. Pough v. Cerimedo, 44 Misc. Rep. 
 246. 
 
 A bill of particulars is but an amplification of the complaint and 
 does not operate to change the nature of the cause of action set forth 
 in such complaint. The pleadings in an action brought in this court
 
 § 148. Pleadings. 85 
 
 against a street railroad company were oral. The complaint was " for 
 personal injuries," and, as amplified by the bill of particulars, alleged 
 that the plaintiff on a certain day boarded a car of the defendant and 
 tendered his fare and that the conductor refused to accept such fare, 
 and, without cause or provocation, assaulted the plaintiff and threw 
 him off the car, and that by reason of such misconduct the plaintiff 
 Avas injured. 
 
 Held, that the cause of action was for breach of contract and was 
 not for an assault within the meaning of section 1364 of the Greater 
 Neio York Charter. Hines v. Dry Dock, E. B. & B. R. R. Co., 75 App. 
 Div. 391. 
 
 Costs. — A verified pleading or written notice of appearance is neces- 
 sary to recover costs under section 332. Rice V. Hogan, 45 Misc. Rep. 
 400. 
 
 Default. — The provisions of section 145 do not necessitate a holding 
 that issue is joined when the defendant's default is taken. The opening 
 of the default left the parties to the action in exactly the same position 
 which they occupied before the return day of the summons, except in 
 so far as the opening of the default imposed conditions upon the de- 
 fendant. Levy v. Roossvn, 93 App. Div. 387. 
 
 Oral pleading; assumpsit; ex delicto; tort; wa'iver. — Where the plead- 
 ings are oral, but the return recites that the plaintiff " complained of 
 the defendant for damages of property," and the bill of particulars 
 reads, " Plaintiff claims damages in the sum of $150 on account of 
 the destruction and withholding of a set of plans, drawings, etc., rep- 
 resenting a mausoleum," the action will be deemed one in tort. 
 
 When the cause of action is ex delicto, the plaintiff may waive the 
 tort and sue in assumpsit. A plaintiff who has elected to sue in tort 
 cannot recover in assumpsit. Bermel v. Harnischfeger, 97 App. 
 Div. 402. 
 
 When issue not joined. — Where a defendant sued in this court upon a 
 verified complaint enters upon the return day an oral general denial, 
 he has not joined issue within subdivision 2 of section 145 of the 
 Municipal Court Act (Laws 1902, chap. 580), as that provision re- 
 quires him to file a verified answer where the complaint is verified. 
 Hinrichs v. Interuroan Street R. R. Co., 43 Misc. Rep. 654. 
 
 Notes to section 148, " Defendant May Offer to Allow Judgment 
 or Compromise." 
 
 Compromise. — No advantage can be taken of offers made by way of 
 compromise of a disputed claim. A party may, with impunity, attempt 
 to buy his peace. Tennent v. Dudley, 144 N. Y. 504, and cases cited, 
 reversing same case, 68 Hun, 225.
 
 86 Pleadings. §§ 149, 150. 
 
 Notes to section 149, "Complaint." 
 
 Refusing to pay wages of a judgment debtor. — A complaint in an 
 action brought under the authority of the last sentence of section 1391 
 of the Code of Civil Procedure, as amended by chapter 461 of the Laws 
 of 1903, against a person or corporation refusing to honor an execu- 
 tion issued against tue wages of a judgment debtor pursuant to that 
 section, is demurrable if it fails to allege that no prior similar execu- 
 tion against the judgment debtor is outstanding. 
 
 When a statute gives a new remedy and prescribes the requisite con- 
 ditions, or if an action of a certain character or against certain per- 
 sons be authorized only after the performance of certain conditions, it 
 is necessary to allege performance of these conditions. 
 
 A person seeking to maintain an action under a statute must state 
 every fact requisite to enable the court to judge whether he has a cause 
 of action under the statute. Rosenstock v. City of New York, 97 App. 
 Div. 337. 
 
 Notes to section 150, "Answer; What to Contain." 
 
 An assignment cannot be attacked on the ground of fraud under a 
 general denial. Midler v. Lese, 45 Misc. Rep. 638. 
 
 In an action upon an assigned claim for wages, the defendant may 
 not plead that the assignment was made to secure a usurious loan. 
 Union C. & I. Co. v. Union S. Y. <& M. Co., 46 Misc. Rep. 431. 
 
 Duress. — General allegations of duress are insufficient where there 
 is no allegation or proof of facts constituting duress. Harrington v. 
 City of New York, 40 Misc. Rep. 165. 
 
 Judgment for plaintiff on the pleadings, when proper. — In an aetion 
 by an attorney to recover the value of professional services and dis- 
 bursements, a judgment for the plaintiff on the pleadings is proper 
 when the answer fails to deny the employment, rendition of services, 
 their value, and the disbursements alleged to have been made. Pierce 
 X. Neiclin. 46 Misc. Rep. 122. 
 
 Negative pregnant. — An answer which simply denies in the precise 
 language of the complaint "that in the month of April. 1904, plain- 
 tiff did work, labor, and services, etc.," constitutes a negative pregnant 
 and must be construed to mean that plaintiff rendered the services at 
 some time other than as alleged, and the trial justice may treat the 
 allegations of the complaint as having been admitted. Levin & Meyer 
 Con. Co. v. Jackson, 46 Misc. Rep. 445. 
 
 New matter; counterclaim; sections of Code of Civil Procedure made 
 applicable. — Section 2938 of the Code of Civil Procedure, which provides 
 that the answer interposed in an action in a Justice's Court may set 
 forth " one or more defenses or counterclaims," must be construed in 
 connection with section 2945 of the Code of Civil Procedure, which
 
 §§ 157, 158. Pleadings. 87 
 
 makes sections 501 and 502 of such Code applicable to counterclaims 
 interposed in actions commenced in Justices' Courts. 
 
 It was not the intention of the Legislature, when making section 
 2938 of the Code of Civil Procedure applicable to the Municipal Court 
 of the city of New York and omitting to make section 2945 applicable 
 thereto, to allow any new matter constituting a counterclaim to be set 
 up in an answer interposed therein, but only new matter constituting 
 a counterclaim as that term is defined in sections 501 and 502. Lundine 
 V. Callaghan, 82 App. Div. 621. 
 
 Office address or place of business. — The defendant filed a verified 
 answer signed "Anna K. Daniel, Defendant in person." Her office ad- 
 dress or place of business was not added. Held, such omission is a 
 mere irregularity and does not vitiate the answer or its service. 
 Semble, that plaintiff could have moved to set aside the answer speci- 
 fying the grounds, and the same might have then been amended with- 
 out injustice to either party. Heidetiheimer v. Daniel, 45 Misc. Rep. 
 385. 
 
 Payment is an affirmative defense; it must be pleaded. — Where the 
 answer interposed in an action contains no plea of payment or partial 
 payment, the defendant is not entitled to show that the plaintiff has 
 been paid on account of his claim a greater sum than the amount which 
 the plaintiff admits in his complaint has been paid. Payment is an 
 affirmative defense which must be specially pleaded, and, in the ab- 
 sence of such a special plea, evidence thereof is not admissible under 
 a general denial. Rogers v. Simonson & Son Co., 45 Misc. Rep. 323. 
 
 Usury; personal defense. — In an action upon an assigned claim for 
 wages, the defendant may not plead that the assignment was made to 
 secure a usurious loan. Union C. <& I. Co. v. Union 8. Y. & M. Co., 
 46 Misc. Rep. 431. 
 
 In this State a usurious contract is not void per se, but merely 
 voidable at the option of the borrower or those in privity with him. 
 Williams V. Tilt, 36 N". Y. 319; Chapuis v. Mathot, 91 Hun, 565. 
 
 Notes to section 157, "Counterclaim where Amount is in Excess 
 of Court's Jurisdiction." 
 
 Appeal. — Quaere, whether the objection that this court did not have 
 jurisdiction of a counterclaim for an amount in excess of $500 can 
 be successfully urged for the first time upon an appeal from a judgment 
 sustaining the counterclaim. Lifshitz v. McConnell, 80 App. Div. 289. 
 
 Notes to section 158, subdivision 6, "When Defendant May 
 
 Demur." 
 
 Copartnership; all the partners must be made parties defendant; the 
 defect of parties need not be pleaded where one partner is sued and 
 no mention is made of the copartnership; practice. — In an action to
 
 88 Pleadings §§ 165-171. 
 
 recover the value of goods sold and delivered to a copartnership, all 
 of the partners must be made defendants. Where such an action is 
 brought in this court against but one of the partners, and the com- 
 plaint therein makes no mention of any partnership, the failure to 
 plead the nonjoinder of the other partners does not preclude the de- 
 ft ndant from raising that objection on the trial. Semble, that in this 
 court the defense of a nonjoinder of parties must ordinarily be raised 
 by answer or it will be deemed to have been waived. Sparks v. 
 Fogarty, 93 App. Div. 472. 
 
 Notes to section 165, "Exhibition of Accounts at Instance of 
 Adverse Party May be Ordered." 
 
 Power of court; justice; examination of books. — The authority con- 
 tained in section 165 of the Municipal Court Act for ordering the ex- 
 hibition of a writing or account declared on is conferred upon the court 
 and not upon a justice thereof. The section does not authorize the 
 examination of books as by a bill of discovery. Matter of Bolte, 97 
 App. Div. 551, 552. 
 
 Notes to section 166, "Amendment of Pleadings." 
 
 Changing cause of action. — When, after a trial on a complaint for use 
 and occupation of premises by defendant in maintaining telephone wires 
 on the roof, the plaintiff is allowed to amend by substituting trespass 
 as his cause of action and the case is retried after an adjournment and 
 before a new jury upon the new issue, the allowance of such amendment 
 is not reversible error but is in furtherance of justice. In such action 
 the rental value of the use of the building for stringing wires is a 
 proper measure of damages and it is for the jury to say what that 
 fair and reasonable rental value is. Bunke v. New York Telephone 
 Co., 46 Misc. Rep. 97, 98. 
 
 Notes to section 170, " Pleadings to be Liberally Construed." 
 
 When judgment for plaintiff on the pleadings proper. — In an action 
 by an attorney to recover the value of professional services and dis- 
 bursements a judgment for the plaintiff on the pleadings is proper 
 when the answer fails to deny the employment, rendition of services, 
 their value and the disbursements alleged to have been made. Pierce 
 V. Newlin, 46 Misc. Rep. 122. 
 
 Notes to section 171, " Immaterial Variance in Pleading to be Dis- 
 regarded." 
 
 Quantum meruit and express contract. — Where the complaint in an 
 action in this court to recover for work done and materials furnished 
 is framed upon a quantum meruit, while the proof establishes the ex- 
 istence of an express contract, the court may, under section 2943 of
 
 §§ 179-187. Pleadings. 89 
 
 the Code of Civil Procedure, which is applicable to this court, disregard 
 the variance, unless it is satisfied that the defendant has been misled 
 to his prejudice thereby. Lundine v. Callaghan, 82 App. Div. 621. 
 
 Notes to section 179, "Answer of Title." 
 
 Summary removal from land of a squatter; this court is not ousted 
 of jurisdiction by a question of title raised collaterally; the provisions 
 of the Code of Civil Procedure as to the removal of an action where the 
 title to real property is involved is not applicable; amendment of tech- 
 nical errors in pleading. — The fact that the question of title is raised 
 collaterally, in a proceeding instituted in the Municipal Court of the 
 city of New York under subdivision 4 of section 2232 of the Code of 
 Civil Procedure for the summary removal of an alleged squatter from 
 land claimed to be owned by the petitioner does not serve to oust the 
 Municipal Court of jurisdiction. 
 
 The real issue involved in the proceeding is as to the right to the 
 possession of the premises, and the provisions of the Code of Civil 
 Procedure requiring the removal of an action brought in a Justice's or 
 Municipal Court, where the determination of title to real estate is 
 involved, have no application to such a proceeding. Where the denials 
 contained in the answers interposed in such a proceeding are objection- 
 able in form because of the violation of a technical rule of pleading, 
 but are not misleading, the party interposing such an answer should 
 be permitted to amend the same. Van Deventer v. Foster, 87 App. 
 Div. 62. 
 
 (The law for removal of an action was repealed by Laws 1904, chap. 
 598.) 
 
 Notes to section 184, "Title Appearing from Plaintiff's Own 
 
 Showing." 
 
 Title to real property; when it is not in question. — The fact that 
 upon the trial of an action to recover moneys deposited by the plaintiff 
 under a contract, by which the defendant agreed to sell to him certain 
 real estate, it is conceded that the defendant was unable to perform 
 the contract of sale because an adjoining building encroached upon the 
 property contracted to be sold from two to four inches, does not bring 
 the case within the terms of section 184 of the Municipal Court Act 
 (Laws 1902, chap. 580) which requires • the court to dismiss the 
 complaint, where it appears upon the trial, by the plaintiff's own 
 showing, that the title to real property is in question and that the 
 title is disputed by the defendant. Elinsky v. Berger, 87 App. Div. 584. 
 
 Notes to section 187, " Interpleader by Order in Certain Cases." 
 
 See also section 115a, "third party may interplead and defend." 
 Interpleader; when permitted. — The Municipal Court Act, section 187, 
 permits an interpleader only in an action on contract, or to recover a
 
 90 Adjournments; Trial. §§ 194-230. 
 
 chattel; hence, where a defendant has been interpleaded in an action 
 for conversion and the original defendant is released by plaintiff, the 
 court is ousted as to jurisdiction as to both. Semble, an assignment 
 cannot be attacked on the ground of fraud under a general denial. 
 Midler v. Lese, 45 Misc. Rep. G38. 
 
 Notes to section 194, "Adjournment Longer than Eight Days; 
 Undertaking." 
 
 Justification of sureties. — "While this section makes no provision for 
 the justification of sureties the power to require the same is derived 
 by this court through section 20 of this act, in accordance with section 
 811 of the Code of Civil Procedure and Rule 5 of the Supreme Court. 
 Siegel v. Trivers, N. Y. Law Journal, September 14, 1903, Bennet. J., 
 borough of Manhattan, twelfth district, sitting in the thirteenth district. 
 
 Notes to section 230, " Issue of Fact and Law; Judgment within 
 What Time to be Rendered." 
 
 Bias or prejudice of justice. — It has been held by Mr. Justice O'Gor- 
 man in People ex rel. Devery v. Jerome (N. Y. Law Journal of Novem- 
 ber 12, 1901), and Mr. Justice Clarke in People ex rel. Stein v. Brawn 
 (N. Y. Law Journal of December 3, 1902), that a writ of prohibition 
 against a magistrate to prevent his trying a case because of his bias 
 or prejudice will not lie. 
 
 Decision of another justice. — One judge cannot, upon mere motion, 
 set aside the decision of another judge, upon allegations that the latter 
 had erred as to any of the questions submitted to his determination. 
 People v. National Trust Co., 31 Hun, 26. 
 
 Duty of justice to decide case within fourteen days of its final sub- 
 mission; waiver. — Where the record in an action tried in this court on 
 November 19, 1903, states, after the words, " case closed," that the case 
 is " deemed submitted as of November 27, 1903," and there is nothing 
 to show that either side objected thereto, the parties must be deemed to 
 have consented to extend the time for final submission to the latter date 
 and a decision rendered within fourteen days thereof is valid. Bastable 
 V. Cuba Supply Co., 43 Misc. Rep. 89. 
 
 Judgment for plaintiff on the pleadings, when proper. — In an action 
 by an attorney to recover the value of professional services and dis- 
 bursements a judgment for the plaintiff on the pleadings is proper 
 when the answer fails to deny the employment, rendition of services, 
 their value and the disbursements alleged to have been made. Pierce 
 v. Neiolin, 46 Misc. Rep. 122. 
 
 Jurisdiction is lost by the justice unless he files his decision within 
 fourteen days. Van Valis v. Charonca, 40 Misc. Rep. 226. See also 
 Pennimnn v. La Grange, 23 Misc. Rep. 121; Wallace v. Harris, 40 Misc. 
 Rep. 216; Lambert v. Solomon, 28 App. Div. 562.
 
 § 231. Trial; Trial Jurors. 91 
 
 Reviewing decision of another justice; exception to the rule. — The 
 rule that one justice of the Municipal Court of the city of New York 
 cannot review the decision of another justice of that court does not 
 apply to a case where, after the defendant's motion to open his default 
 has been denied, as he alleges, upon affidavits surreptitiously handed 
 to the justice by or for the plaintiff after the argument of the motion 
 and because of the justice's misconception that the defendant had paid 
 the judgment voluntarily, the defendant applies, without leave from 
 that justice, for leave to reargue and for a reargument of the motion 
 to another justice brought, within eighteen days, into the Municipal 
 Court district by the system of rotation in the assignment of its 
 justices, who granted a reargument and also vacated the order of the 
 first justice denying the motion to open the default — as the motion 
 before the incoming justice is under the circumstances to be deemed 
 practically a separate motion made on different or additional facts. 
 Stromberg v. Di Salvo, 38 Misc. Rep. 139. See People V. National Trust 
 Co., 31 Hun, 26. 
 
 Vacating this court's void judgment; the order is appealable; the 
 appellate court is concluded by the return; it cannot consider state- 
 ments in contravention thereof in the brief of counsel. — Where a justice 
 of this court renders judgment in a case tried before him, which judg- 
 ment is void because it was not rendered within the fourteen days pre- 
 scribed by section 230 of the Municipal Court Act (Laws 1902, chap. 
 580), the justice has power, under section 254 of that act, to make an 
 order vacating such judgment. Such order is appealable to the Appel- 
 late Division under section 257 of the Municipal Court Act. Upon 
 such an appeal the court is bound by the contents of the return made 
 by the justice, and cannot consider statements in the appellant's brief, 
 not supported by the return, tending to show that the judgment was 
 rendered within the statutory time. Stem v. Fleck, 102 App. Div. 272. 
 
 Notes to section 231, "Trial by Jury; Drawing the Jury." 
 
 Demand for jury trial after judgment by default has been opened is 
 sufficient. — In an action brought by an attorney and counsellor-at-law 
 to recover the value of professional services rendered by him to the 
 defendant, the latter suffered judgment to be taken against him by 
 default. Thereafter the default was opened upon the condition, among 
 others, that an answer should be filed on or before November 6, 1903. 
 
 When this direction was made, the counsel for the defendant asked 
 for a jury trial and offered to pay the clerk for a venire. The applica- 
 tion was denied by the court. The defendant filed his answer on 
 November 6, 1903, and renewed his motion for a jury trial and his 
 tender, but the application was again denied. Held, that under section 
 231 of the New York Municipal Court Act (Laws 1902, chap. 580), 
 which provides: "At any time when an issue of fact is joined, either
 
 92 Trial; Trial Jurors. §§ 233-239. 
 
 party may demand a trial by jury, and unless so demanded at the 
 joining of issue, a jury trial is waived," the defendant's application 
 lor a jury trial should have been granted; that the provision of sec- 
 tion 145 of the Municipal Court Act that issue in certain cases must 
 be joined on the return day of the summons, except as otherwise spe- 
 cially prescribed in the statute, did not necessitate a holding that 
 issue was joined in the case at bar when the defendant's default was 
 taken; that the opening of the default left the parties to the action 
 in exactly the same position which they occupied before the return 
 day of the summons, except in so far as the order opening the default 
 imposed conditions upon the defendant. Levy v. Roossin, 93 App. 
 Div. 387. 
 
