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give new sureties on the return day of said summons, who shall then appear and justify, or said justice shall order said property delivered to defendant, and shall also render judgment for defendant's costs and disbursements.
At any time before the return day of said summons, the said defendant may, if he has not excepted to the plaintiff's sureties, require the return of said property to him, upon giving to the plaintiff, and filing same with the justice, a written undertaking, with one or more sureties, who shall justify before said justice on the return day of said summons, to the effect that they are bound in double the value of said property, as stated in plaintiff's affidavit, for the delivery thereof to said plaintiff if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against said defendant; and if such return be not required before the return day of said summons, the property shall be delivered to said plaintiff.
The qualification of sureties and their justification under this act, shall be the same as provided in sections one hundred and ninety-four and one hundred and ninety-five of the code, in respect to bail on arrest in the supreme court.
Sections two hundred and fourteen, two hundred and fifteen, and two hundred and sixteen of the code, shall apply to proceedings and actions brought under this act, substituting the word constable for the word sheriff whenever it occurs in either of said sections.
The actions so commenced shall be tried in all respects as other actions are tried in justices' courts.
The judgment for the plaintiff may be for the possession, or for the recorery of the possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the plaintiff
, and the defendant claim a return thereof, judgment for the defendant may be for a return of
or the value thereof in case a return cannot be had, and damages for taking and withholding the same. An execution shall be issued thereon, and if the judgment be for the delivery of the possession of personal property, it shall require the officer to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs or damages recovered by the same judgment out of the personal property of the party against whom it was rendered, to be specified therein, if a delivery thereof
cannot be had. The execution shall be returnable within sixty days after its receipt by the officer, to the justice who issued the
In all actions for the recovery of the possession of personal property, as herein provided, if the property shall not have been delivered to plaintiff, or the defendant by answer shall claim a return thereof, the justice or jury shall assess the value thereof, and the injury sustained by the prevailing party by reason of the taking or detention thereof, and the justice shall render judgment accordingly, with costs and disbursements.
If it shall appear by the return of a constable that he has taken the property described in the plaintiff's affidavit, and that defendant cannot be found, and has no last place of abode in said county, or that no agent of defendant could be found on whom service could be made, the justice may proceed with the cause in the same manner as though there had been a personal service.
For the endorsement on said affidavit, the justice shall receive an additional fee of twenty-five cents, which shall be included in the costs of the suit.
a. Chapter 158 of Laws of 1861 amended this 53d section of the Code by adding to it all that follows subdivision 9.
$ 54. No jurisdiction.
But no justice of the peace shall have cognizance of a civil action
1. In which the people of this State are a party, excepting for penalties not exceeding one hundred dollars :
2. Nor where the title to real property shall come in question, as provided by sections 55 to 62, both inclusive:
3. Nor of a civil action for an assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction :
4. Nor of a matter of account where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars :
5. Nor of an action against an executor or administrator as such.
6. Jurisdiction of Justices.-A JUSTICE OF THE PEACE HAS JURISDICTION OF THE FOLLOWING ACTIONS, namely : Actions—By seamen against shipping agents for advance pay, the act of 1819 applies only to actions against the owner, master or commander of a ship (Loftus v. Clark, 1 Hilt. 310). By district school teachers for wages (Reynolds v. Vynard, 1 How. Ap. Cas. 620). Against a justice for wilfully refusing to issue an execution (Van Vleck v. Burroughs, 6 Barb. 341) or for wrongfully refusing to approve an appeal bond (Tompkins v. Sands, 8 Wend. 462). For trespass to lands in another county than that where the justice resides (Grares v. McKeon, 2 Denio. 639, aff’d 1 How. Ap. Cas. 345). For enticing away a wife (Chase v. Hale, 8 Johns 461), Against a sheriff for an escape (Jansen v. Stoughtenburgh, 9 Johns. 369), or for not returning an execution, where the damage does not exceed $200 (Loughran v. Orser, 15 How. 281). For penalty under a corporation by-law (Walker v. Cruickshanks, 2 Hill, 296). Upon judgments (McGuire v. Gallagher, 2 Sand. 402); and justice's judgments exceeding $100 (Humphrey v. Percons, 23 Barb. 313). On a bond (Boomer v. Laine, 10 Wend. 525), but query an executor's bond (O'Neil v. Martin, 1 E. D. Smith, 404; Mahoney v. Gunter, 10 Abb. 431). On a promise to discontinue a suit (Jarrington v. Bullard, 40 Barb. 513). For injury to personal property (Bull v. Colton, 22 Barb. 94), where it does not amount to an assault on the person (Rich v. Hogeboom, 4 Denio, 453).
