§ 64. [57.] (Amended 1849, 1851, 1852.) Rules.

The following rules shall be observed in the courts of justices of the peace.

1.

The pleadings in these courts are : 1. The complaint by the plaintiff; 2. The answer by the defendant.

2.

The pleadings may be oral, or in writing; if oral, the substance of them shall be entered by the justice in his docket; if in writing, they shall be filed by him, and a reference to them shall be made in the docket.

3.

The complaint shall state, in a plain and direct manner, the facts constituting the cause of action.

4.

The answer may contain a denial of the complaint, or of any part thereof, and also notice in a plain and direct manner, of any facts constituting a defence.

5.

Pleadings are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended.

6.

Either party may demur to a pleading of his adversary, or any part thereof, when it is not sufficiently explicit to enable him to understand it, or it contains no cause of action or defence, although it be taken as true.

7.

If the court deem the objection well founded, it shall order the pleading to be amended, and if the party refuse to amend, the defective pleading shall be disregarded.

8.

In case a defendant does not appear and answer, the plaintiff cannot recover without proving his case.

9.

In an action or defence founded upon an account, or an instrument for the payment of money only, it shall be sufficient for a party to deliver the account or instrument to the court, and to state that there is due to him thereon from the adverse party a specified sum, which he claims to recover or set off.

10.

A variance between the proof on the trial, and the allegations in a pleading, shall be disregarded as immaterial, unless the court shall be satisfied that the adverse party has been misled to his prejudice thereby.

11.

The pleadings may be amended at any time before the trial, or during the trial, or upon appeal, when by such amendment substantial justice will be promoted. If the amendment be made after the joining of the issue, and it be made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment shall be granted. The court may also, in its discretion require as a condition of an amendment, the payment of costs to the adverse party.

Execution may be issued on a judgment, heretofore or hereafter rendered in a justice's court, at any time within five years after the rendition thereof, and shall be returnable sixty days. from the date of the same.

13.

If the judgment be docketed with the county clerk, the execution shall be issued by him to the sheriff of the county, and have the same effect, and be executed in the same manner, as

other executions and judgments of the county court, except as provided in section 63.

14.

The court may, at the joining of issue, require either party at the request of the other, at that or some other specified time, to exhibit his account on demand, or state the nature thereof as far forth as may be in his power, and in case of his default preclude him from giving evidence of such parts thereof as shall not have been so exhibited or stated.

15.

The provisions of this act, respecting forms of action, parties to actions, the rules of evidence, the times of commencing actions, and the service of process on corporations, shall apply to these courts.

Note to Rule 2.

a. The provision for verifying pleadings is incapable of being applied to oral pleadings. It is only those subscribed by the party that are to be verified, and the oath of a party to his verbal complaint or answer would be idle in the extreme. Williams v. Price, 2 Sand. 229.

b. An answer of title must be in writing. See section 55 of this code.

Note to Rule 3.

c. The complaint need not correspond with the summons in every respect; thus, where the summons described the action as "a civil action for damage and false representation in the sale of a horse," and the complaint was for a breach of warranty in the sale of a horse, the court said, "the complaint was in a civil action, and that was enough." Delancy v. Nagle, 16 Barb. 97.

d. A party cannot complain simply for money had and received. The court requires a plain statement of the plaintiff's cause of action. Thus, where the complaint was for money had and received, damages $41 66," the court, on appeal held it insufficient, and that the claim should have been stated according to the facts, but inasmuch as the cause had been tried on the merits, an amendment was ordered. Cushingham v. Philips, 1 Smith, 418.

e. If the complaint is not sufficiently certain and explicit, the defendant should demur; a justice has no authority to entertain a motion to strike out a complaint or answer in whole or in part. Mayor of New York v. Mason, 1 Abbott, 344.

f." I have no doubt that the plaintiff may unite in one complaint as many causes of action on contract, express or implied, as may be within the jurisdiction of the justice. He may also, in like manner, join in one complaint all actions for tort properly cognizable before a justice of the peace, but that the causes of action so united must all belong to one only of the classes specified in section 167 of the code." But if a defendant does unite in one complaint causes of action on tort and contract, "I see no way to make the objection available but by compelling the plaintiff, at the time of joining issue or upon the trial, to elect to which class of actions he will be confined. The more appropriate time to make the election would be before issue joined, but I think the plaintiff may be put to his election at any time before trial." -Tyler, County Judge. Burdick v. McAmbly, 9 Pr. R. 117.

Note to Rule 4.

a. "The notice authorized by this rule is not annexed to the answer, but is contained in it. In other words, it is a somewhat less formal allegation of the same facts, and no demurrer is allowed, or reply required to it." Jewett v. Jewett, 6 Pr. R., 190.

b. An answer denying any knowledge or information of the matters alleged in the complaint is not permissible in the justices' or marine court. Dennison v. Carnahan. 1 Smith, 144.

c. By an answer on the merits, the defendant waives all objections which would go only in abatement of the action; and this notwithstanding he may have previously taken the objection, either in the form of a motion to dismiss the complaint, or by a demurrer, which has been overruled. Andrews v. Thorp, 1 Smith, 615; Monteith v. Cash, ib. 412; Harper v. Leal, 10 Pr. R. 276; and see Gardner v. Clark, 6 ib. 449; Bridge v. Payson, 5 Sand. 210, and note to s. 148, post.

d. If a defendant unite in one answer matter in abatement and matter in bar, the court may disregard the former and try the cause upon the merits. Monteith v. Cash, 1 Smith, 412; Andrews v. Thorp, ib. 615.