 Penalty for misconduct of officers at drawing of jurors and the forma- 
 tion of a jury. See Penal Code, § 76, as amended by Laws 1905, 
 chap. 692. 
 
 Right and waiver of jury trial. — Where the plaintiff has demanded a 
 jury trial and subsequently waived the jury, owing to repeated technical 
 objections to the array interposed by the defendant such defendant is 
 still entitled to demand a jury trial and it is reversible error for the 
 court to deny such application and proceed with the trial if the de- 
 fendant offers to pay the fee for another panel. Both parties have 
 a right to a jury trial in said court and such trial is only waived 
 when neither party makes "a demand therefor. The plaintiff, by waiv- 
 right. Section 231 of the Municipal Court Act does not require both 
 parties to demand a jury trial in order to secure the rights of both 
 thereto. Sherwood v. New York Telephone Co., 46 Misc. Rep. 102. 
 
 Notes to section 233, "Trial Jurors; List of, to be Furnished 
 Clerk of Each District." 
 
 Exemption from jury duty. — A professor or teacher in a college or 
 academy, or an editor, editorial writer, artist, or reporter of a daily 
 newspaper or press association regularly employed as such and not 
 following any other vocation. Code Civ. Proc, § 1030, as amended by 
 Laws 1905, chap. 437, to go in effect September 1, 1905. 
 
 Also teacher in public school. Code Civ. Proc, § 1081, as amended 
 by Laws 1905, chap. 437, to go in effect September 1, 1905. 
 
 Also teacher in a private school. Code Civ. Proc, § 1127, subd. 4, 
 as amended by Laws 1905, chap. 437, to go into effect September 1, 1905. 
 
 Notes to section 239, "Verdict; Requisites." 
 
 Entering judgment on verdict. — The provision of section 239 of the 
 Municipal Court Act (Laws 1902, chap. 580) that judgment "must be 
 entered thereon (on a verdict) immediately after the rendering of the 
 verdict," is directory merely, and a party cannot be deprived of the
 
 § 240. Trial; Trial Jurors. 93 
 
 benefit of his verdict by the justice's delay or refusal to render the 
 judgment. Lyons v. Gavin, 43 Misc. Rep. 659. 
 
 Sufficiency of a verdict rendered " for the plaintiffs " but not for a 
 specific sum. — A verdict rendered by a jury in an action tried in the 
 Municipal Court of the city of New York to recover on four promissory 
 notes of the same account, date, and parties and which came into the 
 plaintiffs' possession at the same time and under the same circum- 
 stances, in the form " the jury, upon its return, renders a verdict for 
 the plaintiffs," sufficiently conforms to the requirement of Laws 1902, 
 chapter 580, section 239, that a verdict in said court " must be general 
 for the plaintiff for a specific sum,'' to require the appellate court to 
 allow it to stand where no question as to the form of the verdict was 
 raised on the trial and where there was then no dispute as to the 
 amount the plaintiffs were entitled to recover, if they were entitled to 
 recover at all. Steinhart v. Enteen, 43 Misc. Rep. 388, 389. 
 
 Notes to section 240, " Conduct of Trial." 
 
 Carrier's failure to maice delivery within reasonable time; when proof 
 of notice to consignee of arrival of goods sufficient. — The clerk of the 
 defendant carrier mailed a notice of arrival of goods to plaintiff's 
 assignor. Such notice was returned to clerk by parties to whom it had 
 been delivered by mistake. Said clerk immediately mailed another 
 notice to plaintiff's assignor which was not returned. Thereafter a 
 third notice was sent which resulted in the delivery of the goods. 
 Held, judgment for plaintiff should be reversed and a new trial granted. 
 Plaintiff was aware of the custom of carriers to give notice by mail; 
 and the plaintiff's bookkeeper, the only witness as to lack of notice, 
 was uncorroborated by any member of the firm of plaintiff's assignor. 
 Friedman v. Metropolitan SS. Co., 45 Misc. Rep. 383. 
 
 Carrier's liability for value of freight destroyed by fire; whether place 
 of delivery is determined by address on package or that stated in bill 
 of lading; custom not admissible to vary terms of contract. — Freight 
 shipped by plaintiff was destroyed by fire on the defendant carrier's 
 premises. Defendant gave testimony as to attempted delivery and that 
 the consignee's address in the bill of lading and on the package differed. 
 
 Held, that the rights of the carrier and shipper " are controlled by a 
 contract in writing delivered to the shipper by the carrier at the time 
 of the receipt of the property. The admission of evidence of custom 
 to contradict the express or implied terms of a contract is error. 
 Cappel v. Weir, 45 Misc. Rep. 419. 
 
 Carrier's receipt for goods construed; proof necessary to establish 
 negligence. — A bill of lading, which states that the goods were received 
 by the carrier " in apparent good order * * * contents and con- 
 dition and contents of package unknown," is no acknowledgment by the 
 carrier that the goods were received in good condition. To charge a
 
 94 Trial; Trial Jurors. § 240. 
 
 carrier with negligence it is necessary to show the condition of the 
 goods at place of shipment. Mere proof of delivery by carrier in an 
 injured condition is not enough. Jean, Garrison & Co. v. Flagg, 45 
 Misc. Rep. 421. 
 
 Challenges to jurors. — § 1179, Code Civil Procedure. In an action in 
 a court of record, or not of record, wherein a city, town, or county is 
 a party, it is not a good cause of challenge to a trial juror, or to an 
 officer who notified the trial jurors, that the juror or the officer is a 
 resident of, or liable to pay taxes in the city, town, or county, which 
 is a party to such action. (.4s amended by Laws 1903, chap. 294.) 
 
 Collision; when question of negligence for the jury. — Plaintiff's wagon 
 being driven diagonally across defendant's track was struck and injured 
 by defendant's car running in the same direction. It was shown that 
 the driver had looked behind him before he left the curb and saw the 
 car some distance to the rear moving at a moderate rate of speed. It 
 was also shown that in order to cross the tracks the defendant's wagon 
 would only have had to travel a distance of from twenty to fifty feet. 
 There was also evidence that the motorman failed to ring a bell. 
 
 Held, under the circumstances, the question of negligence was one 
 of fact for the jury, not one of law. New York Bread Co. V. New York 
 City R. Co., 46 Misc. Rep. 89. 
 
 Compromise. — No advantage can be taken of offers made by way of 
 compromise of a disputed claim. A party may, with impunity, attempt 
 to buy his peace. Tennent V. Dudley, 144 N. Y. 504, and cases cited; 
 revg. S. C, 68 Hun, 225. 
 
 Counsel and judge in examination of witness. — While it is often 
 proper and advisable for a trial judge to interrogate a witness for the 
 purpose of making the evidence clear upon a point, as to which it has 
 been left obscure or confused, or to bring out material facts apparently 
 within the knowledge of the witness and overlooked by counsel, this 
 may ordinarily be done by very few questions, and, in the main, the 
 counsel should be left to conduct the examination. People V. Hackett, 
 82 App. Div. 86. 
 
 Discussion or a remark by a judge in the course of a judicial opinion 
 should not be deemed obiter, when it is germane to the point under 
 discussion, even though it may not be absolutely essential to the deci- 
 sion. Miller V. Baltimore & Ohio R. R. Co., 89 App. Div. 458. 
 
 Expert witnesses; credibility of, is to be determined by the jury. — 
 A judge presiding at a jury trial, after two duly qualified expert wit- 
 nesses had testified upon the subject of the plaintiff's damages, said: 
 " There is no use calling more witnesses like these. I do not believe 
 them;" and directed a verdict for nominal damages for the plaintiff. 
 
 Held, that such action on the part of the court required a reversal 
 of the judgment, as the credibility of the expert witnesses was for the 
 jury and not for the court to pass upon. Byerrum V. Springfield 
 Breweries Co., 83 App. Div. 172.
 
 § 240. Trial; Trial Jurors. 95 
 
 Discontinuance upon payment of costs; leave refused a plaintiff where 
 granting it might possibly give him an unfair advantage. — A plaintiff 
 brought an action in the Municipal Court of the city of New York for 
 a sum greater than $250 and that action was, at the instance of the 
 defendant, removed to the City Court of said city under Laws 1902, 
 chapter 5S0, section 3, upon the ground that the damages claimed ex- 
 ceeded $250. Afterward the plaintiff brought a second action in the 
 Municipal Court, on the same claim, for $249, and thereafter asked of, 
 but was refused by the City Court, leave to discontinue the first action 
 on payment of costs. Held, that leave to discontinue the City Court 
 action was properly refused as the conduct of the plaintiff indicated 
 a determination to try the case in the Municipal Court and justified a 
 suspicion that this determination rested upon the belief, ill-founded if 
 entertained, that the defendant would be at greater disadvantage in 
 that court than in the City Court. Finkelstein v. Meenan, 43 Misc. 
 Rep. 376. 
 
 (The law for removal of an action was repealed by Laws 1904, chap. 
 598.) 
 
 Money had and received by defendant's agent; acceptance by plain- 
 tiff or agent's check for surplus payment, does not discharge defend- 
 ant; demand. — Plaintiff's assignor, owing defendant $750, gave a check 
 for $900 to defendant's agent and took from said agent his personal 
 check for the balance. The agent's check being dishonored, plaintiff 
 sued defendant. Held, as defendant received plaintiff's assignor's check, 
 with knowledge that it was excessive in amount, and credited its agent 
 with the amount stated by him to have been repaid, it is the same as 
 if plaintiff's assignor had paid the amount to the defendant. That 
 when the agent's check was dishonored, the demand against the defend- 
 ant still subsisted; that defendant's reliance on its agent's statement 
 that the excess was repaid was at its own risk. Rines v. New York & 
 Brooklyn Brewing Co., 45 Misc. Rep. 415. 
 
 Payment is an affirmative defense; it must be pleaded. — Where the 
 answer interposed in an action contains no plea of payment or partial 
 payment the defendant is not entitled to show that the plaintiff has 
 been paid on account of his claim a greater sum than the amount which 
 the plaintiff admits in his complaint has been paid. Payment is an 
 affirmative defense which must be specially pleaded, and, in the absence 
 of such a special plea, evidence thereof is not admissible under a gen- 
 eral denial. Rogers v. Simonson- cC- Son Co., 45 Misc. Eep. 323. 
 
 Pleading as evidence. — It is not necessary to introduce a pleading in 
 evidence as it is always before the court, and its admission binds the 
 parties without its formal introduction as evidence. Briggs v. Weeks, 
 98 App. Div. 487. 
 
 Title in third person to chattel. — Where the defendants set up in 
 their answer title in a third person, they may call such third person 
 as a witness, irrespective of the fact that the third person did not
 
 96 Judgments. § 248. 
 
 avail himself of the provisions of section 115a of the Municipal Court 
 Act authorizing a third party claiming title to the chattel to inter- 
 plead and defend. In such a case the omission of the defendants to 
 demand judgment for a return of the chattel does not preclude them 
 from maintaining a subsequent action to regain possession of the 
 chattel, subordinate to the title of the third person. Section 115a of 
 the Municipal Com t Act does not affect or limit section 117 of that 
 act. Levy v. Hohweisner, 101 App. Div. 82. 
 
 Summary proceedings. — 'Where the denials contained in the answers 
 interposed in such a proceeding are objectionable in form because of 
 the violation of a technical rule of pleading, but are not misleading, 
 the party interposing such an answer should be permitted to amend 
 the same. Van Deventer v. Foster, 87 App. Div. 62. 
 
 Value. — "Where the identity of goods is lost, their agreed cost price 
 is evidence of their value. Goodman v. Bauman, 43 Misc. Rep. 83. 
 
 Notes to section 248, " Nonsuit; when Authorized." 
 
 See also notes to sections 26, 330, and 332. 
 
 Costs to defendant upon voluntary discontinuance by plaintiff; inter- 
 pretation of sections 248 and 332, Municipal Court Act. — Blum v. 
 0' Conner, N. Y. Law Journal, July 1, 1903, Supreme Court, Appellate 
 Term, June, 1903, opinion by Fkeedman, P. J. This case is not reported 
 elsewhere. See also Barry v. Winkle, 36 Misc. Rep. 171; Levine V. 
 Hahner, 62 App. Div. 195; McCuskie v. Eendrickson, 125 N. Y. 555. 
 
 Costs on discontinuance of summary proceedings. — Where a land- 
 lord voluntarily discontinues before final submission summary pro- 
 ceedings taken by him in the Municipal Court of the city of New York 
 since the passage of Laws 1902, chapter 580, the tenant is entitled as 
 costs to his actual disbursements to the extent of $10 besides the fees 
 of any witnesses attending from another county, and this under Code 
 Civil Procedure, section 3076, subdivision 2. Cohen v. Melle, 43 Misc. 
 Rep. 79. 
 
 Erroneous judgment. — A plaintiff who does not prove his case in this 
 court should be nonsuited, but it is erroneous for the court to render a 
 judgment for defendant. The Egyptian Flag Cigarette Co. v. Comisky, 
 40 Misc. Rep. 236. 
 
 Leave to discontinue refused a plaintiff where granting it might pos- 
 sibly give him an unfair advantage. — A plaintiff brought an action in 
 this court for a sum greater than $250, and that action was, at the 
 instance of the defendant, removed to the City Court of said city under 
 Laws 1902, chapter 580, section 3, upon the ground that the damages 
 claimed exceeded $250. Afterward the plaintiff brought a second action 
 in the Municipal Court, on the same claim, for $249, and thereafter 
 asked of, but was refused by the City Court, leave to discontinue the 
 first action on payment of costs. Held, that leave to discontinue the 
 City Court action was properly refused as the conduct of the plaintiff
 
 §§ 249, 250. Judgments. 97 
 
 indicated a determination to try the case in the Municipal Court and 
 justified a suspicion that this determination rested upon the belief, 
 ill-founded if entertained, that the defendant would be at greater dis- 
 advantage in that court than in the City Court. Finkclstein v. Meenan, 
 43 Misc. Rep. 376. 
 
 (The law for removal of an action was repealed by Laws 1904, chap. 
 548.) 
 
 Right to discontinue on payment of costs. — A plaintiff has an abso- 
 lute right to discontinue an action, brought in this court, at any time 
 before it is finally submitted upon payment of costs, and this although 
 the defendant has interposed a counterclaim. The Municipal Court 
 Act (Laws 1902, chap. 580) has made no change in this respect. 
 Nichols v. Williams, 42 Misc. Rep. 527. 
 
 Notes to section 249," Judgment of Dismissal on Merits; when." 
 
 Close of case. — An action in this court may be dismissed on the 
 merits with costs where, at the close of the whole case, the court is of 
 the opinion that the plaintiff is not entitled to recover as matter of law. 
 
 The record should, however, show that both parties had rested when 
 the motion for a dismissal was made. Cohen v. Boccuzzi, 42 Misc. 
 Rep. 544. 
 
 Judgment; when it is on the merits; motion to amend it; when a 
 defendant is entitled to costs. — Where the defendant in an action to 
 recover the contract price of certain work, which, by the terms of the 
 contract, was to be completed on or before August 18, 1903, denies that 
 the work has ever been completed according to the contract, and inter- 
 poses a counterclaim for damages incident to the work, and the justice 
 before whom the case was tried without a jury renders a decision 
 " Dismissing the complaint on the ground this action is prematurely 
 brought, the work not being completed according to the contract, and 
 judgment for the defendant on the counterclaim for the sum of $25, 
 without costs," such judgment operates as a dismissal of the complaint 
 upon the merits. In such a case the defendant is entitled, under sub- 
 divisions 2 and 5 of section 332 of chapter 580 of the Laws of 1902, 
 the Municipal Court Act, to $15 costs. Reugamer v. Cieslinskie, 104 
 App. Div. 135. 
 
 Notes to section 250, "Judgment; when Sum Exceeds Jurisdic- 
 tion." 
 
 Jurisdiction; amount involved; remission of excess. — Where both the 
 summons and the complaint in an action commenced in this court 
 demand judgment for $500 and interest, a denial of a motion to dis- 
 miss the complaint upon the ground of want of jurisdiction is rever- 
 sible error. The provision of section 250 of the Municipal Court Act, 
 permitting a part} 7 to remit the excess if the sum found due " exceeds 
 
 7
 
 98 Judgments. §§ 251-253. 
 
 the sum for which the court is authorized to enter judgment," applies 
 only to cases where said court has acquired jurisdiction in the first 
 instance. Smith v. Dunn, 46 Misc. Rep. 475. 
 
 Remitting excess. — Plaintiff sued to recover $507.33, and recovered 
 $294.37, which included damages and costs. Held, it was improper to 
 reverse the judgment because the plaintiff sued for a greater amount 
 than $500, as he was at liberty under this section to remit the excess 
 over $500. Hamburger v. Hellman, 103 App. Div. 263. 
 
 Notes to section 251, "Judgment where Defendant Liable to 
 
 Arrest." 
 
 Execution must be issued; when; discharge. — Plaintiff obtained an 
 order of arrest, recovered judgment, but failed to issue execution before 
 the expiration of twenty-four hours after he obtained the judgment, 
 held that defendant, although out on bail, is entitled to be discharged 
 under section 68. Held, also, that such discharge does not defeat plain- 
 tiff's right to the subsequent issue of a body execution upon the judg- 
 ment under section 271. Rogoio v. Clark, 40 Misc. Rep. 208. 
 
 Notes to section 253, " Court May Open Default." 
 
 See also section 256, "Court May Impose Conditions, etc." 
 
 Judgment by default is appealable. — Defendant may appeal from 
 judgment taken against herby default, but is prohibited by section 257 
 from an appeal from an order opening the default. Lang B. P. Co. v. 
 Crossly, 40 Misc. Rep. 249. 
 
 Judgment by default is not appealable. — The Municipal Court Act 
 (Laws 1902, chap. 580) contains no provision permitting an appeal 
 from a judgment taken by default in an action in the Municipal Court 
 of the city of New York, and such an appeal is no longer permissible. 
 
 A defendant, who has appeared in the action, but who has defaulted 
 in answering, who desires a review of an order denying vacation of an 
 attachment issued in the action against his property must first have 
 his default opened. Broicn V. Bouse, 43 Misc. Rep. 72. 
 
 Jury trial may be demanded after a default has been opened. Levy 
 V. Roossin, 93 App. Div. 387. 
 
 Order by the court. — Section 253 of the Municipal Court Act, au- 
 thorizing the opening of defaults or omissions on such notice as the 
 court may direct, contemplates an order by the court in which the 
 default was taken. Matter of Bolte, 97 App. Div. 551, 552. 
 