If the plaintiff state his demand at more than four hundred dollars, but claim damages only to four hundred dollars, the justice has jurisdiction. So, the plaintiff may sue on a demand exceeding four hundred dollars, and reduce it to the justice's jurisdiction by voluntary credits or deductions (Tuttle v. Maslon, 1 Johns. Cas. 25; 12 Johns. 425; Bennett v. Ingersoll, 24 Wend. 113), except an action within subd. 2 of sect. 53 (Bellinger v. Ford, 14 Barb. 250). The justice is to decide whether or not the accounts on both sides exceed $400, and where the evidence is conflicting his decision is conclusive (Glackin v. Zeller, 52 Barb. 147; Parker v. Eaton, 25 id. 122).
a. Foreign Corporations. Although a justice bas no jurisdiction of a suit against a foreign corporation, such corporation may confer jurisdiction by appearing and answering without objecting to the jurisdiction (Paulding v. Iłudsın Manf. (0.2 E. D. Smith, 38).
6. Executors.-Executors and administrators may sue, but cannot be sued, in a justice's court; and if they sue, the defendant may plead a set-off if he have one, and if he prevail may bave judgment against such plaintiffs in their representative character, which will be evidence of a debt established, to be paid in the course of administration (2 R. S. 236, s. 53).
c. Adjoining Towns.—Towns which corner together, but do not touch otherwise, are “adjoining towns” within the statute relating to justice's jurisdiction (Holmes v. Carley, 31 N. Y. 289).
d. Confession of judgment.-A justice may take a confession of judgment any where in his county (Pollock v. Aldrich, 17 How. 109; Stone v. Williams, 40 Barb. 322). It must not be for a sum exceeding $500 (Daniels v. Hinckston, 5 How. 322 ; Griswold v. Sheldon, 1 Code R. N. S. 261), hut an entire demand may be divided and several judgments confessed (Cornell v. Cook, 7 Cow. 309). A justice cannot take the confession of judgment by one who is his son in law (Chapin v. Churchill, 12 How. 367). Omitting to annex affidaFit to confession renders it void as against creditors, but binding on the defendant (Stone v. Williams, 40 Barb. 322). A judgment may be confessed on the trial without the formalities prescribed by the revised statutes (Gates v. Ward, 17 Barb. 424).
e. A Justice of the Peace has not jurisdiction of the following actions, namely: Actions—To charge the separate estate of married women (Coon v. Brook, 21 Barb. 546). For injury to the property amounting to an assault on the person (Rich v. Hogeboom, 4 Denio, 453; and see Bull v. Colton, 22 Barb. 94).
