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ADDITIONAL NOTES

OF THE DECISIONS PUBLISHED SINCE THE FIRST PUBLICATION
OF THIS WORK, AND BRINGING DOWN THE NOTES
OF REPORTED CASES TO 1867.

These additional notes contain the decisions reported in

Vols. 26, 27, 28, 29, 30, 31, 32, 33, New York Reports.

66

41, 42, 43, 44, 45, Barbour's Reports.

8, 9, 10, Bosworth's Reports.

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Vol. 1, Daly's Reports.

Vols. 17, 18, 19, Abbott's Reports.

Vol. 1, Abbott's Reports, New Series.

Vols. 27, 28, 29, 30, 31, Howard's Reports.

82, p. 18 a. A proceeding by mandamus is an action. (The People v. Lewis, 28 How. 172.)

Same section, p. 19 a. A proceeding to, vacate a local assessment in the city of New York is not a special proceeding in the sense of the Code. (Re Dodd, 27 N. Y., 629.)

§ 9, p. 21. Where courts may be held in times of epidemic disease, Laws of 1866, p. 347, ch. 174.

§ 10, p. 22 c. The courts of this State have no jurisdiction in an action at law against foreign executors or administrators (Metcalf v. Clark, 41 Barb. 45) nor of an action for injury to real estate out of the State. (Mott v. Coddington, 1 Abb. N. S. 290.)

As to jurisdiction by habeas corpus on a commitment by a court of the United States, see Re Barrett, 42 Barb. 479.

The courts of this State have jurisdiction of torts committed in foreign states, where the defendant is served with process in this State (Hull v. Vreeland, 18 Abb. 182; Latourette v. Clark, 45 Barb. 327; S. C. is erroneously reported 30 How. 242); and so of an action for a breach of covenant to convey real property situate in a foreign State. (Mott v. Coddington, 1 Abb. N. S. 290.)

§ 11, p. 26 a. A judgment obtained in a court of common pleas in 1846 was not a suit or proceeding pending in that court on the first Monday of July, 1847 (Wegman v. Childs, 44 Barb. 403); proceedings in chancery prior to 1846 to appoint committee for habitual drunkard, and pending when the constitution of 1846 went into effect, became vested in the Supreme Court. (Scribner v. Qualtrough, 44 Barb, 431.)

§ 17, p. 29 b. The supreme court cannot entertain an action for leave to issue execution on a judgment of a county court. (Niles v. Perry, 29 How. 192.)

Same section, p. 30 b.

Add, Re Seventh Avenue, 29 How. 180.

Same section, p. 30 h. Add, Patrie v. Murray, 29 How. 312; 43 Barb. 323; Benjamin v. Murray, 28 How. 193; Jones v. Seward, 41 Barb. 269; 17 Abb. 377.

Removal of causes from courts of conciliation. Laws 1865, ch. 556.

§ 18, p. 33. Powers of general term. (Brotherson v. Consalus, 28 How. 117; Opening Seventh Avenue, 29 How. 180.)

§ 27, p. 36. A judge out of court cannot punish as for a contempt a disobedience of an order in a statutory proceeding, unless where authority so to punish is conferred by statute. (The People v. Brennan, 45 Barb. 344.)

When a judge is disqualified by reason of his affinity to one of the parties to the suit. (N. Haven R. R. v. Schuyler, 28 How. 187.)

§ 80, p. 40. County courts have jurisdiction of actions for the specific performance of contracts (Williston v. Williston, 41 Barb. 635), and of all issues in actions of foreclosure, and to review proceedings in actions after judgment, and to grant new trials. (Hall v. Hall, 30 How. 51.)

As to enforcing judgments of county court, after death of judgment creditor. (Laws 1864, ch. 543; Niles v. Perry. 29 How. 192.)

§ 33, p. 45 a. The N. York Common Pleas has jurisdiction in actions for torts committed out of the State (Smith v. Butler, 1 Daly, 508). In all actions except those mentioned in sections 123 and 124 of the Code, where there is only a single defendant, he must, to give the N. Y. Superior Court or N. Y. Common Pleas jurisdiction, reside in the city of New York or be served with the summons therein. (Kerr v. Mount, 28 N. Y. 659.)

§ 33. The Mayor's Court of Albany may grant new trials or set aside judgments on the merits. (The People v. Austin, 43 Barb. 313.)

§ 54, p. 55. Two towns contiguous at either of the corners thereof are adjoining towns. (Holmes v. Carley, 31 N. Y. 289.)

A justice of the peace is not disqualified from trying a cause, by reason of his having been a juror in an action between the same parties for the same cause of action. (Travis v. Jenkins, 30 How. 152.)

A judgment rendered by a justice of the peace who is related to either of the parties is void. (Schoonmaker v. Clearwater, 41 Barb. 200.)

A summons issued by a justice of the peace does not require a revenue stamp. (Baird v. Pridmore, 29 How. 253.)

Same section, p. 58. To obtain an attachment in a justice's court against a non-resident, the affidavit is sufficient to give jurisdiction, and as against third parties if it states, "deponent (plaintiff) applies for an attachment on the ground that the defendants are not residents of that county, but are residents of another county" (Bascom v. Smith, 31 N. Y. 595); and as to approving bond and return, see Id. and Williams v. Barnaman, 19 Abb. 69; 18 Abb. 158; 28 How. 59.