 Restoring case to calendar. — Where certain cases in this court were 
 dismissed for nonappearance of either party within the time required, 
 the justice had no authority to restore the causes to the calendar and 
 proceed to the trial thereof, except by defendant's express consent or 
 by his voluntary appearance without objection after service of a notice 
 of motion on him for reinstatement. Eichner v. Cohen, 91 N. Y. Supp. 
 357.
 
 § 254. Judgments. 99 
 
 Reviewing decision of another justice; exception to the rule.— The 
 rule that one justice of this court cannot review the decision of another 
 justice does not apply to a case where, after the defendant's motion 
 to open his default has been denied, as he alleges, upon affidavits sur- 
 reptitiously handed to the justice by or for the plaintiff after the argu- 
 ment of the motion and because of the justice's misconception that 
 the defendant had paid the judgment voluntarily, the defendant ap- 
 plies, without leave from that justice, for leave to reargue and for a 
 reargument of the motion to another justice brought, within eighteen 
 days, into the Municipal Court district by the system of rotation in 
 the assignment of its justices, who granted a reargument and also 
 vacated the order of the first justice denying the motion to open the 
 default — as the motion before the incoming justice is under the cir- 
 cumstances to be deemed practically a separate motion made on different 
 or additional facts. Stromberg v. Di Salvo, 38 Misc. Rep. 139. 
 
 Setting case down for trial. — An order opening a plaintiff's default in 
 this court may lawfully provide that the case be set down for trial 
 upon a day certain. Horowitz v. Fuchs, 39 Misc. Rep. 344. 
 
 Notes to section 254, " Motion to Set Aside Verdict, or Vacate, 
 or Amend Judgment." 
 
 Costs; where a verdict is set aside as against the weight of evidence. 
 — The question whether a judge presiding at a jury trial shall impose 
 costs as a condition of setting aside a verdict on the ground that it is 
 against the weight of evidence is a matter which rests in his sound 
 discretion. Lashaway v. Young, 76 App. Div. 177. 
 
 Expiration of judge's term; successor may determine motion. — An 
 order vacating a judgment of this court made by a justice of said court 
 after the expiration of his term of office is a nullity. Under the pro- 
 visions of section 16 of the Municipal Court Act, read in conjunction 
 with section 254, a motion to set aside a judgment of said court and 
 for a new trial, pending before and undecided by a justice thereof at 
 the expiration of his term of office, may be heard and determined by 
 his successsor in office. Gordon v. Trainor, 46 Misc. Rep. 439. 
 
 Supplementary proceedings on a judgment recovered in this court, a 
 transcript of which was docketed in the county clerk's office; the Su- 
 preme Court may set them aside, but cannot vacate the judgment. — 
 Where a transcript of a judgment recovered by default in the Municipal 
 Court of the city of New York, for the borough of Brooklyn, is dock- 
 eted in the office of the clerk of the county of Kings, under section 1369 
 of the Greater New York Charter (Laws of 1897, chap. 378) and sec- 
 tions 3017 and 3220 of the Code of Civil Procedure, and, after the return 
 of an execution unsatisfied, supplementary proceedings are instituted 
 thereunder, the Supreme Court is without jurisdiction to vacate the 
 judgment on the ground that the judgment debtor had never been
 
 100 Judgments § 256. 
 
 served with the summons and complaint. The Supreme Court has 
 jurisdiction, however, to stay or set aside the execution and the sup- 
 plementary proceedings, as those matters flowed out of the filing of 
 the transcript and of the docketing of the judgment. Johnson v. 
 Manning, Xo. 1, 75 App. Div. 285. 
 
 Time of making motion to set aside judgment. — A motion to set 
 aside a judgment rendered in this court dismissing the complaint, if 
 not made at the close of the trial, must be actually made within five 
 days from the time the judgment was rendered and upon two days' 
 notice, and it is not a sufficient compliance with the Municipal Court 
 Act (Laws 1902, chap. 580, § 254) that the notice of motion was given 
 within the five days. A notice of motion is distinct from the motion 
 itself. Buschbaum v. Feldman, 43 Misc. Rep. 85. 
 
 Vacating judgment not rendered in time. — Where a justice renders 
 judgment in a case tried before him, which judgment is void because it 
 was not rendered within the fourteen days prescribed by section 230 
 of the Municipal Court Act (Laws 1902, chap. 580), the justice has 
 power, under section 254 of that act, to make an order vacating such 
 judgment. Such order is appealable to the Appellate Division under 
 section 257 of the Municipal Court Act. 
 
 Upon such an appeal the court is bound by the contents of the return 
 made by the justice, and cannot consider statements in the appellant's 
 brief, not supported by the return, tending to show that the judgment 
 was rendered within the statutory time. Stern v. Fleck, 102 App. 
 Div. 272. 
 
 Vacating judgment because material witness for defeated party did 
 not appear on the trial. — Under Laws 1896, chapter 748, which amend 
 section 1367 of the Consolidation Act (Laws 1882, chap. 410), and 
 which provided that a motion to vacate or modify any judgment ren- 
 dered upon a trial by the court without a jury, may be made for the 
 causes specified in section 999 of the Code of Civil Procedure, it was 
 held that section did not authorize the setting aside of a verdict or 
 judgment because of the failure of one of the moving party's material 
 witnesses to appear at the trial. Erichsen v. Sidle, 76 App. Div. 347. 
 
 Weight of evidence. — Under section 254 this court has power to set 
 aside a verdict and grant a new trial in an action on the ground that 
 the verdict is against the weight of evidence. Newbound v. Interurban 
 B. R. Co., 42 Misc. Rep. 525. 
 
 Notes to section 256, " Court May Impose Conditions, et cetera." 
 
 See also section 253, " Court May Open Default," and notes. 
 
 Jury trial may be demanded after a default has been opened. Levy 
 V. Roossin, 93 App. Div. 387. 
 
 Security. — The order may lawfully provide that the judgment stand 
 as security. Long Branch Pier Co. v. Crossley, 40 Misc. Rep. 249.
 
 § 257. Judgments. 101 
 
 Notes to section 257. 
 
 ( This section has no heading in the act but should be headed " What 
 Orders are Appealable.") 
 
 Arrest. — Order denying motion to vacate order of, is not appealable. 
 Eyman V. Segal, 44 Misc. Rep. 226. 
 
 Judgment by default is appealable. — In an action begun in this court 
 after September 1, 1902, when the Municipal Court Act (Laws 1902, 
 chap. 580) went into effect, the defendant may appeal from a judgment 
 taken against her upon her default, but it is prohibited by section 257 
 of said statute from an appeal from an order opening her default. 
 Long Branch Pier Co. v. Crossley, 40 Misc. Rep. 249. See also Beebe 
 v. Nassau Show Case Co., 41 App. Div. 45G. 
 
 Judgment by default is not appealable. — The Municipal Court Act 
 (Laws 1902, chap. 580) contains no provision permitting an appeal 
 from a judgment taken by default in that court, and such an appeal 
 is no longer permissible. A defendant who has appeared in the action, 
 but who has defaulted in answering, who desires a review of an order 
 denying vacation of an attachment issued in the action against his 
 property must first have his default opened. Brown v. Bouse, 43 Misc. 
 Rep. 72. 
 
 Order opening default not appealable. — The right of a person who, 
 prior to the time when the New York Municipal Court Act (Laws 
 1902, chap. 580, § 257) took effect, had recovered a judgment in that 
 court by default to appeal from an order opening the default and 
 setting aside the judgment, was preserved by section 361 of the 
 Municipal Court Act. Such an appeal no longer lies. The failure of 
 the order opening the default and setting aside the judgment to 
 recite the grounds upon which it was granted, as required by section 
 1367 of the Consolidation Act, constitutes a fatal defect. Johnson v. 
 Manning, 80 App. Div. 368. 
 
 (Section 1367 of the Consolidation Act is now contained in sec- 
 tions 253 and 256 of the Municipal Court Act, with the exception that 
 the order need not recite the grounds.) 
 
 In an action begun after September 1, 1902, when the Municipal Court 
 Act (Laws 1902, chap. 580) went into effect, the defendant may appeal 
 from a judgment taken against her upon her default, but is prohibited 
 by section 257 from an appeal from an order opening her default. 
 Long Branch Pier Co. v. Crossley, 40 Misc. Rep. 249. 
 
 What orders are appealable. — An order of a justice of this court 
 denying a motion to vacate an order of arrest is not appealable, as 
 such an order is not enumerated in the Municipal Court Act (Laws 
 1902, chap. 580, §§ 253, 254, 255, 256, 257). 
 
 The scope of section 20 of said act considered. Lewvitt v. Katzoff, 
 
 43 Misc. Rep. 26; S. C, 86 N. Y. Supp. 495. See also Eyman v. Segal, 
 
 44 Misc. Rep. 226, and Manelly V. Mayers, 43 Misc. Rep. 380.
 
 102 Execution. §§ 260, 261. 
 
 Order vacating judgment not rendered in time. — Where a justice ren- 
 ders judgment in a case tried before him, which judgment is void 
 because it was not rendered within the fourteen days prescribed by 
 section 230 of the Municipal Court Act (Laws 1902, chap. 580), the 
 justice has power, under section 254 of that act, to make an order 
 vacating such judgment. Such order is appealable to the Appellate 
 Division (Second Department) under section 257 of the Municipal 
 Court Act. Stem v. Fleck, 102 App. Div. 272. 
 
 § 260. Execution; how issued — , An execution may be 
 issued on a judgment of the Municipal Court at the option 
 of the judgment creditor, either by the county clerk directed 
 to the sheriff as prescribed by law, after the filing of a 
 transcript of judgment, as provided in the next section, or 
 by the clerk of the Municipal Court in the district in which 
 the judgment was entered, within six years thereafter, di- 
 rected to a marshal. But no execution shall issue out of 
 the Municipal Court after a transcript has been issued, and 
 no transcript shall be issued while an execution of the Munici- 
 pal Court remains unreturned, except a transcript showing 
 that a judgment has been vacated, set aside or modified. The 
 prospective fees of the county clerk and sheriff must be 
 omitted when an execution is issued to a marshal. (As 
 amended by Laws 1903, chap. 144. See notes to section 
 271.) 
 
 Notes to section 261, "Transcript, how to Issue; Judgment of 
 Supreme Court, when Docketed." 
 
 Supplementary proceedings on a judgment recovered in a Municipal 
 Court, a transcript of which was docketed in the county clerk's office; 
 the Supreme Court may set them aside, but cannot vacate the judg- 
 ment. — Where a transcript of a judgment recovered by default in this 
 court for the borough of Brooklyn is docketed in the office of the clerk 
 of the county of Kings, under section 1369 of the Greater New York 
 Charter (Laws 1897, chap. 378) and sections 3017 and 3220 of the 
 Code of Civil Procedure, and, after the return of an execution unsatis- 
 fied, supplementary proceedings are instituted thereunder, the Supreme 
 Court is without jurisdiction to vacate the judgment on the ground 
 that the judgment debtor had never been served with the summons and 
 complaint. The Supreme Court has jurisdiction, however, to stay or 
 set aside the execution and the supplementary proceedings, as those
 
 §§ 263-271. Execution. 103 
 
 matters flowed out of the filing of the transcript and of the docketing 
 of the judgment. Johnson v. Manning, No. 1, 75 App. Div. 285. 
 
 Notes to section 263, " Real Property Bound for Ten Years by a 
 Judgment thus Docketed." 
 
 Lien of judgments; by Laws 1905, chapter 432, section 1251 of the 
 Code of Civil Procedure was amended so as to read as follows: 
 
 § 1251. Except as otherwise specially prescribed by law, and except 
 also as in this section below provided, a judgment, hereafter rendered, 
 which is docketed in a county clerk's office, as prescribed in this article, 
 binds, and is a charge upon, for ten years after filing the judgment 
 roll, and no longer, the real property and chattels real, in that county, 
 which the judgment debtor has at the time of so docketing it, or which 
 he acquires at any time afterwards, and within the ten years. Pro- 
 vided however that no judgment shall be a charge upon or bind the 
 real property of any person unless and until he be designated by his 
 name in a docket of such judgment in the office of the clerk in the 
 county where such property is. Upon such notice to a judgment debtor 
 as the court may direct the supreme court may order that any judg- 
 ment heretofore or hereafter rendered therein against such debtor be 
 amended so as to designate such debtor by his name and that the 
 clerk of the county in which the judgment roll is filed redocket such 
 judgment as so amended; and from the time of such redocket during 
 the remainder of ten years from the filing of the judgment roll, such 
 judgment shall bind and be a charge upon the real property and chat- 
 tels real in that county which such judgment debtor may have at the 
 time of such redocket or may thereafter within said ten years acquire, 
 and a transcript of such new docket may be filed and docketed in the 
 office of the clerk of any other county in the state in like manner and 
 with like effect as a transcript of an original docket may be filed. 
 Upon such notice to a judgment debtor as the court may direct any 
 court other than the supreme court may order that, any judgment 
 heretofore or hereafter rendered therein against such debtor and any 
 docket thereof in such court be amended so as to designate such debtor 
 by his name, and at any time after such amendment shall have been 
 made a transcript of the docket of such judgment as so amended may 
 be filed and docketed in the office of the clerk of any county in this 
 state in like manner and with like effect as a transcript of an original 
 docket may be filed. 
 
 Notes to section 271, " Execution; Requisites." 
 
 Additional personal property exempt in certain cases. — In addition 
 to the exemptions, allowed by the last section, necessary household fur- 
 niture, working tools and team, professional instruments, furniture and 
 library, not exceeding in value two hundred and fifty dollars, together
 
 104 Execution. § 271. 
 
 with the necessary food for the team, for ninety days, are exempt from 
 levy and sale by virtue of an execution, when owned by a person, being a 
 householder, or having a family for which he provides, except where the 
 execution is issued upon a judgment, recovered wholly upon one or more 
 demands, either for work performed in the family as a domestic or for 
 the purchase money, of one or more articles, exempt as prescribed in this 
 or the last section. Where a judgment has been recovered wholly for 
 necessaries sold, or work performed in a family as a domestic, or for 
 services rendered for salary owing to an employe of the judgment 
 debtor, and where an execution issued upon said judgment has been 
 returned wholly or partly unsatisfied and where any wages, debts, 
 earnings, salary, income from trust funds or profits are due and owing to 
 the judgment debtor or shall thereafter become due and owing to him, to 
 an amount exceeding twelve dollars per week and where no execution is- 
 sued as hereafter provided for in this section is unsatisfied and out- 
 standing against said judgment debtor, the judgment creditor may ap- 
 ply to the court in which said judgment was recovered or the court 
 having jurisdiction of the same without notice to the judgment debtor, 
 and upon satisfactory proof of such facts by affidavits or otherwise, 
 the court, if a court not of record, a judge or justice thereof, must 
 issue, or if a court of record, a judge or justice, must grant an order 
 directing that an execution issue against the wages, debt,* earnings, 
 salary, income from trust funds or profits of said judgment debtor, 
 and on presentation of such execution by the officer to whom delivered 
 for collection to the person or persons from whom such wages, debts, 
 earnings, salary, income from trust funds or profits are due and owing, 
 or may thereafter become due and owing to the judgment debtor, said 
 execution shall become a lien and a continuing levy upon the wages, 
 earnings, debts, salary, income from trust funds or profits due or to 
 become due to said judgment debtor to the amount specified therein 
 which shall not exceed ten per centum thereof, and said levy shall be 
 a continuing levy iintil said execution and the expenses thereof are fully 
 satisfied and paid or until modified as hereinafter provided. It shall 
 be the duty of any person or corporation municipal or otherwise to 
 whom said execution shall be presented, and who shall at such time 
 be indebted to the judgment debtor named in such execution, or who 
 shall become indebted to such judgment debtor in the future, and while 
 said execution shall remain a lien upon said indebtedness to pay over 
 to the officer presenting the same, such amount of such indebtedness 
 as such execution shall prescribe until said execution shall be wholly 
 satisfied and such payment shall be a bar to any action therefor by 
 any such judgment debtor. If such person or corporation municipal 
 or otherwise to whom said execution shall be presented shall fail, or 
 refuse to pay over to said officer presenting said execution, the per- 
 
 *So in original.
 
 § 271. Execution. 105 
 
 centage of said indebtedness, he shall be liable to an action therefor 
 by the judgment creditor named in such execution, and the amount so 
 recovered by such judgment creditor shall be applied towards the pay- 
 ment of said execution. Either party may apply at any time to the 
 court from -which such execution shall issue, or to any judge or justice 
 i6euing the same, or to the county judge of the county, and in any 
 county where there is no county judge, to any justice of the city court 
 upon such notice to the other party as such court, judge, or justice 
 shall direct for a modification as* said execution, and upon such hear- 
 ing the said court, judge or justice may make such modification of 
 the said execution as shall be deemed just, and such execution as so 
 modified shall continue in full force and effect until fully paid and 
 satisfied, or until further modified as herein provided. Code Civ. Proc, 
 § 1391, as amended by Laics 1905, chap. 175. Passed April 11, 1905, 
 to take effect immediately. 
 
 Action for refusing to pay wages of judgment debtor. — A complaint 
 in an action brought under the authority of the last sentence of section 
 1391 of the Code of Civil Procedure, as amended by chapter 461 of the 
 Laws of 1903, against a person or corporation refusing to honor an 
 execution issued against the wages of a judgment debtor pursuant to 
 that section, is demurrable if it fails to allege that no prior similar 
 execution against the judgment debtor is outstanding. Rosenslock v. 
 City of New York, 97 App. Div. 337. See also King v. Irving, 103 App. 
 Div. 421. 
 
 Amount to be levied upon must be stated in execution against the 
 wages or salary of a judgment debtor. — The sheriff is not bound to 
 accept an execution if it fails to specify a definite or the precise amount 
 to be levied upon, and a direction to levy " to the extent of ten per 
 centum of the debtor's salary due and owing to him from the Nassau 
 Bank " is unwarranted. The execution is a lien on the amount of 
 wages or salary of the debtor as it becomes periodically due, to the 
 extent of the sum fixed by the justice, which sum is not to exceed 10 
 per cent, of such periodic salary or wage, and the execution to the 
 extent of said sum so fixed is made a lien upon each successive amount 
 of wages as it became due, said sum being subject to levy thereunder, 
 until the whole amount of the judgment and expenses shall be paid. 
 To render the provisions of this enactment effective, it is evident that 
 it is necessary to have the execution specify the amount to be levied 
 upon periodically and the words in the act " the amount specified 
 therein " clearly relate to the amount to be fixed by the justice after 
 considering the facts presented to him in the affidavit of the judgment 
 debtor. Justice Greenbaum, Supreme Court, Special Term, Part I, in 
 Wedelin v. Erlanger, Sheriff, N. Y. Law Journal, May 23, 1905. 
 
 * So in original.
 
