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41), nor be examined as a witness unless by consent (Perry v. Weyman, 1 Johns. 520; Lawrence v. Houghton, 5 id. 129, Cobb v. Curtis, & id. 470). He cannot find the amount of damage on a mere estimate (Ely v. O'Leary, 2 E. D. Smith, 355 ; Fox v. Decker, 3 id. 150; and see Prentiss v. Sprague, 1 Hilton, 428).

a. The judgment should specify that it was made “ on hearing the proofs and allegations” (Stocking v. Driggs, 2 Cai. 96); and if intelligible will not be vitiated by mispelling (Jackson v. Broener, 7 Wend. 388). Judgment in case of “willful trespass” for three dollars, with “ treble damages, making five dollars, held good (Tifft v. Culver, 3 Hill, 180). A judgment " for damages with costs $2.74,” was affirmed on appeal (Slaman v. Buckley, 29 Barb. 289).

b. Section 136 of the Code held not to apply to justices courts (Perkins v. Richmond, 17 How. 309). On a trial without a jury, the justice may, at the close of plaintiff's case, discharge one of several defendants, but should not enter judgment until the trial is finished (Moon v. Eldred, 3 Hill, 104; Fenn v. Timpson, 4 E. D. Smith, 276). On a suit commenced by warrant against two, if only one appears, judgment cannot be given against both (Richards v. Walton, 12 Johns. 434). Where in a suit by summons against two, one only appeared, and without authority confessed judgment against both, held binding on the other until reversed (Ingalls v. Sprague, 10 Wend. 672).

c. A judgment where the justice has jurisdiction cannot be attacked collaterally (Wesson v. Chamberlain, 3 N. Y. 331; Skinnion v. Kelly, 18 N. Y. 355 ; Bromley v. Smith, 2 Hill, 517; Groff v. Griswold, 1 Denio, 432). Although it be voidable for irregularities, it will uphold a judgment given upon it in a suit commenced thereon (Humphrey v. Persons, 23 Barb. 314).

d. The fact that a justice's judgment on which an action is brought was recovered more than six years before suit commenced, is no cause for reversing a judgment given upon it, where the defendant did not appear in the latter suit, and plead the statute of limitations (Humphrey v. Persons, 23 Barb. 313).

é. A judgment once entered, the power of the justice ceases; he cannot open or alter his judgment, even though it be entered by inadvertence for a wrong amount (Hardy v. Seelye, 3 Abb. 103; Scranton v. Levy, 4 id. 21; Camp v. Steroart, 2 E. D. Smith, 89; Dauchy v. Brovon, 41 Barb 555; Sperry v. Major, 1 id. 361; The People' v. Delaware Com. Pleas, 18 Wend, 558; McGuinty v. Herrick, 5 Wend. 240). Relief from such a judgment can only be obtained by an appeal from the judgment (Donnell v. Cornell, 1 Code Rep. N. 8. 288).

f. Semble. The judgment of a justice recovered since the code took effect remains in force for twenty years (Nichols v. Atwood, 16 How. 475; and see $ 68, port, and note).

9. A justice's judgment is a specialty (James v Henry, 16 Johns. 233; Witherwax v. Arerell, 6 Cow. 589). Parol evidence is inadmissable to contradict the docket of a justice (Smith v. Compton, 20 Barb. 262; Niles v. Totman, 3 id. 594).

h. The omission of a justice of the peace to keep his docket in the manner prescribed by law, or to deposit such docket with the clerk of the town, on his removing therefrom, will not effect the validity of the judgment (Humphrey v. Persons, 23 Barb. 313; Carshore v. Huyck, 6 Barb. 583; Buker v. Brintrall, 5 Abb. N. 8. 253).

i. Costs. Every judgment to be with costs of suit, but the whole amount of the items of such costs to be included in the entry of judgment, except charges for the attendance of witnesses from another county, sball not in any case exceed $5, unless such suit has been adjourned more than once at the request and on the motion of the losing party : and in such cases the costs of such additional adjournment may be included in the entry of judgment. And in all cases in which an issue is joined and trial bad and the damages recovered exceed $50, or where the plaintiff's claim in the complaint exceeded $50 and the defendant recovers judgment, the prevailing party shall be entitled to costs not exceeding $10, exclusive of witness' fees (Laws 1866, ch. 692, & 2). This law also prescribes the fees of justices, constables, jurors, and witnesses. The fees of constables were increased (2 Laws 1869, ch. 820, p. 1904).