An affidavit that defendant is justly indebted to plaintiff on a demand arising upon keeping horses, held sufficient. (Williams v. Barnaman, 19 Abb. 69.)

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Section 54-Continued.

A bond with one surety sufficient on issuing an attachment under non-imprisonment act. (Id.)

Same section, p. 60. Constable's return of personal service of a summons is conclusive, and cannot be impeached collaterally. (Hubbard v. Chapin, 28 How. 407.)

Same section, p. 61. Defects in process cured by general appearance in the action. (Sprague V. Irwin, 27 How. 51; Watson v. Morton, 27 How. 294.) Who may appear as attorney. (Laws 1864, ch. 421.)

A justice of the peace cannot amend a summons after service, by correcting the name of a defendant therein, when such defendant does not appear (Hoffman v. Fish, 18 Abb. 76); but he may where the parties appear and do not move to dismiss, amend the summons by correcting the date. (Bradbury v. Van Nostrand, 45 Barb. 194.)

Same section, p. 62 a. A justice has jurisdiction of a cause at the return of the summons and of the person, one hour after the return, whether the defendant is present or not. (Sagendorph v. Shult, 41 Barb. 102.)

$ 55, p. 64. The introduction of a deed as evidence not of title to land, to establish some other fact, does not raise a question of title. (Nichols v. Bain, 27 How. 286; and see Heintz v. Dellinger, 28 How. 39.)

§ 59, p. 67. Where title to land comes in question the justice has no jurisdiction. (Gage v. Hill, 43 Barb. 44.)

§ 64, p. 76. A venire should not be delivered to a constable, by a justice, until the parties have had an opportunity to object. (Rice v. Buchanan, 41 Barb. 147.)

Same section, p. 76 a. A constable who serves the process, appearing as counsel, renders the judgment irregular but not void. (Wilkinson v. Vorce, 41 Barb. 370.)

Same section, p. 77 j. An erroneous dismissal of a suit by a justice, against the wish of the plaintiff, puts an end to it as effectually as though it was dismissed upon the plaintiff's motion. (Lord v. Ostrander, 43 Barb. 337.)

Same section, p. 79 d. If a justice does not render his decision in four days after the cause is submitted, he loses jurisdiction (Bloomer v. Merrill, 29 How. 259); but the parties may by stipulation give the justice more than four days to render judgment. (Barnes v. Badger, 41 Barb. 98.)

Same section, p. 80 d. A justice cannot amend his judgment. (Dauchy v. Brown, 41 Barb. 555.)

Same section, p. 80 i. Fees of justices of the peace in civil cases are as follows: (Laws 1866, ch. 692, p. 1481, § 1.)

Summons

Warrant, attachment, or transcript of judgment.
Adjournment

Subpoena including all the names inserted therein.
Administering an oath.

Filing every paper necessary to be filed.

Swearing a jury

Swearing a constable to attend a jury.

Trial of an issue of fact, in case of no appearance by defendant.

Trial of an issue of fact, where there is an appearance and answer.

Entering judgment..
Taking affidavit..
Drawing any bond.

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Section 64-Continued.

Receiving and entering verdict of jury..

Venire....

Drawing affidavits, applications, and notices in cases required by law, 5 cents per, folio.

Execution...

Renewal of execution..

Making a return to an appeal

Warrant for the apprehension of any person charged with the violation of
the laws concerning the internal police of the State....
Warrant for the apprehension of any person charged with being the father

of a bastard.

Indorsing any warrant issued in another county

Summons for any offense relating to the internal police of the State, or in case of any special proceedings to recover the possession of lands or otherwise

Drawing a record of conviction for a contempt and other special cases.
Execution upon any such conviction ...

Warrant of commitment for any cause

For a precept to summon a jury in special cases

Swearing such jury...

Hearing the matter concerning which such jury is summoned.
Receiving and entering the verdict of such jury..

For a view of premises alleged to be deserted..
Hearing an application for a commission to examine witnesses

Order for such commission, and attending, settling, and certifying interrog

atories

Taking depositions of witnesses upon an order or commission issued by
some court of this or a foreign state or territory, 10 cents a folio.
Making the necessary return and certificates thereto...
Indorsement on affidavit in an action to recover personal property..

Constables' Fees.

Serving a warrant or summons..

Copy summons on request of defendant or left at defendant's dwelling in his absence...

25

25

25 25 $2.00

Copy of such affidavit, notice, and summons, left with the defendant [or]
his agent at the last place of abode of the defendant
Every mile traveled, going only, to serve such affidavit, notice and sum-

mons, the distance to be computed from the place where the pre-
cept is returnable to the place of abode of the defendant, or where
he shall be found....
Taking charge of jury during their deliberations

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19 1910 19

25

15

Serving an attachment.

Copy attachment and of inventory of property seized, left at the last residence of defendant

Serving execution; for every dollar collected to amount of $50, 5 cents; over $50, 2 cents.

Every mile traveled, going only, to serve a summons, warrant, attachment, or execution, the distance to be computed from the place of the abode of defendant, or where he shall be found to the place where the precept is returnable...

Notifying plaintiff of service of a warrant.

Going to plaintiff's residence or where he shall be found, to serve notice,
for each mile traveled, going only..
Subpoenaing witnesses, not exceeding four.
Summoning a jury..

Summoning a jury to assess damages in a proceeding relative to highways. $2 00
Serving affidavit, notice, and summons, in an action to recover possession

of personal property...

75

75

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75

50

50

10 50

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