 106 Execution. § 271. 
 
 Articles used by undertaker in business; exemption; question for 
 j ury . — Where in an action against a sheriff for seizing, upon execution, 
 personal property in value less than §250, used in plaintiff's business 
 as an undertaker and claimed by him to be exempt under section 1391 
 of the Code of Civil Procedure, of which claim the sheriff was notified 
 before the sale, the evidence tends to support the complaint, it is for 
 the jury to determine the character of the property, and the direction 
 of a verdict for defendant is error. O'Reilly v. Erlanger, 46 Misc. Rep. 
 278. See Clark v. Smith, 31 Misc. Rep. 495; Field v. Ingraham, 15 
 Misc. Rep. 531; Kntipp v. O'Neill, 46 Hun, 317; Gilewicz v. Goldberg, 
 69 App. Div. 439. 
 
 Constitutionality. — Section 1391, Code of Civil Procedure, is con- 
 stitutional. Sloane v. Tiffany, 103 App. Div. 540; King v. Irving, 103 
 App. Div. 420. 
 
 Execution against the body; subsequent issue; construction of sec- 
 tion 68; Code of Civil Procedure, section 572, inapplicable to this court. — 
 Where a plaintiff, who, in October, 1902, procured an order of arrest in 
 an action in this court and thereafter recovered judgment agairst the 
 defendant, fails to take out an execution upon the judgment before the 
 expiration of twenty-four hours after he was entitled to the judgment, 
 the defendant, although he has given bail, is entitled to his discharge 
 under Laws 1902, chapter 580, section 68. His discharge does not 
 defeat the right of the plaintiff to the subsequent issue of a body execu- 
 tion upon the judgment, in the form prescribed by Laics 1902, chapter 
 580, section 271. Code Civil Procedure, section 572, does not apply to 
 the Municipal Court, and, therefore, its concluding provision that 
 " a defendant discharged as prescribed in this section shall not be 
 arrested upon an execution issued upon the judgment in the action " 
 has no application to the matter. Rogoio v. Clark, 40 Misc. Rep. 208. 
 
 Fictitious name; when the judgment is fatally defective and an exe- 
 cution issued thereon is void. — The summons in an action brought in 
 the Municipal Court of the city of New York was entitled as follows: 
 
 "Mary Maekowitz, 
 
 Plaintiff, 
 against 
 
 Etta Lipsky and John Goldberg, 
 Defendant. 
 
 Free summons. 
 
 First names being fictitious, un- 
 known to plaintiff." 
 
 J 
 
 The certificate of service recited that the marshal served the sum- 
 mons " on John Goldberg, one of the within-named defendants * * * 
 and that I know the person to be one of the defendants therein named." 
 
 The docket, under the title " Markowitz against Lipsky et al.," re-
 
 § 271. Execution. 107 
 
 cited that the plaintiff appeared in person and that the complaint was 
 for goods sold and delivered; that the defendant appeared in person, 
 and that judgment was rendered for $20.25 damages and $1 costs. 
 
 The record did not show for or against whom the judgment had been 
 rendered, or that Goldberg was a party to the action or appeared 
 therein. An execution was then issued directing the marshal to collect 
 the amount due out of " the separate property of the judgment debtor, 
 John Goldberg, first name fictitious, real name unknown to plaintiff." 
 This execution was levied upon property belonging to Nathan M. Gold- 
 berg, who was one of the persons upon whom the summons in the 
 action was served, and who appeared in answer to the summons. 
 
 In an action brought by Nathan M. Goldberg against Markowitz and 
 the marshal who levied the execution to recover damages for the 
 alleged conversion of the property levied upon, it was held, that the 
 record of the judgment was fatally defective, and that the execution 
 issued thereon was void upon its face and constituted no protection to 
 the marshal or to any one acting under it; that the docket did not 
 show upon its face that any judgment had been rendered in favor of 
 the plaintiff against the defendant; that as Lipsky was the only de- 
 fendant named in the record, there was no presumption that the pro- 
 ceeding was against any one but Lipsky. Goldberg v. Markowitz, 94 
 App. Div. 237, 238. 
 
 Motion for order granting leave to issue execution under section 1391, 
 Code of Civil Procedure; parties; notice. — The application should be 
 addressed to the court wherein judgment was recovered. The person or 
 party who is alleged to have money or property of the judgment debtor 
 must be made a party to the motion and must be given notice thereof 
 as well as the judgment debtor. King v. Irving, 103 App. Div. 420-423; 
 Bloane v. Tiffany, 103 App. Div. 540. 
 
 Policeman, salary of. — An execution against the salary of a police- 
 man in New York city is not authorized by section 1391 of the Code 
 of Civil Procedure. Rosenstock v. City of New York, 101 App. Div. 9. 
 
 Property rights. — The Legislature has no power to destroy existing 
 property rights by legislation in favor of judgment creditors. Sloane 
 V. Tiffany, 103 App. Div. 540; King V. Irving, 103 App. Div. 420. 
 
 Public servant. — It is questionable whether the salary of a public 
 servant can be reached under Code Civil Procedure, section 1391. 
 Keelan v. Sullivan, N. Y. Law Journal, July 19, 1905, Bischoff, J. 
 
 Rent due is not " necessaries sold." — The statute will not be extended 
 to cases not clearly within the plain and ordinary meaning of its 
 phraseology. I think the word " necessaries," as intended by the law- 
 makers, refers to tangible property, that is, merchandise or goods which 
 are " necessaries " in contradistinction to such " necessaries " as rent 
 or physician's services. If the Legislature intended to include all 
 " necessaries " why did it add the word " sold ? " If it was designed 
 to reach a judgment debtor's wages for any " necessaries " the word
 
 108 Execution. §§ 272-276. 
 
 " sold " would be useless and superfluous. It must be assumed that 
 the Legislature had a purpose in adding the word " sold," and that it 
 intended thereby to express the popular understanding of the phrase 
 " necessaries sold," as referring to merchandise which would be con- 
 sidered " necessaries " to the judgment debtor " sold " to him in contra- 
 distinction from necessaries generally speaking. Justice Greenbaum, 
 Supreme Court, Special Term, Part I, in Cochran V. Howes, N. Y. Law 
 Journal, June 20, 1905. 
 
 Trust fund; will. — Section 1391 of the Code of Civil Procedure, as 
 amended by chapter 461 of the Laws of 1903, permitting an execution 
 upon a judgment for necessaries to be issued, and requiring the pay- 
 ment upon the judgment of 10 per cent, of the income of the trust fund 
 created for the judgment debtor, is not retroactive and, consequently, 
 does not apply to a trust created for the benefit of a judgment debtor 
 by a will admitted to probate in 1894. The trustee is a necessary party 
 to the motion for the execution. King V. Irving, 103 App. Div. 420; 
 Sloane v. Tiffany, 103 App. Div. 540. 
 
 Said section of the Code of Civil Procedure would be unconstitutional 
 if intended to affect rights acquired under trusts created and in opera- 
 tion before the passage of said section. Sloane V. Tiffany, 103 App. 
 Div. 540. 
 
 Time; failure to issue execution in. — Plaintiff obtained an order of 
 arrest, recovered judgment, but failed to issue execution before the 
 expiration of twenty-four hours after he obtained the judgment; held, 
 that defendant, though out on bail, is entitled to be discharged under 
 section 68. Held, also, that such discharge does not defeat plaintiff's 
 right to the subsequent issue of a body execution upon the judgment 
 under section 271. Rogow v. Clark, 40 Misc. Rep. 208. 
 
 Notes to section 272, "Arrest (Execution)." 
 
 Failure to issue execution in time; subsequent issue.— Plaintiff ob- 
 tained an order of arrest, recovered judgment, but failed to issue exe- 
 cution before the expiration of twenty-four hours after he obtained 
 the judgment, held, that defendant, although out on bail, is entitled 
 to be discharged under section 68. Held, also, that such discharge does 
 not defeat plaintiff's right to the subsequent issue of a body execution 
 upon the judgment under section 271. Rogow v. Clark, 40 Misc. 
 Rep. 208. 
 
 Notes to section 276, "Marshal; when Liable to Execution; 
 
 Creditor." 
 
 Action against a defendant whose name is fictitious; when the judg- 
 ment is fatally defective and an execution issued thereon is void. —
 
 § 282. 
 
 Execution. 
 
 109 
 
 The summons in an action brought in the Municipal Court of the city 
 of New York was entitled as follows: 
 
 "Mary Mabkowitz, 
 
 Plaintiff, 
 against 
 
 Etta Lipsky and John Goldberg, 
 Defendant. 
 
 Free summons. 
 
 First names being fictitious, un- 
 known to plaintiff." 
 
 • J 
 
 The certificate of service recited that the marshal served the sum- 
 mons " on John Goldberg, one of the within-named defendants, * * * 
 and that I know the person to be one of the defendants therein named." 
 
 The docket, under the title " Markowitz against Lipsky et al.," re- 
 cited that the plaintiff appeared in person, and that the complaint was 
 for goods sold and delivered; that the defendant appeared in person, 
 and that judgment was rendered for $20.25 damages and $1 costs. 
 
 The record did not show for or against whom the judgment had 
 been rendered, or that Goldberg was a party to the action or appeared 
 therein. An execution was then issued directing the marshal to collect 
 the amount due out of " the separate property of the judgment debtor, 
 John Goldberg, first name fictitious, real name unknown to plain- 
 tiff ". This execution was levied upon property belonging to Nathan 
 M. Goldberg, who was one of the persons upon whom the summons in 
 the action was served, and who appeared in answer to the summons. 
 
 In an action brought by Nathan M. Goldberg against Markowitz and 
 the marshal who levied the execution, to recover damages for the al- 
 leged conversion of the property levied upon, it was held, that the 
 record of the judgment was fatally defective, and that the execution 
 issued thereon was void upon its face and constituted no protection 
 to the marshal or to any one acting under it; 
 
 That the docket did not show upon its face that any judgment had 
 been rendered in favor of the plaintiff against the defendant. That 
 as Lipsky was the only defendant named in the record, there was no 
 presumption that the proceeding was against any one but Lipsky. 
 Goldberg v. Markowitz, 94 App. Div. 237, 238. 
 
 § 282. Duties of the clerk. — 9. To keep his office open for 
 the transaction of business, every judicial day, from nine 
 o'clock in the forenoon to four o'clock in the afternoon, ex- 
 cept that during the months of July and August of each year 
 the clerk's office may, by a rule established by the board of 
 justices, be closed at two o'clock in the afternoon. (As
 
 110 Clerks and Officers §§ 295, 29G. 
 
 amended by Laws 1904, chap. 682 ; passed May 9, 1904, 
 adding subd. 9 to this section.) 
 
 Notes to section 295, "Prosecution of" [Marshal's] "Bond." 
 
 Action against the surety upon a marshal's bond; a judgment against 
 him is not even prima facie evidence of a breach; what is necessary 
 proof to obtain judgment against surety. — In an action against the 
 surety upon the official bond of a marshal, conditioned that he shall 
 well and faithfully execute the duties of his office without fraud, de- 
 ceit, or oppression, a judgment recovered against him for a conversion 
 or unlawful levy is not, as against the surety, even prima facie evidence 
 of the facts essential to a recovery. While section 295 of the Municipal 
 Court Act makes it a condition of maintaining such an action against 
 the surety that a judgment shall have been recovered against the 
 marshal, execution issued and returned wholly or partly unsatisfied 
 and leave given to prosecute the bond, the act does not declare that 
 the judgment shall be evidence against the surety or anything more 
 than the fact that the judgment has been obtained. Loewer's Gam- 
 orinus B. Co. v. Lithauer, 43 Misc. Rep. 683. 
 
 Invalid levy on goods of a third person; bond of a city marshal of 
 Brooklyn; its validity. — A surety, of a marshal of the former city of 
 Brooklyn, which has become bound for his faithful discharge of the 
 duties of his office and in default thereof to pay all damages resulting 
 from such default, is liable to a person where the marshal attaches 
 and sells that person's property by virtue of process running against 
 another person. The marshal must be deemed to have been acting 
 colore officii. The validity of the bond is not impaired by the facts 
 that it was given before, while the breach thereunder arose after, Janu- 
 ary 1, 1898, when the said charter took effect. Fohs v. Rain, 39 Misc. 
 Rep. 316. 
 
 Liability for wrongful levy. — A city marshal and the sureties upon 
 his official bond " for the faithful discharge of his duties " are liable 
 in damages for a levy upon the goods of one person under an execution 
 or other process against the goods of another. Frankenstein v. Cum- 
 misky, 46 Misc. Rep. 485. 
 
 Notes to section 296, " In What Court Bond May be Prosecuted." 
 
 County Court of Kings county. — The bond may be ordered prose- 
 cuted against the surety and the marshal continued in office by the 
 charter of the city of New York, in the Municipal Court of said city, 
 borough of Brooklyn, and the said charter (Laws 1897, chap. 378, 
 § 1428) does not limit prosecution to the County Court of Kings 
 county. Fohs v. Rain, 39 Misc. Rep. 316.
 
 §§ 306, 307. Marshals. Ill 
 
 Jurisdiction in an action against a foreign corporation, having an 
 office in said city, as surety upon a city marshal's bond. — The jurisdic- 
 tion of the Municipal Court of the city of New York to render judg- 
 ment against a foreign corporation, having an office in said city, and 
 being surety on the bond of a city marshal, is to be determined by the 
 Municipal Court Act (Laws 1902, chap. 580, § 1, subds. 5 and 18), 
 and under these subdivisions, when read together, there is no jurisdic- 
 tion where the plaintiff claims more than $500. Section 296 of said 
 act, authorizing a justice of the Supreme Court to order prosecution 
 in the said Municipal Court of a marshal's bond — without limitation 
 as to its amount — cannot aid the plaintiff, and is to be condemned 
 as an attempt to give such a justice power to confer upon the said 
 Municipal Court jurisdiction in such a case beyond $500. Frieland v. 
 Union Surety Co., 43 Misc. Rep. 38. 
 
 § 306. Removal and suspension of marshals. — The mayor 
 may remove any marshal, after giving him an opportunity 
 to be heard, upon charges in writing preferred against such 
 marshal, and filed with the mayor, and may, in his discre- 
 tion, suspend said marshal from the performance of his 
 duties, as such, pending a hearing upon the charges. Upon 
 charges being preferred against a marshal by a justice of the 
 municipal court, the mayor may forthwith cause notice of 
 suspension of such marshal to be served upon him, and such 
 marshal shall thereupon remain suspended until the hear- 
 ing and determination of such charges by the mayor. The 
 mayor may, in his discretion, delegate to the secretary to the 
 mayor the power and duty of hearing the evidence to be 
 produced upon the said hearing and in such case the said 
 secretary to the mayor shall have the power to issue sub- 
 poenas, administer oaths and take such evidence and shall 
 submit the same to the mayor who shall thereupon make a 
 determination thereon, which determination shall have the 
 same force and effect as if the said evidence had been taken 
 before the mayor. (As amended by Laws 1904, chap. 264; 
 passed April 8, 1904.) 
 
 § 307. Payment of money received by marshals. — When- 
 ever any marshal shall collect or receive any money upon any 
 process of the municipal court of the city of ]STew York, he 
 shall pay the same over to the clerk of the court of the dis-
 
 112 Appeals. § 311. 
 
 trict from which such process was issued, less his lawful 
 fees and disbursements within five days after the same shall 
 have been received by him. Upon his failure so to do he 
 may be proceeded against as for a contempt. The clerk of 
 the court with whom such money is deposited shall pay the 
 same over on demand to the person entitled thereto. (This 
 is a new section added by Laws 1905, chap. 228; became a 
 law April 19, 1905.) 
 
 § 311. An appeal must be taken within twenty days after 
 the entry of the judgment, order or final order in the docket, 
 except that where a defendant appeals from a judgment ren- 
 dered in an action wherein he did not appear and the sum- 
 mons was not personally served upon him, the appeal may 
 be taken within twenty days after personal service upon him, 
 on the part of the plaintiff, of written notice of the entry of 
 the judgment. An appeal is taken by serving upon the clerk 
 of the court or his successor in office in the district in which 
 the judgment, order or final order was rendered, and upon 
 the respondent, a written notice of appeal, subscribed either 
 by the appellant or by his attorney in the appellate court, 
 and paying at the same time the costs and disbursements of 
 the action to such clerk who shall hold the same to abide the 
 event of such appeal and the further order of the court in 
 the district from which the appeal was taken. (As amended 
 by Laius 1904, chap. 598 ; passed May 4, 1904.) 
 
 Notes to section 310, "When Appeal May be Taken," and sec= 
 tion 311, "When and how Taken." 
 
 RULES FOR THE HEARING OF APPEALS FROM THE CITY COURT 
 OF THE CITY OF NEW YORK AND FROM THE MUNICIPAL 
 COURT IN THE BOROUGHS OF MANHATTAN AND THE 
 BRONX. 
 
 Rule I. 
 
 There shall be a term of the Supreme Court for the hearing of ap- 
 peals from the City Court and the Municipal Court of the city of 
 New York in the boroughs of Manhattan and the Bronx, which shall 
 commence on the first Monday of October, November, December, Jan- 
 uary, February, March, April, May, and June in each year, at 10:30 
 A. M., and shall continue from day to day during each of said months
 
 § 311. Appeals. 113 
 
 until all appeals ready for hearing are heard and disposed of. The 
 court shall hold its sessions in the court-house in the county of New 
 York, and it shall be held by three justices of the Supreme Court duly 
 designated to hold such term, and shall be known as the Appellate Term. 
 
 Rule II. 
 
 The clerk of such term of the Supreme Court shall make up a calen- 
 dar of all appeals to be heard at each term, and publish the same 
 in " The Law Journal " at least five days before the commencement 
 of the term. No appeal shall be placed on such calendar unless the 
 return from the court below is duly filed with the clerk of such term 
 at least eight days before the commencement of the term; nor, in the 
 case of appeals from the City Court, unless an affidavit is filed with 
 such clerk at least eight days before the commencement of the term, 
 by which it appears that three copies of such return, duly printed as 
 required by the General Rules of Practice, have been served upon the 
 attorney for the respondent. Upon such return being filed as afore- 
 said, and, in the case of appeals from the City Court, upon an affidavit 
 as aforesaid being also filed, the clerk shall place the appeal upon 
 the calendar in the order in which the return was filed. Upon an 
 appeal from the City Court the judgment or order of the court shall 
 be entered in the office of the clerk of the Supreme Court; a certified 
 copy of such judgment or order shall be annexed to the return from 
 the City Court, which certified copy and return shall be transmitted 
 to the City Court as required by section 1345 of the Code of Civil 
 Procedure. Upon an appeal from the Municipal Court the judgment 
 or order of the Appellate Term shall be entered in the office of the 
 clerk of the Supreme Court, and a certified copy thereof annexed to 
 the return received from the Municipal Court, which return and 
 certified copy of the judgment or order shall be returned to the district 
 of the Municipal Court from which the appeal was taken, as provided 
 by section 317 of chapter 580 of the Laws of 1902, which shall remain 
 on file in the said Municipal Court. 
 
 Rule III. 
 