For converting personal property where the complaint claims more than $200 (Bellinger v. Ford, 14 Barb. 250), although the amount claimed was inserted by mistake (id.), if the claim had been $200 and orer, it would not have ousted the justice of jurisdiction (Rockwell v. Perine, 5 Barb. 573). Against a justice for a false return (Worden v. Brown, 14 How. 327). For damages for fraud in the sale of real estate ( White v. Seaver, 25 Barb. 236). Where the contested demands exceed $400 (Stilwell v. Staples, 3 Abb. 365). If the accounts have
been settled, the balance is the only subsistent account; and unless this balance and the subsequent accounts exceed four hundred dollars, the justice has jurisdiction (Code, sec. 54, subd. 4; 2 Cow. 431). The matters of account must be open and unliquidated (2 Cow. 413) ; thus, if the plaintiff should prove a claim of $300, and the defendant a payment on account of $250, the justice must give judgment for the balance (ib.) But if, instead, the defendant had proved a set-off to the amount of $250, tbe justice must have dismissed the complaint (10 Wend. 555, 557). A claim for a balance of $68 for work and labor, the aggregate of which work and labor amounted to $400, reduced by payments to the sum first named, does not create a case of mutual accounts (Ward v. Ingraham, 1 E. D. Smith, 538). Otherwise when the defense seeks to set off items arising in a course of mutual dealing, which themselves constitute an affirmative claim in the defendant's favor, and wbich have not been specifically appropriated as payments in reduction of the plaintiff's claim (ib.)
a. Where the plaintiff, in an action arising on contract, for recovery of money only, proves contested demands which with those established by the defendant exceed $400 in amount, a case arises in which a justice of the peace has no jurisdiction; demands contested by the pleadings, but admitted on the the trial are "proved." Plaintiff is not required to commence an action in a justice's court and prove demands which exceed $400, and be dismissed, as a necessary preliminary to suing in a court of record (Stilwell v. Staples, 3 Abb. 365 ; 5 Duer, 691).
6. In an action in which the plaintiff demanded judgment for $336 and interest, the defense was payment and a counter-claim of $200; on the trial before a referee he found the plaintiff's claim to be $260, and that the defendant had made payments on account to the amount of $95, and had a counterclaim to the amount of $136-held the accounts between the parties did not exceed $400 (Crim v. Cronkhite, 15 How. 280; and see Bady v. Durbror, 2 E. D. Smith, 78.)
c. On its being proved that the amounts exceed $400, the justice is required to enter a judgment of discontinuance, with costs (10 Wend. 559; see s 344, sub. 3, post).
d Disability of justice.—The statute declaring that no judge of any court can sit as such in any cause in which he is a party, extends to justices of the peace (Balducin v. McArthur, 17 Barb. 415, and see Chapin v. Churchill, 12 How. 367; Re Hopper, 5 Paige, 489). So does the law of 1847, ch. 280, s. 81, forbidding a judge to act in any cause in which he has been counsel (Carrington v. Andrews, 12 Abb. 348). But the statute forbidding a partner of or clerk to a judge practicing before him, does not apply (Fox v. Jackson, 8 Barb. 355). The provision suspending the jurisdiction of a justice on his becoming an innholder, or tavern-keeper, applies to his civil jurisdiction ( Rice v. Milks, 7 Barb. 337). A justice cannot sit in a cause to which a corporation is a party, if he be related to a stockholder in such corporation (Pluce v. Butternuts Woolen Man. Co. 28 Barb. 503). A justice of the peace is not disqualified from trying a cause by reason of bis 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).
e. Long summons.-.A justice of the peace has civil jurisdiction, by long summons, of all persons residing within the town, or adjoining the town of the justice's residence, and within his county, or where the plaintiff resides in the same town as the justice or an adjoining county (Cooper v. Ball, 14 How. 295). There is no jurisdiction by long summons of a non-resident (Willins v. Wheeler, 8 Abb. 116). Joint debtors may be sued by long summons, if one be a resident (Burghart v. Rice, 2 Denio, 95). But this rule does not apply to the case of an action against the maker and the endorser of a promissory note; they are not joint debtors (Harriott v. Van Cott, 5 Hill, 285; Kelsey v. Bradbury, 21 Barb. 531). No provision is made by statute for process by war, rant, or attachment, or short summons against à corporation. A railroad
corporation may, therefore, be sued by a long summops. (Johnson v. Cayuga & Sux. R. R. Co. 11 Barb. 621), and may insist on being sued by long summons in a county through which their road passes. They are, in law, residents of such county (Belden v. N. Y. & Harlem R. R. Co. 15 How. 17), unless the plaintiff is a non-resident (Wilde v. N. Y. & Horlem R. R. Co. 1 Hilton, 302).