7

a. Execution.—The execution is in all cases to be returnable in sixty days (Bander v. Burley, 15 Barb. 604); but it is no sufficient objection to an execution that it calls for its return within sixty days(Price v. Shipps, 16 Barb. 585); it should be against personal property only (Fisher v. Safford, 1 E. D. Smith, 612). No time for the ruturn need be inserted, and if inserted, may be treated as surplusage. The issuing and renewal of an execution probably ought to be considered the same thing; and regularly neither can be done after five years from the entry of the judgment (Morse v. Gould, 11 N. Y. 285; Bites V. James, 3 Duer, 45). After a transcript of a judgment has been filed in the office of the county clerk, the rules which govern the issuing execution upon it (except as specially provided) are those which apply to the common pleas (Ginochio v. Figari, 2 Abb. 185). An attorney-at-law may issue an execution in such a case (Simpkins v. Puge, 1 Code R. 107; Brush v. Lee, 1 Trans. App. 66 ; 34 How. 283).

b. Renewal of execution.-An execution may be renewed (Laws of 1857, ch. 512), without a return of no goods endorsed thereon (Wickham v. Miller, 12 Johns. 320); and this without any written return, and after the return day, and repeatedly (Visger v. Ward, 1 Wend. 551; The People v. Hopson, 1 Denio, 574).

c. Satisfaction.-A mere levy is not a satisfaction of a judgment (see Chapman v. Fuller, 7 Barb. 70). Payment of a judgment, the judgment creditor not forbidding, may be made to the justice (Dexter v. Breat, 16 Barb. 337).

d. Compelling execution.—A mandamus lies to compel the issuing an execution (The People v. Clerk of Marine Court, 3 Abb. 309).

€. Amending return.-A constable having returned an execution satisfied by sale, cannot afterwards annul that return by a supplementary indorsement on the execution (Ross v. Hicks, 11 Barb. 481).

f. Contempts.—à justice of the peace may punish a defaulting witness or juror, after the suit in which the default occurred is terminated (Robbins v. Gorham, 25 N. Y. 588; 26 Barb, 586).

9. The application for an attachment against a witness for non-attendance may be based on an oral oath without writing (Baker v. Williams, 12 Barb. 527).

TITLE VII.

Of Justices' and other Inferior Courts in Cities.

CHAPTER I. Marine court in New York city.

II, Justices' courts in New York city.
III. Justices' courts in cities.
IV. General provisions,

CHAPTER I.

Marine Court of New York City. Section 65 abrogated by subsequent laws.

CHAPTER II.

Justices' Court in New York City. $ 66. (Am'd 1870.) Landlord proceedings. Stenographer. Trial fee.

The district courts of the city of New York shall have such jurisdiction as is provided by special statutes; and proceedings under article two, of title ten, of chapter eight, of part three, of the Revised Statutes, may be had before any justice of such courts, without regard to the district in which the premises are situated; and the affidavits used in such proceedings may be taken before any officer authorized by law to take affidavits; and the justices of the district courts of the city of New York are hereby respectively authorized to appoint a stenographer in their several courts, whose duty it shall be to take full stenographic notes of all proceedings in trials had therein; he shall hold his office during the pleasure of the justice of the court, and shall receive a salary of two thousand dollars per annum out of the city treasury. The clerks of the said district courts shall collect, in all cases in which a trial is had, the sum of one dollar, in addition to the other fees authorized by law, and shall pay the same into the city treasury in like manner with other fees collected by them.

CHAPTER III.

The Justices' Courts of Cities. $ 67. Jurisdiction.

The justices' courts of cities shall have jurisdiction in the following cases, and no other:

1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54.