 In appeals from the City Court, in case the appellant does not cause 
 the return to be filed with the clerk of the said Appellate Term, and 
 print and serve three copies thereof upon the attorney for the re- 
 spondent, as required by the General Rules of Practice, within ten 
 days after the settlement of the case on appeal, the respondent may 
 move, upon five days' notice, on the first day of the term of such 
 court to dismiss the appeal, and the appeal shall be dismissed, unless 
 the time of the appellant to cause such return to be filed and copies 
 thereof to be printed and served be extended by the justices assigned 
 to hear such appeals, or one of them, for good cause shown. In
 
 114 Appeals. § 311. 
 
 appeals from the Municipal Court of the city of New York, if the ap- 
 pellant does not procure the return to be made to the court within 
 the time prescribed by section 317 of chapter 580 of the Laws of 1902, 
 the respondent may move, on five days' notice, to dismiss the appeal, 
 and such appeal shall be dismissed, unless the justices assigned to hear 
 such appeal, or one of them, for good cause shown, shall extend the 
 time. If the court, below shall not make the return as prescribed 
 by section 317 of chapter 580 of the Laws of 1902, either party may 
 move at the Appellate Term, upon five days' notice to the attorney 
 for the adverse party and to the trial justice to compel such return 
 by attachment. 
 
 Rule IV. 
 
 Motions for reargument will only be heard on notice to the adverse 
 party at the next succeeding term after the decision; such notice must 
 state briefly the ground upon which the reargument is asked, and such 
 motions must be submitted on printed briefs stating concisely the 
 points supposed to have been overlooked or misapprehended by the 
 court with proper reference to the particular portion of the case and 
 the authorities relied upon, together with copies of the opinions, if 
 any, and counsel will not be heard orally. 
 
 Rule V. 
 
 In the argument of the appeal from an order or from a Municipal 
 Court judgment, not more than fifteen minutes shall be occupied by 
 counsel on either side, and in the argument of an appeal from a judg- 
 ment of the City Court not more than thirty minutes shall be occupied 
 by counsel on either side, except by express permission of the court. 
 
 Rule VI. 
 
 If the appellant does not appear upon the call of the calendar, the 
 judgment or order appealed from shall be affirmed. If the appellant 
 appears and the respondent fails to appear, the appellant may either 
 argue or submit his case, but judgment of reversal by default will not 
 be allowed. 
 
 Rule VII. 
 An application to appeal to the Appellate Division of the Supreme 
 Court from a determination of the Appellate Term, under section 1344 
 of the Code of Civil Procedure, must be made in writing on notice to 
 the adverse party upon the first day of the term following the term 
 in which the case was decided; and such application must set forth in 
 full the special reasons why such an appeal should be allowed, and 
 must be submitted without oral argument.
 
 § 311. Appeals. 115 
 
 Rule VIII. 
 
 All motions which may be made under Rule III upon a notice of 
 five days. — Proof of service of such notice must be filed with the clerk, 
 together Avith a note of issue, on the Friday preceding the commence- 
 ment of the term. In all other cases, whether the motion be founded 
 upon regular notice or an order to show cause, proof of service of the 
 notice or order, together with a note of issue, must be filed with the 
 clerk on the same day. 
 
 The Motion Calendar will be published on the Saturday preceding 
 the commencement of the term, but no motion will be placed thereon 
 except upon compliance with this rule. 
 
 Appeals from the Municipal Court will be disposed of in their order 
 upon the calendar. If either party be not ready to argue the ease 
 orally when called for argument, he must submit, or the case for cause 
 shown be ordered to stand over until the next term. 
 
 Proposed orders must be presented for settlement on a notice of two 
 days. 
 
 Every order containing a provision for a new trial in the Municipal 
 Court must specify the time and place of the new trial ordered in 
 accordance with the provisions of section 3065 of the Code of Civil 
 Procedure. 
 
 Supreme Court — Appellate Term. 
 
 In all motions which are required to be placed upon the Motion Cal- 
 endar under Rule VIII of the rules for the hearing of appeals from the 
 City Court and from the Municipal Court, and in motions for restitu- 
 tion, no oral argument will be heard and the Motion Calendar will not 
 be called. 
 
 The papers upon which a motion is made and the answering affidavits 
 must be filed with the clerk of the Appellate Term at or before 12 
 o'clock noon of the day for which the motion is noticed. 
 
 If a motion affects any appeal on the calendar, counsel are requested 
 to call the attention of the clerk to the fact. 
 
 Appeals from orders and judgments of the City Court will be heard 
 in the forenoon of the first day of the term. 
 
 Appeals from the Municipal Court will be heard in the afternoon of 
 the same day, after the Calendar of City Court Appeals shall have 
 been disposed of. 
 
 On appeals from the City Court no typewritten copies of the points 
 will be received and the body of each point in the printed copies must 
 be in uniform type, as prescribed by Rule 43 of the General Rules of 
 Practice. 
 
 No appeal from a judgment or order of the Municipal Court will be 
 heard or received on submission unless proof of service of a notice of 
 argument shall have been filed with the clerk of the Appellate Term 
 not less than six days before the first day of the term.
 
 116 Appeals. § 311. 
 
 Amended Rules Appellate Division, Second Department, Regulating 
 Appeals from the Municipal Court. 
 
 All appeals from judgments rendered in the Municipal Court of the 
 city of New York, in districts embraced within the Second Judicial 
 Department, will be heard by the Appellate Division of the Supreme 
 Court for said depai tment. No special calendar of such appeals will 
 hereafter be made up, but they will be placed upon the general calen- 
 dar of enumerated cases, according to the date of the appeal, and will 
 be treated in all respects, not herein specially provided for, like other 
 appeals to the Appellate Division from courts other than the Supreme 
 Court. Either party may bring such an appeal on for hearing by a 
 notice of argument served at least eight days prior to the beginning 
 of the term. Upon the return day of said notice the respondent may, 
 upon the default of his adversary, take a judgment of affirmance or an 
 order dismissing the appeal, as the justice of the case may require; 
 and it shall not be necessary to make a special motion for the dismissal 
 of an appeal, except for failure to file the return. In case of a failure 
 of any justice of the Municipal Court to make return to this court, as 
 required by section 317 of chapter 580, Laws of 1902, it shall be the 
 duty of the appellant forthwith to apply to this court, under the pro- 
 visions of sections 3055 and 3056 to compel such return. 
 
 The appeal shall be heard upon the original return or a certified 
 copy thereof, and each party shall file five copies of any brief or points 
 which he may desire to submit, at least one day before the argument. 
 
 These amended rules will take effect beginning with the February 
 term, 1905. 
 
 Affidavits attached to the appellant's brief not considered. — On an 
 appeal from an order of this court the Appellate Division will not 
 consider affidavits attached to the appellant's brief. Guase v. Sterling 
 Piano Co., 95 App. Div. 115. 
 
 Corrected judgment. — Where a judgment for defendant is, on plain- 
 tiff's motion, corrected to read " complaint dismissed for failure of 
 proof," the plaintiff cannot subsequently appeal from such corrected 
 judgment as it was made on her own motion and enables her to begin 
 another action for the same cause. Reichenberg v. Interurban St. R. R. 
 Co., 45 Misc. Rep. 387. 
 
 Delay in deciding, in the second department, appeals from the New 
 York Municipal Court, explained. — The delay of the Appellate Division 
 in the second department, in disposing of appeals, involving questions 
 of fact, from judgments of the Municipal Court of the city of New 
 York, declared to be due to the fact that the appellate court is provided 
 with but a single copy of the appeal papers, thus preventing all the 
 members of the court from working upon the case at the same time. 
 Schmand v. Langdon, 89 App. Div. 191.
 
 § 311. Appeals. 117 
 
 Exceptions to be heard in the first instance; power of Appellate 
 Term and Appellate Division; history. — The Appellate Term of the 
 City and District Courts of the city of New York, as constituted under 
 the rules of the Appellate Division, has no power to pass upon excep- 
 tions ordered to be heard in the first instance, during the suspension 
 of entry of judgment dismissing a complaint. The power of said Appel- 
 late Term relates exclusively to appeals, and a motion for a new trial, 
 ordered to be heard in the first instance, is not an appeal. 
 
 The power of the Appellate Division to pass upon such exceptions 
 in the first instance is exclusive. History of Appellate Term and its 
 jurisdiction stated. Dickson v. Manhattan R. Co., 45 Misc. Rep. 572. 
 Decided December Term, 1904. 
 
 Judgment by default is appealable. — In an action begun in this court 
 after September 1, 1902, when the Municipal Court Act (Laws 1902, 
 chap. 580) went into effect, the defendant may appeal from a judgment 
 taken against her upon her default, but it is prohibited by section 257 
 of said statute from an appeal from an order opening her default. 
 Long Branch Pier Co. v. Crossley, 40 Misc. Rep. 249. See also Beebe 
 v. Nassau Show-Case Co., 41 App. Div. 456. 
 
 Judgment by default not appealable. — The Municipal Court Act (Laws 
 1902, chap. 5S0) contains no provision permitting an appeal from a 
 judgment taken by default in that court, and such an appeal is no 
 longer permissible. A defendant who has appeared in the action, but 
 who has defaulted in answering, who desires a review of an order 
 denying vacation of an attachment issued in the action against his 
 property must first have his default opened. Brown v. Bouse, 43 Misc. 
 Rep. 72. 
 
 Jurisdiction; counterclaim $500. — Quare, whether the objection that 
 this court did not have jurisdiction of a counterclaim for an amount 
 in excess of $500 can be successfully urged for the first time upon an 
 appeal from a judgment sustaining the counterclaim. Lifshitz v. Mc- 
 Connell, 80 App. Div. 289. 
 
 Orders. — Only such orders are appealable as are enumerated in sec- 
 tions 253, 254, 255, and 257 of this act. Smith v. Ely, 46 App. Div. 
 458, citing Leavitt v. Katzoff, 43 Misc. Rep. 26. 
 
 Orders appealable; levy on execution, how discharged pending defend- 
 ant's appeal. — An order of a justice of this court denying a motion to 
 vacate an order of arrest is not appealable. Semble, that where a 
 defendant against whom a judgment has been recovered in this court 
 upon which execution has been issued and levy made thereunder on 
 his personalty files a notice of appeal and serves upon the plaintiff 
 an undertaking in the form required by the Municipal Court Act (Laws 
 1902, chap. 580, § 314) for more than $100 and for twice the amount 
 of the judgment but in an amount less than $500, the effect of the 
 service is merely to stay further proceedings under the execution, and 
 if the defendant desires to discharge the levy he should file a new
 
 118 Appeals. § 311. 
 
 undertaking of similar conditions in $500, in which event this court 
 would under Code Civil Procedure, section 1311, taken in connection 
 with section 20 of the Municipal Court Act, have jurisdiction to make 
 an order discharging the levy. Hyman v. Segal, 44 Misc. Rep. 226. 
 
 Order opening a default not appealable. — The right of a person who, 
 prior to the time when the New York Municipal Court Act (Laws 
 1902, chap. 580, § 257) took effect, had recovered a judgment in that 
 court by default to appeal from an order opening the default and setting 
 aside the judgment, was preserved by section 301 of the Municipal Court 
 Act. Such an appeal no longer lies. The failure of the order opening 
 the default and setting aside the judgment to recite the grounds upon 
 which it was granted, as required by section 1367 of the Consolidation 
 Act, constitutes a fatal defect. Johnson v. Manning, 80 App. Div. 368. 
 
 Order sustaining a demurrer. — No appeal lies to this court from an 
 order sustaining or overruling a demurrer to a complaint. But where, 
 though the notice of appeal recites the entry of a judgment, the record 
 does not contain a judgment entered upon such an order, an appeal 
 therefrom will be dismissed. Smith v. Ely, 46 Misc. Rep. 458. 
 
 Pleading minutes of trial. — As a general rule the scope of an adjudi- 
 cation in this court may, in view of the informality of the pleadings 
 and proceedings in that court, be determined by a resort to the minutes 
 of the trial. Section 1209 of the Code of Civil Procedure does not 
 apply to this court and the question whether a judgment rendered by 
 it dismissing the complaint was or was not rendered upon the merits 
 need not therefore be determined on the judgment-roll alone, but resort 
 may be had to the minutes of the trial. Stecher v. Independent Order, 
 45 Misc. Rep. 340. 
 
 Retaxation of costs; the remedy is by an appeal from the judgment in 
 which such costs are included; second department. — The jurisdiction of 
 the Appellate Division in the second department to review orders of the 
 Municipal Court of the city of New York is statutory only. 
 
 The Municipal Court Act (Laws 1902, chap. 580, §§ 253-257) does 
 not permit an appeal to the Appellate Division in the second depart- 
 ment from an order of the Municipal Court of the city of New York 
 denying a motion to review a taxation of costs under an order made 
 by such Appellate Division affirming a judgment of the Municipal Court. 
 
 The appeal contemplated in section 342 of the Municipal Court Act 
 relating to the review of a taxation of costs is an appeal from the 
 judgment and not an appeal from the separate order reviewing the 
 taxation. Semble, that as it is the practice in the Municipal Court, 
 after the affirmance of a judgment by the Appellate Division, to enter 
 a new judgment containing the cost3 upon appeal, the remedy of the 
 party claiming that an excessive amount of costs was allowed is to 
 appeal to the Appellate Division from so much of the judgment as 
 awards the item which he deems to be excessive. Spiegelman v. Union 
 Railway Co., 95 App. Div. 92.
 
 §§ 317-326. Appeals. 119 
 
 Vacating its own void judgment; the order is appealable; the appel- 
 late court is concluded ty the return; it cannot consider statements in 
 contravention thereof in the brief of counsel. — Where a justice of this 
 court renders judgment in a case tried before him, which judgment is 
 void because it was not rendered within the fourteen days prescribed by 
 sectioyi 230 of the Municipal Court Act (Laics 1902, chap. 580), the 
 justice has power under section 254 of that act to make an order 
 vacating such judgment. Such order is appealable to the Appellate 
 Division, second department, under section 257 of the Municipal Court 
 Act. Stern v. Fleck, 102 App. Div. 272. 
 
 Return and statements of brief. — Upon an appeal the court is bound 
 by the contents of the return made by the justice, and cannot consider 
 statements in the appellant's brief, not supported by the return, tend- 
 ing to show that the judgment was rendered within the statutory time. 
 Stem v. Fleck, 102 App. Div. 272. 
 
 Statutory. — The power of the Supreme Court to entertain appeals 
 from this court is purely statutory. Smith v. Ely, 46 Misc. Rep. 458, 
 citing Leavitt v. Katzoff, 43 Misc. Rep. 26. 
 
 Notes to section 317, "Return." 
 
 A marshal's return showing personal service of the summons and 
 verified complaint upon the defendant cannot be controverted by affi- 
 davit that she was not served and her affidavit forms no part of the 
 record. Long Branch Pier Co. v. Crossley, 40 Misc. Rep. 249. 
 
 Notes to section 318, "Settlement of Case on Appeal." 
 
 Waiver. — Service by the respondent of amendments to the case on 
 appeal is a waiver of any defects in the appellant's procedure. Cooley 
 v. Penn. R. R. Co., 40 Misc. Rep. 238. 
 
 Notes to section 326, " Judgment." 
 
 Erroneous transfer of action; appeal from order. — Where it appears 
 that an action, transferred to a district not adjoining, because of the 
 disqualification of the justice, was brought in the proper district and 
 no appeal is taken from an order denying defendant's motion to fur- 
 ther transfer the cause, not to the district adjoining the one in which 
 the action had been brought, but to the district in which defendant 
 resided, the objection that the district to which the transfer was made 
 did not adjoin the district in which the action was brought was waived 
 and could not be raised for the first time on appeal from a judgment 
 in favor of plaintiff. Lesser v. Adolph, 46 Misc. Rep. 265. 
 
 Proof of damages for personal injuries; judgment not reversed if the 
 damages are warranted by undisputed testimony; effect of failure to 
 make timely objection. — In an action for damages for personal injuries, 
 where the damages recovered were $200 and the injuries sustained by
 
 120 Costs and Fees. §§ 330-332. 
 
 the plaintiff were severe and required the services of a physician for 
 several days, for which services the bill was $40, such damage may 
 have been based wholly on the testimony as to plaintiff's injuries 
 and the consequent pain and suffering and the value of medical services. 
 Hence, although in plaintiff's testimony as to his weekly earnings he 
 included the profits of three men employed by him as painters, the 
 judgment should not be reversed for the sole reason that there is a 
 possibility that the judgment comprehended a minute portion of said 
 profits. To do so would be to thwart justice and offer a premium on 
 appeals. An objection to plaintiff's testimony that his average earn- 
 ings were $21 a week on the ground that such answer is " speculative 
 and remote " is not well taken, nor is it made in time when taken 
 after the testimony is in. Tanzer v. New York City Ry. Co., 46 Misc. 
 Rep. 86. 
 
 Sufficiency of testimony; erroneous rulings. — Where in an action to 
 recover the amount deposited upon the making of an oral contract for 
 the sale of certain real estate, the evidence, though conflicting, is 
 sufficient to establish the falsity of defendant's statement in relation 
 to the dimensions of the property, this court under this section will 
 not disturb a judgment for plaintiff because of erroneous rulings in 
 the admission or exclusion of testimony, particularly in relation to 
 the ownership of the property. Lesser v. Adolph, 46 Misc. Rep. 265. 
 
 Notes to section 330, " When Prevailing Party Entitled to Recover 
 
 Costs." 
 
 See notes to section 332, " Costs, sums allowed." Notes to section 
 26, "Action, how commenced." Notes to section 248, " Nonsuit, when 
 authorized." 
 
 Notes to section 332, "Costs; Sums Allowed." 
 
 Costs to defendant upon voluntary discontinuance by plaintiff; inter- 
 pretation of sections 248 and 332, Municipal Court Act. — Blum v. 
 O'Connor, N. Y. Law Journal, July 1, 1903, Supreme Court, Appellate 
 Term, June, 1903, opinion by Freedman, P. J. This case is not reported 
 elsewhere. See also Barry v. Winkle, 36 Misc. Rep. 171; Levine v. 
 Haliner, 62 App. Div. 195; McCuskie v. Eendrickson, 125 N. Y. 555. 
 
 Judgment when it is on the merits; motion to amend it; when a de- 
 fendant is entitled to costs. — Where the defendant in an action to 
 recover the contract price of certain work which, by the terms of the 
 contract, was to be completed on or before August 19, 1903, denies that 
 the work has ever been completed according to the contract, and inter- 
 poses a counterclaim for damages incident to the work, and the justice 
 before whom the case was tried without a jury renders a decision 
 " dismissing the complaint on the ground this action is prematurely 
 brought, the work not being completed according to the contract, and
 
 § 341. Costs and Fees. 121 
 
 judgment for the defendant on the counterclaim for the sum of $25.00 
 without costs," such judgment operates as a dismissal of the complaint 
 upon the merits. In such a case the defendant is entitled, under sub- 
 divisions 2 and 5 of section 332 of chapter 580 of the Laws of 1902 
 (The Municipal Court Act), to $15 costs. Reugamer v. Cieslinskie, 
 104 App. Div. 135. 
 