a. A non-resident has his option to sue by long or by short summons (Kelly F. Kelly, 2 E. D. Smith, 250 ; and see Ackerman v. Finch, 15 Wend. 652).
b. Form of the summons.-The form of the summons in these courts is not governed by the code (Williams v. Price, 2 Sand. 229). The summons should state a cause of action (Ellis v. Merrit, 2 Code R. 68; Cooper v. Chamberlain, ib. 142; Bray v. Andreas, 1 E. D. Smith, 387; Hogan v. Baker, 2 id. 22; contra, see Cornell v. Bennett, 11 Barb. 657; Smith v. Joyce, 12 ib. 21); but where the defendant was summoned to answer the plaintiff's "complaint for money due” (Silkman v. Boiger, 4 E. D. Smith, 236), or to answer the complaint of J. W. B. for $100 damages in the action on contract, it was held sufficient (Bray v. Andreas, 1 ib. 387); and where the summons was “to answer the complaint for professional services” (Bissell y. Dean, 3 id. 172), and also where the summons required the defendant to answer in “civil action for damage and false representation in the sale of a horse," on appeal it was held sufficient. The particular plea need not be stated (Delancey v. Nagle, 16 Barb. 97; Humphrey v. Persons, 23 Barb. 313). The summons omitting to state the ples, or the nature of plaintiff's claim, is no cause for reversing the judgment (Cornell v. Bennett, 11 Barb. 657).
€. Although a summons issued by a justice claims damages exceeding $400 the defendant is bound to appear in the action (Humphrey v. Persons, 23 Barb. 313); and claiming $400 and over would not render the summons a nullity (Rockwell v. Perine, 5 Barb. 573). A justice acquires no jurisdiction where the defendant, being a non-resident, is sued by a summons, returnable more than four days after its date, or served less than two days before the return day (Robinson v. West, 11 Barb. 309).
d. Semble, plaintiff may fill up process as the clerk of the justice (The People 1. Smith, 20 Johns. 63; see, contra, Borrodale v. Leek, 9 Barb. 611).
€. Short summons.—A short summons against a non-resident, allowed by § 33 of the non-imprisonment act, issues of course without security, although the plaintiff is also a non-resident (Ackerman v. Finch, 15 Wend. 652; but see Allen v Stone, 9 Barb. 60). A non-resident of the county must be proceeded against by short summons or attachment (Thompson v. Sayre, 1 Denio, 175). An action may be commenced against a resident corporation by short summons if the plaintiff is a non-resident and furnishes the requisite bond and affidavit (Wilde v. N. Y & Harlem R. R. Co. 1 Hilton, 302); but only on these conditions (Belden v. N. Y. & Harlem R. R. Co. 15 How. 17).
f. To authorize the issuance of a short summons the facts which warrant it must be shown affirmatively (Allen v. Stone, 9 Barb. 60 ; Sperry v. Major, 1 E. D. Smith, 361). As to what is sufficient proof, see Waters v. Whittemore, 13 Barb. 634.
9. An action to recover back illegal fees exacted by a non-resident defendant as an attorney cannot be commenced by short summons (Waters v. Whittemore, 22 Barb. 593).
h. Attachment.-To authorize the issuance of an attachment an affidavit must be presented, and a bond with surety given (Bennett v. Brown, 4 N. Y. 254; Daris v. Marshall, 14 Barb. 96; Kelly v. Archer, 48 Barb. 68). The affidavit is sufficient, if it shows the defendant is a non-resident (Bascom v. Smith, 31 N. Y. 595), that plaintiff has a debt against him of a specified amount, arising on contract (Van Kirk v. Wilds, 11 Barb. 520; Williams v. Barnaman, 19 Abb. 69), or for a tort (Pope v. Ilart, 35 Barb. 630). An oral statement of a witness under oath, written down by the justice, although not signed by the witness, is a sufficient affidavit (Millius v. Shafer, 3 Denio, 60); but an oral statement not reduced to writing is not sufficient (Comfort v.