2. In an action upon the charter or by-laws of the corporations of their respective cities, where the penalty or forfeiture shall not exceed one hundred dollars.

CHAPTER IV.

General Provisions. § 68. (Am'd 1849, 1851.) Sections 55 and 64 applied.

The provisions of sections 55 to 64, both inclusive, relating to forms of action, to pleadings, to the times of commencing actions, to the rules of evidence, to filing and docketing transcripts of judgments, to their effect and the mode of enforcing them, and to proceedings where title to real property shall come in question, shall apply to the courts embraced in this title; except that after the discontinuance of the actions in the inferior court, upon an answer of title, the new action may be brought either in the supreme court, or in any other court having jurisdiction thereof; and ex

cept, also, that in the city and county of New York, a judgment for twenty-five dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien and be enforced in the same manner as, and be deemed, a judgment of the court of common pleas for the city and county of New York.

a. Justice to give transcript.—The justice is bound to give a transcript on demand to any party interested in the judgment, and on being paid for such transcript (Laws 1841, p. 114). If he refuses, a mandamus will lie to compel the delivery of the transcript (8 Cow. 133). The filing a transcript deprives the justice of any further control over the judgment (Re Sholts, 2 Cow. 506). The transcript may be made after the expiration of the justice's term of office (Maynard v. Thompson, 8 Wend. 393); and it need not show jurisdiction on its face (Jackson v. Rowland, 6 Wend. 666; Jackson v. Jones, 9 Cow. 182; 10 Cow. 233). It may by order be filed nunc pro tunc (Roth v. Schloss, 6 Barb. 380). It need not show the proceeding to give jurisdiction, in order to authorize it to be filed and docketed (Dickinson v. Smith, 25 Barb. 102).

1. Lien of Judgment.—The lien of a justice's judgment, of which a transcript was filed, and docketed with the county clerk, pursuant to 2 R. S. 247, $ 128, continued a lien against the defendant for twenty years (Waltermire v. Westorer, 14 N. Y. 16). As to judgments recovered since the code took effect (see Nichols v. Attrood, 16 How. 475; Young v. Reimer, 4 Barb. 442; Gel

Hoyt, 7 How. 265). Lien not affected by certain errors in transcript (Sears v. Burnham, 17 N. Y. 445).

c. After filing transcripts of judgment of a justice's court, the county court has such a control over the judgments as to enable it to order set-off between them (Hayden v. McDermott, 9 Abb. 14; and see Lyon v. Manly, 18 How. 267; 10 Abb. 337; 32 Barb 51), but cannot vacate the judgment on motion (Martin 1. Mayor of N. Y. 20 How. 86).

d. Filing transcripts for less than $25: see Candee v. Gundelsheimer, 17 How. 434; 7 Abb. 435 disapproved, Vultee v. Whitehead, 2 Hilton, 596; Butts v. Dickinson, 12 Abb. 60; Anon, 32 Barb, 201.

ler v.

PART II.

OF CIVIL ACTIONS.

TITLE I. THEIR FORM.

II. TIME OF COMMENCING THEM.
III. PARTIES.
IV. PLACE OF TRIAL.
V. MANNER OF COMMENCING THEM.
VI. PLEADINGS.
VII. PROVISIONAL REMEDIES.
VIII, TRIAL AND JUDGMENT.
IX. EXECUTION OF THE JUDGMENT.
X. Costs.
XI. APPEALS.
XII. MISCELLANEOUS PROCEEDINGS.
XIII. ACTIONS IN PARTICULAR CASES.
XIV. PROVISIONS RELATING TO EXISTING Surts.
XV. GENERAL PROVISIONS.

TITLE I.

Form of Civil Actions.

SECTION 69. Distinction between actions and suits abolished.

70. Parties how designated.
71. Actions on judgments.
72. Feigned issues abolished,

$ 69. (Am'd 1849).

Distinction between actions and suits abolished.

The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and there shall be in this State, hereafter, but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.

See note in the 8th edition of this work.

$70. (Amd 1849.) Parties how designated.

In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

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