 What necessary to recover costs. — The only appearance of defendant 
 being by an indorsement on the summons he is not entitled to costs 
 under this section. A verified pleading or a written notice of appearance 
 by an attorney-at-law is absolutely necessary to such costs. Rice v. 
 Hogan, 45 Misc. Rep. 400. 
 
 § 341. Taxation of costs. — Where judgment has been ren- 
 dered by the justice, costs must be taxed by the clerk and in- 
 serted in the judgment. Before any item of costs other than 
 the costs fixed by the express provision of law or granted by 
 the justice or fees paid to the clerk in the action are allowed, 
 the party must show by his affidavit, or that of his attorney, 
 that the item was actually and legally paid and incurred. 
 All items of cost must be entered by the clerk in the docket 
 book kept by him. The clerk shall likewise tax costs allowed 
 by the appellate court, and the prospective fees of the county 
 clerk and sheriff, namely a charge for docketing judgment 
 and issuing an execution, and for receiving and returning 
 one execution thereof. (As amended by Laws 1903', chap. 
 144.) 
 
 Notes to section 341. 
 
 Costs of appeal to be taxed by clerk of this court; no time limit; 
 judgment for same; mandamus. — This is a motion for a writ of 
 peremptory mandamus to direct a clerk of the Municipal Court of the 
 city of New York to tax a bill of costs. The clerk has refused to do 
 so, in the face of the objection of opposing counsel that the taxation 
 of the bill was noticed more than twenty days after the docketing of 
 the judgment of the Municipal Court and after the defendant had 
 appealed from that judgment. It appears that a judgment was entered 
 in the Municipal Court, from which plaintiff appealed to the Appellate 
 Term. The Appellate Term reversed the judgment, with costs to the 
 appellant to abide the event. The second trial was had and judgment 
 awarded the plaintiff, with costs. The bill of costs sought to be taxed 
 represents the costs resulting from the reversal of the first judgment 
 by the Appellate Term and accruing to the plaintiff by reason of his 
 success upon the second trial. I see no occasion for their insertion in
 
 122 Costs and Fees. §§ 342-346. 
 
 the judgment docketed in the Municipal Court as a result of the second 
 trial nor any necessity for their taxation within twenty days after 
 the rendition of the judgment of the trial justice. Section 341 of the 
 Municipal Court Act (chap. 580, Laws of 1902) provides that "the 
 clerk shall likewise tax costs of the appellate court." The costs here 
 sought to be taxed are such costs. No time limit is fixed, nor is there 
 any provision in tie statute that the same shall be inserted in the 
 judgment resulting from the second trial. The clerk should have 
 taxed the costs and entered judgment for the amount thereof. The 
 motion is granted, with $10 costs. Kroder v. Mangin, N. Y. Law Jour- 
 nal, June 4, 1903, Supreme Court, Special Term, Blanchard, J. 
 
 Notes to section 342, " Review of Taxation." 
 
 Appeal must be from judgment. — The appeal contemplated in section 
 342 of the Municipal Court Act relating to the review of a taxation 
 of costs is an appeal from the judgment and not an appeal from the 
 separate order reviewing the taxation. Semble, that as it is the prac- 
 tice in the Municipal Court, after the affirmance of a judgment by the 
 Appelate Division, to enter a new judgment containing the costs upon 
 appeal, the remedy of the party claiming that an excessive amount of 
 costs was allowed is to appeal to the Appellate Division from so much 
 of the judgment as awards the item which he deems to be excessive. 
 Spiegelman v. Union Ry. Co., 95 App. Div. 92. 
 
 Notes to section 344, " Costs; Affidavit Respecting Disburse- 
 
 ments." 
 
 Affidavit; witnesses. — Section 344 of the Municipal Court Act for- 
 bids allowance of a charge for attendance of witnesses without an 
 affidavit stating the number of days of actual attendance. Topken v. 
 Cunard Steamship Co., 43 Misc. Rep. 675. 
 
 Costs of appeal to Appellate Term not taxable when cause not brought 
 to hearing. — Costs of an appeal to the Appellate Term cannot be taxed 
 on an appeal from the Municipal Court of New York for failure to 
 cause the return to be filed. Section 345 of the Municipal Court Act 
 forbids costs to either party if the appeal be dismissed because neither 
 party brings it to a hearing. Poggenberg v. Mest'aniz, 46 Misc. Eep. 
 110. 
 
 Notes to section 346, "Costs upon Appeal; Amount." 
 
 Exemption as to costs on appeal by the city in action to recover 
 a penalty. — The concluding part of section 29 of the Municipal Court 
 Act provides that " no fees or costs shall be demanded of the said 
 city of New York or any board or officers thereof in any such suit or 
 proceeding." The words " any such suit or proceeding " refer to an 
 action or proceeding to recover a penalty for the violation of any laws 
 or ordinance brought in the manner authorized by section 29. In the
 
 §§ 356-363. Costs and Fees. 123 
 
 case at bar the plaintiff and appellant, upon its defeat in the court 
 below, had the benefit of the concluding part of the sentence, and it is 
 extremely doubtful whether the exemption as to costs covers the fur- 
 ther aggressive proceeding by the appeal. To have the question which 
 is presented in a number of other cases before us settled, the costs of 
 the appeal will be imposed in the order of affirmance and the appellant 
 may have leave to appeal to the Appellate Division. Health Depart- 
 ment of the City of New York v. Owen, Supreme Court, Appellate Term, 
 Freedman, P. J., Bischoff and Blanchard, JJ., N. Y. Law Journal, 
 December 11, 1903. Reported in 42 Misc. Rep. 221, as to action to 
 recover a penalty from a physician for failure to report facts relative 
 to birth of a child as required by Charter, section 1237. 
 
 Notes to section 356, " Fees in Summary Proceedings." 
 
 Costs on discontinuance. — Where a landlord voluntarily discontinues 
 before final submission summary proceedings taken by him in the 
 Municipal Court of the city of New York since the passage of Laws 
 1902, chapter 580, the tenant is entrtled as costs to his actual dis- 
 bursements to the extent of $10 besides the fees of any witnesses at- 
 tending from another county, and this under Code Civil Procedure, 
 section 3076, subdivision 2. Cohen v. Melle, 43 Misc. Rep. 79. 
 
 § 350. Fees on docket of judgment, in a county clerk's office. 
 
 — Repealed by Laws 1903, chap. 144. 
 
 Notes to section 361, "Saving Clause." 
 
 Right to appeal reserved. — The right of a person who, prior to the 
 time when the New York Municipal Court Act (Laws 1902, chap. 580, 
 § 257) took effect, had recovered a judgment in that court by default 
 to appeal from an order opening the default and setting aside the judg- 
 ment, was preserved by section 361 of the Municipal Court Act. Such 
 an appeal no longer lies. Johnson v. Manning, 80 App. Div. 368. 
 
 Notes to section 363, " Sections of the Code not Applicable." 
 
 See section 20, " Code, Rules of Supreme Court Applicable ; when."
 
 INDEX. 
 
 Account, authority to order exhibition of, 26. 
 exhibition of, may be ordered, 88. 
 stated, when not proven, 35. 
 Action, amount of sum to recover less than $250 or $500, where to be 
 brought, 32. 
 changing cause of, 88. 
 by the city of New York for the recovery of a penalty, summons 
 
 and costs in, 26. 
 by city of New York, where to be brought, 67. 
 jurisdiction of, by and against the city of New York, 31. 
 in what district to be brought, 65, 66, 67. 
 erroneous transfer of, appeal from order, 119. 
 fictitious name, when judgment and execution void, 106, 108. 
 jurisdiction of, 29-32. 
 
 to direct or set aside verdict, vacate, amend, or modify judg- 
 ment, or final order in, 31. 
 when may be continued before another justice, 64. 
 by nonresident plaintiff against foreign corporation, where to be 
 
 brought, 67. 
 against person for refusing to pay wages of judgment debtor, 42, 
 
 46, 55, 86, 105, 107. 
 removal of repealed, 56, 63. 
 tort, when will will be deemed one in, 85. 
 transfer of, how made, 66, 67. 
 Adjournment longer than eight days, undertaking, justification of sure- 
 ties, 90. 
 Administrator, jurisdiction in action against, 31. 
 
 Affidavit to obtain substituted service of summons, what to state, 72. 
 amending as to service of summons, 73. 
 to obtain attachment, what to contain, 77. 
 to obtain warrant of attachment insufficient, 77. 
 contents of, when third party interpleads in action to replevy 
 
 chattel, 79. 
 attached to appellant's brief on appeal not considered, 116. 
 attendance of witnesses, no charge allowed unless produced, stat- 
 ing number of days of actual attendance, 122. 
 Affirmative defenses, payments, 95. 
 Agent, money had and received by, acceptance, discharge, 95. 
 
 [125]
 
 1 -2 6 Index. 
 
 Alias. (See Summons.) 
 
 Amendment of technical errors in pleading, 47, 55, 56. 
 
 of affidavit of service of summons, 73. 
 
 of petition or answer in summary proceedings to recover possession 
 of real property, 30. 
 
 of pleadings changing cause of action, 88. 
 
 of answer in summary proceedings, 90. 
 Amount, action to recover less than $250 and costs, or $500 and costs, 
 
 where to be brought, 32. 
 
 bill of particulars over $500, 35. 
 
 of counterclaim in excess of court's jurisdiction, 87. 
 
 to be levied upon must be stated in execution against wages or 
 salary of judgment debtor, 105. 
 
 over jurisdiction, remitting excess, 35, 36, 97, 99. 
 
 of sum of money to confer jurisdiction, 29. 
 
 value of chattels, how determined as to jurisdiction, 44. 
 Answer. (See also Pleading.) 
 
 amendment of, in summary proceedings, 30, 96. 
 
 negative pregnant, 86. 
 
 new matter, 86. 
 
 office address, or place of business to, 87. 
 
 payment is an affirmative defense and must be pleaded, 87. 
 
 usury is a personal defense, 87. 
 Apartment hotel lien, 45. 
 Appearance by person forbidden to practice, 73. 
 
 by attorney necessary to obtain costs, 73, 85, 121. 
 Appeal, right to, preserved, 123. 
 
 when must be taken, 112. 
 
 how taken, 112. 
 
 rules for the hearing of, 112, 113, 114, 115, 116. 
 
 from this court, 112-115. 
 
 from City Court of the city of New York, 112-115. 
 
 Appellate Term, Supreme Court, 115. 
 
 Appellate Division, Second Department, 116. 
 
 delay in deciding, in Second Department from this court, ex- 
 plained, 116. 
 
 affidavits attached to appellant's brief, not considered, 116. 
 
 right to file amended affidavit of service, cannot be considered on, 
 72, 73. 
 
 Appellate Division has power to modify judgment in action to 
 recover a chattel, 80. 
 
 appellant's brief cannot controvert return, 91, 119. 
 
 appellate court concluded by return, 91, 119. 
 
 from counterclaim in excess of the court's jurisdiction, 87. 
 
 corrected judgment, 116.
 
 Index. 127 
 
 Appeal — (Continued) : 
 
 effect of failure to make timely objection, 119. 
 
 exceptions to be heard in first instance, power of Appellate Term 
 and Appellate Division, history of, 117. 
 
 erroneous transfer of action, 119. 
 
 judgment by default is appealable, 98, 101. 
 
 judgment by default is not appealable, 98, 101, 117, 118. 
 
 jurisdiction of summary proceedings may be raised for the first 
 time on, 47. 
 
 what orders are appealable, 101, 117. 
 
 order vacating attachment, not appealable, 79. 
 
 from order, erroneous transfer of action, 119. 
 
 order denying motion to vacate order of arrest not appealable, 75, 
 101, 117. 
 
 order opening default is not appealable, 101, 123. 
 
 order sustaining or overruling a demurrer not appealable, 118. 
 
 order vacating judgment not rendered in time is appealable, 101. 
 
 return and statements of brief, 119. 
 
 statutory, 119. 
 
 to review taxation of costs, must be from the judgment, 118, 122. 
 
 sufficiency of testimony, erroneous rulings, 120. 
 
 in summary proceedings to recover possession of real property, 30. 
 
 vacating court's void judgment, the order is appealable, 91, 119. 
 
 waiver of, service of amendments to case, 119. 
 Application, ex parte, 63. 
 Arrest. (See also Execution.) 
 
 in what cases to be granted, 73. 
 
 cannot be had in action on instalment payments, 84. 
 
 discharge of defendant from, when, 98. 
 
 execution against the body, subsequent issue, 106, 108. 
 
 of female, when, 73. 
 
 in action to foreclose a lien, what must be alleged in order to 
 obtain order of, 83, 84. 
 
 judgment where defendant liable to, execution must be issued, 98, 
 106. 
 
 jurisdiction to issue order of, 31. 
 
 limit of amount, in certain cases, 74. 
 
 order denying motion to vacate is not appealable, 50, 65, 101. 
 
 sale of entire retail stock to one person, 75. 
 Articles used by undertaker in business, exemption from execution, 106. 
 Artisan's lien dependent on continued possession, 44. 
 Assault and Battery, no jurisdiction to recover damages in action for, 
 31. 
 
 on street car, the action is for personal injuries, 40.
 
 128 Index. 
 
 Assignment of cause of action to enable suit to be brought in a par- 
 ticular court, 25, 26. 
 
 attack on, when, 86. 
 Association, liability of political, for debts, 41. 
 Attachment, affidavit to obtain warrant of, what to contain, 75. 
 
 defendant not personally served, judgment by default, 47. 
 
 jurisdiction to issue warrant of, 31. 
 
 effect of failure of return to excuse due service of summons, 76. 
 
 order vacating, not appealable, 79. 
 
 warrant of, what to contain, 75. 
 
 warrant of, must be signed by plaintiff's attorney, 77. 
 
 note questioning above, 77. 
 
 when summons has not been personally served, 76, 78. 
 Attendant, rules relative to, 61. 
 
 Attorney-General may take out summons in action for penalty, and not 
 pay fees, 26, 70. 
 
 Bail, cash stands in place of, 74. 
 
 Bankruptcy, guarantor for rent held liable, 33. 
 
 does not terminate a lease, 33. 
 Bias or prejudice of justice, 90. 
 Bill of discovery, not authorized, 26. 
 Bill of particulars, defined, 51, 84. 
 
 power to order, governed by Municipal Court Act, 84. 
 
 for over $500, limit of amount of jurisdiction, 35. 
 
 is an amplification of the complaint, 40. 
 Board of estimate, etc., to provide for expenses of courts, 15, 19, 24. 
 Boarding-house keepers, lien, 45, 81. 
 Board of justices, duties of, etc., 57. 
 
 meetings of, to be public, 57. 
 
 to make rules, 57. 
 Bond, bastardy or abandonment, jurisdiction in action upon, 29. 
 
 jurisdiction in action upon a surety bond, 29. 
 
 for payment of money, jurisdiction in action upon, 29. 
 
 of a marshal, in what court may be prosecuted, 110. 
 
 of a marshal, jurisdiction in action upon, 29. 
 
 of marshal, action on, no jurisdiction beyond $500, 51. 
 
 action against surety upon a marshal's, 110. 
 
 what is necessary to obtain judgment against surety, 110. 
 
 jurisdiction in action against foreign corporation as surety upon, 
 of a marshal, 111. 
 Books, discovery of, not authorized, 26. 
 
 penalty for refusal to exhibit stock, 44. 
 
 power to order examination of, 88,
 
 Index. 129 
 
 Breach of contract. (See Contract.) 
 
 Brief, statements in appellant's, not supported by return, not consid- 
 ered on appeal, 119. 
 Brokers' commissions, when not entitled to commission on a loan, 33. 
 
 authority to sell, 33. 
 
 constitutionality of Penal Code requiring written authority to sell, 
 33, 34. 
 
 construction of section 640d, Penal Code, 34. 
 
 sales for future delivery, 35. 
 Brooklyn, election of justices in borough of, 11. 
 
 districts in, 21. 
 Building contract, damages for breach of, 35. 
 Business, limitations of the legislative power to regulate, 33. 
 
 Cabs standing in front of hotels, license fee, 43. 
 Calendar of reserved cases, 57. 
 
 restoring case to, 63, 73, 98. 
 Carrier, measure of damages against, 36. 
 
 failure to make delivery within reasonable time, proof of notice, 93. 
 
 liability for value of freight destroyed by fire, 93. 
 
 place of delivery, how determined, 93. 
 
 custom not admissible to vary terms of contract, 93. 
 
 proof necessary to establish negligence against, 93. 
 
 receipt for goods construed, 93. 
 Cartmen, public, when not entitled to lien, 46. 
 Case stricken from calendar, when can be restored, 63. 
 
 restoring to, 73. 
 Cause of action, assignment of, 25, 26. 
 
 changing, 88. 
 Challenges to jurors, 94. 
 Chattels, jurisdiction in action to recover, 30. 
 
 jurisdiction in action to foreclose a lien upon a, 30. 
 
 jurisdiction in replevin to recover, how determined, 44. 
 
 in action to recover a, interpleader permitted, 55. 
 
 failure of defendant to demand judgment for return of a, does not 
 prevent subsequent action, 79. 
 
 omission to demand return of, 80. 
 
 neglect to demand return of, 81. 
 
 when mortgagee should be made party defendant in action to fore- 
 close, 81. 
 
 when no body execution to issue in action to foreclose, 81. 
 Chattel mortgage, section 139 does not prevent taking possession, 36 
 
 power of partner to execute to borrow money, 39. 
 
 when action is not upon, 45, 82. 
 
 title of third person in, 95.
 
 130 Index. 
 
 City Court of the city of New York, action to recover less than $250 
 and costs cannot be brought in, 32. 
 amended rule as to advancing action to recover less than $250 to 
 the special calendar, 32. 
 City of New York, summons and costs in actions for recovery of a 
 penalty, 2G. 
 jurisdiction in aitions against the, 31. 
 action by or on behalf of, where to be brought, 67. 
 Attorney-General and Corporation Counsel may issue summons in 
 
 action by, 70. 
 question as to costs on appeal in action to recover a penalty, 122. 
 Clerks, appointment of, 15. 
 
 and assistant clerks, removal of veteran, 25. 
 continuance in office of certain, 15, 23. 
 duties of the, 109. 
 payment of salaries of certain, 16. 
 
 to keep office open from 9 a. m. to 4 p. m., except July and Au- 
 gust, 109. 
 rules relative to, 61. 
 
 to receive all money collected by marshal, 111. 
 to pay over money to person entitled thereto on demand, 112. 
 to hold costs and disbursements of appeal to abide event thereof, 
 
 112. 
 must tax costs and insert them in the judgment, 121. 
 must enter costs in his docket book, 121. 
 must tax costs and prospective fees allowed by the appellate court, 
 
 121. 
 must tax costs of appeal, 121, 122. 
 Code, rules of Supreme Court, when applicable, 64. 
 Collision, when question of negligence for the jury, 94. 
 Commission of salesmen, construction of contract for, 41. 
 Commissioner of public works to provide furniture, books, blanks, etc., 
 for courts, 15, 20, 24. 
 of sinking fund to secure rooms for courts, 15, 20, 24. 
 Complaint. (See also Pleading.) 
 
 what must be alleged in action against person for refusing to pay 
 wages of judgment debtor, 86. 
 Compromise, party may buy his peace, 85, 94. 
 Comptroller to pay salaries, 16, 20, 24. 
 Conditional sale of personal property, conversion based on breach of 
 
 contract for, 36. 
 Confession, jurisdiction to render judgment by, 31. 
 
 jurisdiction to vacate, remand, or modify judgment by, 31. 
 Consent, jurisdiction to render judgment by, 31. 
 Continuance of action before another justice, 64.
 