Note to Rule 5.

e. Great latitude is allowed in pleadings in courts of justices of the peace, and courts construe them liberally (Ross v. Hamilton, 3 Barb., 609); and the rule that pleadings in justices' courts are to be liberally construed has no application where the question is one of variance between the pleadings and the proof. Howe v. Wilson, 1 Denio, 181.

Note to Rule 6.

f. If a defendant demur, and his demurrer is overruled, and he in an answer, it is a waiver of the objections raised by the demurrer. 10 Pr. R. 276.

afterwards puts Harper v. Leal,

g. The language of this subdivision" is imperative and must apply to and control every case in which the defective pleading is susceptible of amendment. Turch v. Richmond, 13 Barb., 533. The right to amend is to be incorporated in the order, inasmuch as parties who appear in justices' courts are not always acquainted with their rights, and might be ignorant of the necessity of asking for an amendment. The right to amend is peremptory, and not discretionary." Hilliard v. Austin, 17, Barb. 141.

h. After issue joined before a justice of the peace, and the parties had met for the trial of the cause, the defendant insisted that the justice should decide a motion previously made, that the complaint be dismissed on the ground that it did not contain facts enough to constitute a cause of action; the justice granted the motion, without giving the plaintiff the right to amend. It was held that in this decision the justice erred: first, in not giving the right to amend; secondly, as to the time of granting the dismissal, it was after an issue had been joined, and the parties had come prepared for trial. Ib.

Note to Rule 8.

i. The plaintiff cannot take judgment for more than the amount mentioned in the summons. Partridge v. Gould, 1 Code Rep., 85; and 2 Sand, 227, sub nom. Partridge v. Thayer. The court of common pleas held, that where in a justice's court a defendant appears and puts in an answer, the provisions of section 168 apply, and therefore where a defendant appeared and put in an answer of payment and set-off, held, that the plaintiff's demand was thereby admitted and did not require to be proved. Young v. Moore, 2 Code Rep. 243; Denison v. Carnahan, 1 Smith, 144; De Courcy v. Spalding, 3 Code Rep., 16.

j. Where, in a justice's court, the defendant did not deny the plaintiff's claim, but merely alleged a set-off, which was not proved on the trial, held, that on such a state of pleading, the plaintiff was entitled to the amount of his claim without any proof. Gregory v. Trainer, 10 Pr. R. 209.

Note to Rule 11.

4. The amendment is the omission, at the end, of these words: "be fixed by the court; but no amendment shall be allowed after a witness is sworn on a trial, when an adjournment thereby will be made necessary."

b. Justices' courts possess the same power as to amendments as eourts of record, Fulton v. Heaton, 1 Barb., 552, and see section 173, post.

c. "On the trial the justice amended the complaint, so far as it appears, of his own mere motion and against the will of the defendant. It is certainly not the duty of the justice, nor do I conceive it proper for him to volunteer to make amendments of the pleadings not moved for by either party." Loyd v. Fox, 1 Smith, 102.

d. "The rules prescribed by the code as to the necessary parties to an action, are applicable to justices' courts so far as consistent with their constitution and duties. But the authority of adding parties is a different thing. It could not have been intended to give them the same general power in this respect as is possessed by the Supreme Court. The system is not adapted to the proper exercise of that power Indeed, I think section 173 inapplicable to justices' courts." Gates v. Ward, 17 Barb., 427.

e. And where, on the return day of a summons, the justice on the plaintiff's motion amended the summons by striking out the name of one of the plaintiff's named therein. Issue was joined and the cause adjourned. On the adjournment day a motion was made on the part of the plaintiff to have the name of the plaintiff which had been previously struck out, restored. The motion was allowed, and the plaintiff obtained judgment. The supreme court on appeal, reversed the judgment on the ground that the justice ought not to have allowed the restoration of the name of the plaintiff previously stricken out. Ib.

f. It is "doubtful whether a justice has any authority after the examination of witnesses is commenced, to suspend a trial without the consent of both parties, except for the single cause that there was not time to conclude it on the day." But it is a matter of discretion, with which an appellate court will not interfere, unless possibly in the case of gross injustice. Fairbanks v. Corlies, 1 Abbott, 152.

Note to Rule 12.

g. An execution on a justice's judgment can issue only against goods and chattels (2 Rev. Laws, 391.) Fisher v. Soffer, 1 Smith, 612.

h. Execution may be issued on judgments rendered in these courts [Justices' courts in the city of New York], at any time within five years after the rendition thereof, returnable not less than twelve nor more than twenty days from the time of the issuing of the same. Laws of 1851, p. 957, s. 4.

i. The 144th section of tit. 4, ch. 2, of part 3, of the Revised Statutes, requiring executions issued by justices of the peace to be made returnable in ninety days when the judgment exceeds $25, and in all other cases in thirty days, is repealed by section 468 of the code. Executions issued by justices of the peace, as well as those issued by courts of record, are required to be made returnable in sixty days. Bander v. Burley, 15 Barb., 604.

j. But the 145th section of tit. 4, ch. 2, part 3, of Revised Statutes, providing that executions issued by justices of the peace may be renewed for ninety days on judgments for more than $25 and for thirty days in all other cases, and no longer, is not repealed by the code, and is still in force and governs executions issued pursuant to the code. Ib.

k. It is no sufficient objection to an execution or a judgment in a justice's court, that it is made returnable "within sixty days" instead of "sixty days." Price v. Shipps, 16 Barb., 585.

Note to Rule 13.

7. An attorney at law may issue an execution to enforce the collection of a judgment rendered by a justice of the peace, in cases where a transcript has been filed and judgment docketed in the county clerk's office. Simpkins v. Page, 1 Code Rep., 107.