 Index. 131 
 
 Constitutionality of Penal Code requiring written authority for broker 
 to sell, 33, 34. 
 
 limitations of legislative power to regulate business, 33. 
 
 of additional Personal Property Exemption Law, 106. 
 
 as to order of arrest, 74. 
 Contract, breach of, jurisdiction to recover, in sale of a horse, 47. 
 
 assault on street car, actions for breach of, 40. 
 
 for commissions by salesmen, construed, 41. 
 
 damages, breach of, 37. 
 
 effect of prior, 33. 
 
 express, and quantum meruit in pleading, 88. 
 
 evidence of custom not admissible to vary terms of, 93. 
 
 interpleader in action permitted, 55. 
 
 for manufacture of goods, statute of frauds, 41. 
 
 §wasi-jurisdiction to recover voluntary payment of a fine, 40, 43. 
 
 ratification of contract, 41. 
 
 to remove building, damages for breach of, 35. 
 
 of traveling salesman, breach of, 41. 
 
 usurious, when void, 87. 
 
 violation of penal statute in approach to, 34. 
 Conversion based on breach of contract for the conditional sale of per- 
 sonal property, 36, 82. 
 
 demand, when necessary, 36, 82. 
 
 infancy as a defense to an action, 39. 
 Copartnership. (See Partnership.) 
 Corporation. (See also Association; and Foreign Corporation.) 
 
 jurisdiction in actions against domestic or foreign, 31. 
 
 verification of petition in summary proceedings by domestic cor- 
 poration, 47. 
 
 ordinance, where action to be brought, 67. 
 
 no costs in action for penalty for violation of, 70. 
 
 foreign corporation, action against, by nonresident plaintiff, in what 
 district action to be brought against, 67. 
 
 proof necessary in action against, 51. 
 Corporation counsel may take out summons in his own name, etc., and 
 
 not pay fees, 27, 70. 
 Costs in actions by city of New York for recovery of penalties, 26, 70. 
 
 appearance by attorney, necessary to obtain, 73, 85. 
 
 of appeal to Appellate Term not taxable when cause not brought 
 to hearing, 122. 
 
 clerk must tax prospective fees, 121. 
 
 to defendant upon voluntary discontinuance by plaintiff, 68, 96, 120. 
 
 discontinuance of summary proceedings, 68, 96, 123. 
 
 when defendant is entitled to, 120. 
 
 what necessary to recover, 121.
 
 132 Index. 
 
 Costs — (Continued) : 
 
 exemption as to, on appeal by city in action to recover penalty, 122, 
 123. 
 
 fees on docket ot judgment in county clerk's office, repealed, 123. 
 
 notice of appearance by attorney, necessary to obtain, 85. 
 
 right to discontinue on payment of, 68. 
 
 taxation of, 121. 
 
 where verdict is set aside, 99. 
 
 verified pleading, necessary to obtain, 85. 
 Court, expenses of municipal, 15, 19. 
 
 as distinguished from the justice, 26. 
 
 order by, on opening default, 98. 
 
 order, what it should contain, 63. 
 
 power of, to order exhibition of accounts, 88. 
 
 rooms, furniture, and stationery, how provided for, 16. 
 
 rules of municipal, have force of law, 25. 
 Counsel and judge in examination of witnesses, 94. 
 Counterclaim, new matter in answer, 86. 
 
 where amount is in excess of court's jurisdiction, 87, 117. 
 County Court of Kings county, action to recover less than $250 and 
 
 costs cannot be brought in, 32. 
 Criminal conversation, no jurisdiction in action to recover damages 
 
 for, 31. 
 Custom, evidence of, not admissible to vary terms of contract, 93. 
 
 Damages for breach of contract, 37. 
 
 employment and wages, 37. 
 
 jurisdiction to recover, in action for breach of contract, 29. 
 
 jurisdiction to recover, in action to recover a chattel, 30. 
 
 jurisdiction to recover, in action for fraud and deceit, 30. 
 
 jurisdiction to recover, in action for an escape, 30. 
 
 jurisdiction to recover, in action for personal injuries, 31. 
 
 no jurisdiction to recover, in certain actions, 31. 
 
 measure of, against carrier, 36. 
 Death or removal of justice not to impair proceedings, 64. 
 Deceit, jurisdiction in action for damages for, 30. 
 
 in sale of a horse, 47. 
 Decision by another justice cannot be set aside, 50, 52, 54, 63, 90. 
 
 by justice must be within fourteen days, 90. 
 
 jurisdiction is lost, if not decided within fourteen days, 55, 90. 
 
 jurisdiction of another justice, reviewing exception to the rule, 
 90, 99. 
 Default, jurisdiction to open, 31. 
 
 court may impose conditions upon opening, 101. 
 
 judgment may stand as security on opening, 100.
 
 Index 133 
 
 Default — (Continued) : 
 
 opening of, must be by order of the court, 25, 26. 
 
 issue not joined when defendant, is taken, 85. 
 
 in attachment case where defendant not personally served, 47. 
 
 reviewing decision of another justice, exception to the rule, 91. 
 
 demand for jury trial after opening, 91, 98, 100. 
 
 judgment by, is appealable, 98, 101, 117. 
 
 judgment by, is not appealable, 98, 101, 117. 
 
 order opening, is not appealable, 101. 
 
 order by the court on, 98. 
 
 setting down case for trial, 99. 
 Defense, payment is an affirmative, 87, 95. 
 Demand, when necessary for conversion, 36. 
 
 for rent, defect in allegation of service of notice of, 47. 
 
 for jury trial after opening default, 91. 
 
 on transfer to proper district, 68. 
 Demur, when defendant may, 87. 
 Denial. (See General Denial.) 
 Discontinuance, when leave refused, 68, 95, 96. 
 
 of summary proceedings, costs on, 68, 96, 123. 
 
 voluntary by plaintiff, costs on, 68, 96. 
 
 rights to, upon payment of costs, 68, 97. 
 Discovery of books and papers not authorized, 26. 
 Dismissal on the merits, judgment of, 97. 
 
 for nonappearance, restoring case to calendar, 98. 
 Districts, in borough of Manhattan, 12, 16. 
 
 in borough of Brooklyn, 21. 
 
 in what, action to be brought, 65. 
 Dog, bite of, what must be shown, 49. 
 Domestic corporation. (See Corporation.) 
 
 Domestic Commerce Law, unlawful detention of milk cans, 43. 
 Duress, what allegations necessary, 40. 
 
 pleading, 86. 
 
 Election of justices, 11, 14, 19, 20. 
 
 Employment and wages, damages, 37. 
 
 Escape from jail liberties, jurisdiction in action to recover damages 
 
 for, 30. 
 Evidence of account stated, when not proven, 35. 
 
 cost price, when evidence of value, 45. 
 
 of custom not admissible to vary terms of contract, 93. 
 
 new trial upon ground of newly discovered, 31. 
 
 parol, when inadmissible as to omission in lease, 54. 
 
 pleading as, 95. 
 
 proof necessary to establish negligence of carrier, 93.
 
 134 Index 
 
 Evidence — (Continued): 
 
 proof of notice to consignee of arrival of goods, 93. 
 sufficient to establish liability of wife for necessaries, 38. 
 of value of lost goods, 96. 
 verdict against weight of, new trial, 99, 100. 
 Execution, additional personal property exempt from, in certain cases, 
 103, 106. 
 amount to be levied upon must be stated in execution against 
 
 wages or salary of a judgment debtor, 105. 
 arrest must be issued where defendant liable to, 98, 106, 108. 
 against body or person, where cannot be issued unless order of 
 arrest has been issued, 65. 
 when none can issue, 81. 
 in action to foreclose lien, 83. 
 subsequent issue, 106. 
 constitutionality of Additional Personal Property Law, 106. 
 exemption from execution of salary of policeman, 107. 
 
 of salary of public servant, 107. 
 failure to issue in time, subsequent issue of, 108. 
 fees, prospective, of county clerk to be omitted when issued to 
 
 a marshal, 102. 
 fictitious name; when the judgment is fatally defective and execu- 
 tion issued thereon is void, 54, 106, 108. 
 upon a judgment for necessaries, rent due is not necessaries sold, 
 
 107. 
 jurisdiction to grant or vacate stay of, 31. 
 how issued, 102. 
 motion for order granting leave to issue, under section 1391, Code 
 
 Civ. Proe. ; parties; notice, 107, 108. 
 time to be issued, within what, 102, 10S. 
 
 failure to issue in, 75, 108. 
 transcript issued, none to issue from this court after, 102. 
 
 not to be issued while execution from this court is not re- 
 turned, 102. 
 trust fund; will, 108. 
 Executor, jurisdiction in action against, 31. 
 Exempt property, additional, 27, 76, 103 
 
 articles used by undertaker in business, 106. 
 Exemption from jury duty, 92. 
 Expenses of courts, 15, 19, 20. 24. 
 
 jurisdiction in action to recover for personal injury, 31. 
 Ex parte applications, 25, 26, 63. 
 
 False imprisonment, no jurisdiction to recover damages for, 31, 50. 
 Female, no arrest of, except for willful injury to person or property, 73.
 
 Index 135 
 
 Fees. (See also Costs.) 
 
 for summons not to be paid by attorney-general or corporation 
 counsel, 27. 
 
 for cabs standing in front of hotels, license, 43. 
 Fictitious name, when judgment is fatally defective and an execution 
 
 issued thereon is void, 54, 106, 108, 109. 
 Fine, jurisdiction in action to recover a, 29. 
 
 voluntary payment of, under a mistake of law cannot be recovered, 
 40, 43, 44. 
 Fire department, failure to provide such means of communication as the 
 
 fire commissioner shall direct, 43. 
 Foreclosing lien upon a chattel, jurisdiction in action for, 30. 
 Foreign corporation. (See also Corporation.) 
 
 jurisdiction in action against, 31 
 
 as surety upon a city marshal bond, 37, 42. 
 Fraud. (See also Statute of Frauds.) 
 
 jurisdiction in action for, 30. 
 
 new trial on the ground of, 31. 
 
 cannot be shown under a general denial, 39. 
 
 and deceit in sale of a horse, 47. 
 
 in the sale of merchandise in bulk, 47. 
 Furniture of courts, how provided for, 16, 20, 24. 
 
 Garage-keeper's lien, 45. 
 
 General denial, fraud cannot be shown under a, 39. 
 
 assignment, attack of, under a, 86. 
 Guarantor for rent held liable in bankruptcy, 33. 
 
 Horse, breach of warranty in the sale of a, 47. 
 
 Hotel liens, 45. 
 
 Household goods no longer excluded from law relating to conditional 
 
 sales agreements, 82. 
 Husband. (See also Married Women; Wife.) 
 
 or wife, no jurisdiction in action to recover damages for loss of 
 
 society of, 31. 
 and wife, medical services, 37. 
 
 Infancy as a defense in action for conversion, 39. 
 Immaterial variance in pleading to be disregarded, 88. 
 Imprisonment no jurisdiction in action for false, 50. 
 Injury, personal, proof of damages for, 119. 
 
 to passenger on street car, when action for breach of contract and 
 net for assault, 50. 
 Inn liens, 45. 
 Installments due upon a bond, jurisdiction in action upon, 29.
 
 136 Index 
 
 Interpleader, when permitted, 55, 89. 
 
 third party may interplead in action to replevy chattel, 79. 
 Interpreters, continuance in office of certain, 15. 
 
 payment of salaries of certain, 1G. 
 Issue, not joined when defendant's default is taken, 85. 
 
 when not joined, 85. 
 
 Jail liberties, jurisdiction to recover damages from an escape from the, 
 
 30. 
 Judgment, amending docket of, 103. 
 amending judgment, 97, 120. 
 
 arrest for, where defendant liable to, execution must be issued, 98. 
 by confession, jurisdiction to render judgment by, 31. 
 by consent, jurisdiction to render, 31. 
 debtor, action against person for refusing to pay wages to, 46, 55, 
 
 86, 105 
 by default is appealable, 98, 101, 117. 
 
 not appealable, 98, 101, 117. 
 
 when cannot be rendered by, 76, 78. 
 
 in attachment action where defendant not personally served, 
 47, 78. 
 demand for jury trial after default, 91. 
 by default, vacating. (Sec Default.) 
 of dismissal on the merits at close of case, 97. 
 erroneous nonsuit, 96. 
 
 erroneous ruling, when will not be disturbed for, 120. 
 excess of amount of jurisdiction, remission of, 97, 98. 
 execution on, how issued, 102. 
 
 fees on docket of, in county clerk's office, repealed, 123. 
 fictitious name, when defective, 54, 106, 108. 
 jurisdiction; amotint involved; remission of excess, 97, 98. 
 
 in action upon a, 29. 
 
 to render, in an action, 31. 
 
 to vacate, amend, or modify a, 31. 
 lien of, 103 
 
 merits, when it is on the, 97, 120. 
 mechanic's lien, in action to enforce, 30. 
 motion to amend, 97, 120. 
 
 additional personal property exempt from, 27, 103. 
 for plaintiff on the pleadings when proper, 86, 8S, 90. 
 redocketing amended judgment, 103. 
 remitting excess of amount over jurisdiction, 98. 
 may stand as security on opening default, 100. 
 
 supplementary proceedings on, transcript filed, jurisdiction of Su- 
 preme Court, 99, 102.
 
 Index 137 
 
 Judgment — (Continued) : 
 
 Supreme Court cannot vacate judgment of this court, 52, 99, 102. 
 
 time of making motion to set aside, 100. 
 
 not rendered in time, vacating, 100, 102. 
 
 vacating court void, 91, 119. 
 
 because material witness did not appear on trial, 100. 
 when Supreme Court cannot, 52, 99, 102. 
 
 on verdict, entering, 92. 
 
 void, vacating, 91, 119. 
 Judge. (See Justice.) 
 
 Jurisdiction, action to recover less than $250 or $500 and costs, where 
 to be brought, 32, 51, 56, 111. 
 
 amount involved; remission of excess, 35, 53, 97, 98. 
 
 assault and battery, action for damages for, no, 48, 55. 
 
 attachment, when court has no, 78. 
 
 bill of particulars over $500, 35. 
 
 chattel mortgage, when action is upon a, and where it is not, 83. 
 
 counterclaim, where it is in excess of the court's, 87, 117. 
 
 damages, action to recover, in certain actions, no, 31. 
 
 excess of, remitting, to retain, 35, 53, 97, 98. 
 no equity, 54. 
 
 false imprisonment, action to recover damages for, no, 50. 
 
 against foreign corporation as surety upon a city marshal's bond, 
 37, 42, 111. 
 
 is lost unless decision filed within fourteen days, 55, 90. 
 
 of the Municipal Court of the city of New York, 29-32. 
 
 no, to recover damages in certain actions, 31. 
 
 objection to, 32. 
 
 of action against person indebted to judgment debtor, 42, 46, 55. 
 
 quasi contract, voluntary payment of a fine, 40, 43. 
 
 remitting excess of amount to return, 35, 53, 97, 98. 
 
 in replevin, how determined, 44. 
 
 under section 20, 26, 64. 
 
 substituted service of summons, proof to acquire, 32. 
 
 of summary proceedings may be varied for the first time on ap- 
 peal, 47. 
 
 not lost by raising question of title collaterally, 47, 89. 
 
 to direct or set aside verdict or grant or deny motion for new trial 
 in summary proceedings to recover possession of real property, 30. 
 
 to set aside final order in summary proceedings, 47. 
 
 waiver of, 32. 
 Jurors, challenge to, 94. 
 Jury, credibility of expert witness is to be determined by the jury, 94. 
 
 exemption from jury duty, 92. 
 
 when question of negligence for collision is question for, 94.
 
 13S Index 
 
 Jury — (Continued) : 
 
 demand for, after judgment by default has been opened, 91, 98, 100. 
 
 penalty for misconduct of officers drawing, 92. 
 
 right and waiver of, 92. 
 
 in summary proceedings to recover the possession of real property, 
 30. 
 
 waiver of, 92. 
 Justice, as distinguished from the court, 26. 
 
 accounts, no power to order, 26. 
 
 action, when may be continued before another, 64. 
 
 to appoint clerks, 15. 
 
 bias or prejudice of, 64, 90. 
 
 board of, duties of, etc., 57. 
 to make rules, 57. 
 
 charge of, when error, 49. 
 
 continuance in office of certain, 15, 23. 
 
 decision of another, cannot be set aside by, 50, 52, 54, 63, 90, 91. 
 
 duty of, to decide within fourteen days, 90. 
 
 discussion or remarks made by, 94. 
 
 has no authority to restore case to calendar, 52, 98. 
 
 discretion of, as to costs in setting aside verdict, 99. 
 
 disqualification of, transfer to another district, 63. 
 
 election of, 11, 14, 19, 20. 
 
 in examination of witnesses, 94. 
 
 exhibition of accounts, no power to order, 26. 
 
 expiration of term of, successor may determine motion, 99. 
 
 jurisdiction is lost by, if not, decision not filed within fourteen days, 
 55, 90. 
 
 payment of salaries of certain, 16. 
 
 power to order exhibition of accounts is conferred upon the court, 
 not the, 88. 
 
 qualification of, 11. 
 
 removal of, 11, 25. 
 
 reviewing decision of another, exception to the rule, 91, 99. 
 
 salary of, 12, 16. 
 
 successor of, may determine motion, 64. 
 
 summary proceedings, has power to set aside final order in, 52. 
 Justification of sureties in undertaking on adjournment for longer than 
 eight days, 90. 
 
 Kings county, County Court of, action to recover less than $250 and 
 costs cannot be brought in, 32. 
 
 Law, voluntary payment of a fine under mistake of, cannot be re- 
 covered, 40, 43, 44.
 
 Index 139 
 
 Lease not terminated by bankruptcy, 33. 
 
 Legislative power to regulate business, limitations on, 33. 
 
 Levy on execution, how discharged pending appeal, 65, 117. 
 
 Libel, no jurisdiction to recover damages in action for libel, 31. 
 
 License fee, cabs standing in front of hotels, 43. 
 
 Lien, artisan's, dependent on continual possession, 44. 
 
 boarding-house keeper's, 45, 81. 
 
 upon a chattel, jurisdiction in action to foreclose, 30. 
 
 on chattels, when mortgagee should be made party defendant, 81. 
 
 contents of notice of, 46. 
 
 defined (person indebted to judgment debtor), 42, 46, 55. 
 
 foreclosure of a, what must allege in order to obtain order of 
 arrest, 83, 84. 
 
 of finder of lost property, 44. 
 
 of garage- keepers, 45. 
 
 of hotel, apartment hotel, inn, boarding and lodging-house keep- 
 ers, 45. 
 
 of lodging-house keeper, 45. 
 
 lost property, finder has, 44. 
 
 mechanic's, jurisdiction of action to enforce a, 30. 
 
 order for repairs of a tenement-house not a, 44. 
 
 of judgments, 103. 
 
 on personal property, execution against the person, when, 65. 
 
 public cartman when not entitled to, 46. 
 
 stallion's services, 46. 
 
 warehouse-keeper's, 45, 46. 
 Lodging-house keeper's lien, 45. 
 Lost property, finder is entitled to, 44. 
 
 Loss of service by reason of personal injury, jurisdiction in action for, 
 31. 
 
 society of husband or wife, no jurisdiction to recover damages 
 for, 31. 
 
 Malicious prosecution, no jurisdiction to recover damages for, 31. 
 Manhattan, districts in borough of, 12, 16. 
 
 election of justices in, 14, 19. 
 Married woman. (See also Wife.) 
 
 right of action for wages, 38. 
 
 evidence as to election to labor on her own account, 38. 
 Marshal, action against surety upon bond of a, 110. 
 
 bond of a city, of Brooklyn, its validity, 110. 
 
 in action against foreign corporation having office in the city 
 of New York as surety for. 111. 
 
 prosecution of bond of, no jurisdiction beyond $500, 51. 
 
 in what court bond of, may be prosecuted, 110.
 
 140 Index 
 
 Marshal — (Continued) : 
 
 bond of, by foreign corporation as surety, jurisdiction as to amount, 
 37, 42. 
 against for contempt, 112. 
 
 when execution may be issued to, 102. 
 
 invalid levy upon goods of a third person. 110. 
 
 jurisdiction of action upon bond of a, 29. 
 
 liability for wrongful levy, 110. 
 
 mayor may suspend and remove, 111. 
 
 payment of money received by, 111. 
 
 must pay same to clerk of court, 111. 
 
 removal and suspension of, 111. 
 
 return of, cannot be controverted by affidavit, 119. 
 Master and servant, what sickness will justify dismissal of servant, 39. 
 Mayor may suspend and remove marshal, 111. 
 
 may delegate to his secretary power and duty of hearing the evi- 
 dence, 111. 
 Medical expenses, jurisdiction in action to recover in action for per- 
 sonal injury, 31. 
 Medical services, husband and wife, 37. 
 Mechanic's lien, jurisdiction of action to enforce, 30. 
 Merchandise in bulk, sale of, 47. 
 
 when sale of entire stock of, is fraudulent, 76. 
 Merits, judgment of dismissal on the, 97. 
 
 when it is upon the, 97. 
 Milk cans, unlawful detention of; Domestic Commerce Law, 43. 
 Mistake of law, voluntary payment of a fine under, cannot be re- 
 covered, 40, 43, 44. 
 Money had and received by defendant's agent, acceptance, discharge, 95. 
 Motion, to open default not reviewing decision of another justice, 91. 
 
 may be determined by successor of judge, 99. 
 
 for order granting leave to issue execution, under section 1391, 
 Code Civ. Proc; parties; notice, 107. 
 
 to set aside judgment, time of making, 100. 
 Municipal Court of the city of New York, board of estimate, etc., to 
 provide for expenses of, 15, 19, 20, 24. 
 
 action to recover less than $250 and costs must be brought in, 32. 
 
 as distinguished from the justice's, 26. 
 
 Name, fictitious, when judgment defective and execution issued thereon 
 
 void, 54, 106, 108, 109. 
 Necessaries sold, rent due is not, 107. 
 
 when wife is liable for, 38. 
 Negligence of physician or surgeon in treatment of patient, 40. 
 
 of carrier, proof necessary, 93. 
 
 collision, when question for the jury, 94.
 
 Index 141 
 
 Newly-discovered evidence, new trial on the ground of, 31. 
 New matter in answer, 86. 
 
 New trial in summary proceedings, court may grant or deny, 30. 
 jurisdiction to grant a, 31. 
 justice can grant in summary proceedings or set aside final order, 
 
 52. 
 verdict against weight of evidence, 53, 100. 
 New York city. (See City of New York.) 
 Nonjoinder of parties in copartnership, 88. 
 Nonresident, who shall be deemed a, 66. 
 
 plaintiff bringing action against foreign corporation, where to be 
 
 brought, 67. 
 plaintiff, action by, against foreign corporation having place of 
 business in the city of New York, in what district action to be 
 brought, 51. 
 Nonsuit, erroneous judgment, 96. 
 Notice, judicial, what court will take, of, 72. 
 of lien, contents of, 46. 
 
 to pay rent, defect in allegation of service of, in summary pro- 
 ceedings, 47. 
 to consignee of arrival of goods, 93. 
 
 Objection, effect of failure to make timely, 119. 
 
 to jurisdiction, 32. 
 
 to nonjoinder of parties defendant in copartnership, 87, 88. 
 Order, appeal from. (See also Appeal.) 
 
 what orders are appealable, 50, 117. 
 
 opening default not appealable, 118. 
 
 sustaining or overruling demurrer, not appealable, 118. 
 
 denying motion to vacate order of arrest not appealable, 50, 117. 
 
 vacating attachment, not appealable, 79. 
 
 court, what should contain, 57, 63. 
 
 by the court on opening default, 98. 
 
 for interpleader, when permitted, 89. 
 
 jurisdiction to vacate, amend, or modify a final, 31, 46. 
 
 summary proceedings, jurisdiction to make final, 31. 
 
 for tenement-house repairs not a lien, 44. 
 
 vacating judgment not rendered in time, 100, 102. 
 Order of arrest, jurisdiction to issue, 31. 
 
 in what cases to be granted, 73. 
 
 order denying motion to vacate, not appealable, 75. 
 
 in action to foreclose lien, what must be alleged in order to obtain 
 an, 83. 
 
 none can be had in action for instalment payments, 84.
 
 142 Index 
 
 Ordinance corporation, where action to be brought, 67. 
 
 no fees to be paid by city of New York in such an action, 122. 
 
 Partner, power of, to borrow money and execute chattel mortgage, 39. 
 Partnership, defect of parties in pleading, 87. 
 Party, third, may interplead in action to replevin chattel, 79. 
 Payment is an affirmative defense, and must be pleaded, 87, 95. 
 Particulars. (See Bill of Particulars.) 
 
 Penalty, action will lie for, although there has been no conviction for 
 misdemeanor, 42. 
 cab standing in front of hotels, 43. 
 Domestic Commerce Law, 43. 
 fire department, failure to provide such means of communication 
 
 as the fire commissioner shall direct, 43. 
 jurisdiction in action to recover a, 29. 
 milk cans, unlawful detention of, 4:;. 
 railroad transfers, recovery of statutory, 44. 
 stock-books, refusing to exhibit, liability for, 44. 
 for misconduct of officers drawing jurors, 92. 
 Person or party indebted to judgment debtor, action against, 42, 46, 55, 
 86, 105. 
 motion for leave to issue execution; parties; notice, 107. 
 Personal defenses; payment; usury, 87. 
 
 injury, jurisdiction to recover damages for, 31. 
 
 assault on street car, the action is for, 40, 50. 
 proof of damages for, 119. 
 Petition in summary proceedings to recover possession of real prop- 
 erty, amendment of, 30. 
 verification of, by domestic corporation. 47. 
 Physician, liability in treatment of patient, 40. 
 Plaintiff, in what district to bring action, 65, 66, 67. 
 
 nonresident, in what district to bring action against foreign cor- 
 poration, 67. 
 Pleading. (See also Complaint; Answer; Defenses; General Denial; 
 Reply; Counterclaim; Demurrer; Interpleader.) 
 amendment of, 47, 88, 89. 
 to be liberally construed; Avhen judgment for the plaintiff on the, 
 
 proper, 88. 
 defect of parties as to copartnership, 87. 
 duress, 55, 86. 
 as evidence, 95. 
 immaterial variance is to be disregarded; quantum meruit and 
 
 express contract, 88. 
 judgment for the plaintiff on the, when proper, 86, 90. 
 minutes of trial on appeal, 118.
 
 Index 143 
 
 Pleading — (Continued) : 
 
 negative pregnant, 86. 
 
 payment, 87, 95. 
 
 tort, when action will be deemed in, 85. 
 
 verified, necessary to obtain costs, 85, 121. 
 Policeman, exemption from execution of salary of, 107. 
 Power of the court to order exhibition of accounts and examination of 
 books conferred upon court, not the justice, 88. ) 
 
 Practice, rules of, 58. 
 
 Prohibition, writ of, when will not lie, 64. 
 Proof. (See Evidence.) 
 Property, additional, exempt, 27, 76, 103. 
 
 jurisdiction in action to recover damages for injury to, 31. 
 
 lost, finder is entitled to, 44, 79. 
 
 rights, legislature has no power to destroy existing, 107. 
 Public cartmen, when not entitled to lien, 46. 
 Public servant, exemption from execution of salary of, 107. 
 
 Qualification of justices, 11. 
 
 Quantum meruit, and express contract in pleading, 88. 
 
 Quasi-contract, jurisdiction to recover voluntary payment of a, 40, 43. 
 
 Railroad transfers, recovery of statutory penalty, 44. 
 Real property. (See also Title.) 
 
 when title to, when it is not in question, 89. 
 
 jurisdiction of summary proceedings to recover possession of, 30. 
 
 constitutionality of Penal Code requiring written authority for 
 broker to sell, 33, 34. 
 Removal of action repealed, 56, 63. 
 
 of justice, 11, 25. 
 
 or death of justice, not to impair proceedings, 64. 
 
 to proper district, 68. 
 
 and suspension of marshal by the mayor, 111. 
 Rent, guarantor for, held liable in bankruptcy, 33. 
 
 defect in allegation of service of demand for, 47. 
 
 due is not " necessaries sold," 107. 
 Replevin, abandonment of, damages may be recovered, 81. 
 
 jurisdiction to issue requisition to, 31. 
 in, how determined, 44. 
 
 for lost property will lie in favor of the finder, 44. 
 
 mortgagee's possession under, not shown when judgment-roll not 
 in evidence, 82. 
 
 third party may interplead and defend, 79. 
 Requisition to replevy, jurisdiction to issue, 31. 
 Rooms for courts, how provided for, 16, 20, 24.
 
 144 Ixdex 
 
 Rules on appeal from this court, 112, 113, 114, 115. 
 
 from City Court of the city of New York, 112, 113, 114, 115. 
 
 Supreme Court, Appellate Term, 115. 
 
 Appellate Division, Second Department, 116. 
 Rules of this court, board of justices to make, 57. 
 
 as to clerks and attendants, 61. 
 
 clerk's office to I e closed at 2 p. M. during July and August, 107. 
 
 have the force of law, 25, 65. 
 Rules of practice, 58. 
 
 Supreme Court, under section 20, 26, 64. 
 
 Salary of justices, 12. 
 
 payment of, 16, 24. 
 
 of police officer exempt from execution, 107. 
 
 of public officer exempt from execution, 107. 
 Salary or wages, action for refusing to pay, of judgment debtor, 42, 55, 
 86, 105, 107. 
 
 execution on judgment in action for refusing to pay of judgment 
 debtor; amount must be stated, 105. 
 Sale. (See also Conditional Sale.) 
 
 for future delivery, 35. 
 
 of horse, 47. 
 
 of merchandise in bulk, 47. 
 Salesman, contract for commissions construed, 41. 
 
 services with an association not for business purposes, 41. 
 
 traveling; exclusive services; breach, 41. 
 Scienter, must be shown when bitten by dog, 49. 
 
 what evidence insufficient to establish, 49. 
 Seduction, no jurisdiction to recover damages for, 31. 
 Servant. (See Master and Servant.) 
 
 Service, jurisdiction in action for loss of, by reason of personal injury, 
 31. 
 
 of notice of demand for payment of rent, defect in allegation of, 47. 
 Service of summons. (See also Summons.) 
 
 of alias, need not also serve original, 69. 
 
 on corporation, association, partnership, express, insurance, or tele- 
 graph company, 71. 
 
 substituted, 72. 
 
 proof thereof requisite to jurisdiction, 72. 
 Slander, no jurisdiction in action to recover damages for, 31. 
 Squatter, summary removal of, question of title, 47, 89. 
 Stallions, lien for services of, 46. 
 
 Statute, complaint on, for refusing to pay wages of judgment debtor, 86. 
 Statute of frauds, contract for manufacture of goods, 41. 
 
 as to sale of merchandise in bulk, 47. 
 Stationary for courts, how provided for, 16, 20.
 
 Index 145 
 
 Stay of execution, jurisdiction to grant or vacate, 31. 
 Stenographers, continuance in office of certain, 15. 
 Stipulation, when court has power to relieve party from, 52. 
 Stock-books, penalty for refusal to exhibit, 44. 
 Substituted service of summons, proof to acquire jurisdiction, 32. 
 Summary proceedings, amendment of petition or answer in, 30, 96. 
 costs in, 68. 
 
 on discontinuance of, 68, 96. 
 to direct or set aside a verdict, and grant or deny a new trial, 
 
 30, 52. 
 to direct or set aside verdict, or vacate, amend, or modify final 
 
 order in, 31, 47, 52. 
 jurisdiction of, 30 
 
 to make final order in, 31. 
 may be raised for first time on appeal, 47. 
 petition must state manner of service of notice to pay rent, 47. 
 squatter, removal of, 47, 56, 89. 
 
 verification of petition by domestic corporation, 47. 
 Summons, alias summons as to jurisdiction same as original, 69, 71. 
 amending affidavit of service of, 73. 
 not personally served in attachment action, judgment by default, 
 
 47. 
 taken out by attorney-general or corporation counsel, no fees are 
 
 payable, 27. 
 service of, on corporation, association, partnership, express, insur- 
 ance, or telegraph company, 71. 
 costs in actions by city of New York to recovery of penalties, 26. 
 not personally served, when judgment cannot be taken by default, 
 
 76. 
 indorsement of, in action to recover a penalty, 71. 
 original, need not be served with alias, 69, 71. 
 substituted service of, 72. 
 
 proof to acquire jurisdiction, 32, 70. 
 Supreme Court, cannot set aside judgment of this court, but may set 
 aside transcript docketed and supplementary proceedings, 99, 102. 
 rules, under section 20, 26, 64. 
 
 action to recover less than $500 and costs cannot be brought in, 32. 
 Supplementary proceedings on judgment recovered in this court, tran- 
 script docketed, Supreme Court may set them aside, but cannot 
 vacate the judgment, 99, 102. 
 Surety, jurisdiction in action upon bond of, 29. 
 
 foreign corporation, upon city marshal's bond, 37, 42, 111. 
 upon marshal's bond, what necessary to obtain judgment against, 
 110. 
 
 10
 
 146 Index 
 
 Surety — (Continued) : 
 
 liability for wrongful levy of marshal, 110. 
 
 in what court bond of marshal may be prosecuted, 110. 
 Sureties, justification of, on undertaking for adjournment longer than 
 
 eight days, 90. 
 Surgeon, liability of, in treatment of patient, 40. 
 
 Taxation of costs, 121. 
 
 on appeal to Appellate Term, cannot be for failure to file return, 
 122. 
 Tenement-house repairs, order for, not a lien, 44. 
 Testimony. (See Evidence.) 
 Time of motion to set aside judgment, 100. 
 
 vacating judgment not rendered in, 100, 102. 
 
 failure to issue execution in, 98, 102, 106, 108. 
 Title, question of, on summary removal of squatter, 47, 55, 89. 
 
 to real property when it is not in question, 89. 
 
 in third person to chattel, 95. 
 Tort, when cause of action for, may be waived, 85. 
 Transcript of amended judgment for redocketing, 103. 
 
 docketed of judgment of this court, may be set aside by Supreme 
 Court, 99, 102. 
 
 of judgment not to be issued while execution in hands of marshal, 
 102. 
 Transfer of action to another district, when mandatory, 63. 
 
 of, to proper district, how made, 66, 67. 
 
 of action to another district, how made, 66, 67. 
 
 of cases to reserved calendar, 57. 
 
 of erroneous, appeal from order, 119. 
 Transfers, recovery of statutory penalty for refusal of railroad, 44. 
 Trial, conduct of, 93. 
 
 jury. (See Jury Trial.) 
 
 new. (See New Trial.) 
 
 setting case down for, upon opening default, 99. 
 
 of summary proceedings to recover possession of real property, 30 
 
 Undertaker in business, articles exempt from execution, 106. 
 Undertaking by surety, jurisdiction in action upon, 29. 
 
 on adjournment longer than eight days, justification of sureties, 90. 
 Usury is a personal defense, 87. 
 
 Value of chattels, jurisdiction in replevin, how determined, 44. 
 cost price, when evidence of, 45. 
 evidence of lost goods, 96.
 
 Index 147 
 
 Variance, immaterial, in pleading to be disregarded, quantum meruit 
 
 and express contract, 88. 
 Verdict may be directed, or set aside in summary proceedings, 30, 31. 
 entering judgment on, 92. 
 
 sufficiency of, rendered for plaintiff but not for a specific sum, 93. 
 is set aside as against the weight of evidence, costs where, 53, 99, 
 
 100. 
 when properly set aside, though no evidence by defendant, 49. 
 Voluntary payment of a fine under a mistake of law cannot be re- 
 covered, 40, 43, 44. 
 Veteran, removal of attendant, 25. 
 
 Wages, amount to be levied must be stated in, 105. 
 
 and employment damages, 37. 
 
 execution against wages or salary of a judgment debtor, 105. 
 
 of judgment debtor, action for refusing to pay wages to, 42, 46, 
 55, 86, 105, 107. 
 
 married woman's right of action for, 38. 
 Waiver of jurisdiction, 32. 
 
 of jury trial, 92. 
 
 service by respondent of amendments to case on appeal, is a, of 
 defects, 119. 
 Warehouse-keeper's lien, 45, 46. 
 Warrant of attachment, jurisdiction to issue, 31. 
 
 what must contain, 75. 
 
 must be signed by plaintiff's attorney, 77. 
 
 note questioning above, 77. 
 Warranty, breach of, in the sale of a horse, 47. 
 Wife. (See also Married Woman.) 
 
 no jurisdiction in action to recover damages for loss of society of, 
 31. 
 
 action for medical services against husband for, 37. 
 
 when liable for necessaries, support of, 38. 
 
 when earnings belong to, 38. 
 
 evidence as to election to labor on her own account, 39. 
 
 presumption as to earnings, 39. 
 Witness, counsel and judge in examination of, 94. 
 
 credibility of expert, is to be determined by jury, 94. 
 
 no charge for attendance of, without affidavit is produced stating 
 number of days of actual attendance, 122. 
 Writ of prohibition, when will not lie, 64. 
 
 [Whole Number of Pages 153.]
 
 
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