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Falon v.

Note to rule 14. See section 65 of this code, and note.

Note to rule 15. a. The section corresponds to section 57 in the code of 1848. That section was decided not to extend to the effect and operation of pleadings, and not to make sections 143 and 148 (ss. 121, 127,) applicable to pleadings in justice's courts. Cornell v. Smith, 2 Sand., 290. But section 168 has been held to apply to pleadings in justices' courts. See note to rule 8, supra, and note to section 168 of this code.

b. Prior to the code going into effect, a plea of puis darrein continuance was held the only means the defendant had of introducing matters of defence arising after the issue joined and before the trial. Ressequie v. Brownson, 4 Barb., 541 ; and where a defendant tendered such a plea and it was refused, and he appeared on the trial and examined witnesses, it was held on appeal that he had not thereby waived his right to such plea. Ib. It is presumed that where such a plea would have been proper, an amendment of the answer already made will be allowed. See Houghton v. Skinner, 5 Pr. R. 420.

c. Section 399 is applicable to justices' courts as a rule of evidence. Keese, 8 Pr. R. 341; Gates v. Ward, 17 Barb., 427.

General Note. d. Aster a justice has entered judgment his power is at an end. He cannot open a default. Sperry v. Major, 1 Smith, 361; Appleby v. Strange, 1 Abbott, 143.

e. A defendant in a justices' court is not entitled to a long adjournment, without giving, in addition to a proper affidavit, security for his appearance and for payment of damages and costs. Belshaw v. Colie, 1 Smith, 213.

f. It seems that when such affidavit and security are given, the justice has no discretion, but the right to an adjournment is absolute. Ib.

g. Since 1840, a short summons or attachment is the proper process against nonresidents, and any other process is void. Thompson v. Sayre, 1 Denio, 175.

h. Whenever a judgment is rendered by a justice against any party (unless where it is otherwise expressly provided), it must be with costs of the suit; but the whole amount of all the items of such costs are not in any case, to exceed five dollars. The costs of a commission to examine foreign witnesses may be taxed in the judgment, although the same exceed the sum of five dollars. (Laws, 1841, p. 112.)

See further note to section 66, post.

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. § 65. [58.] (Amended 1849.) Jurisdiction.

The marine court of the city of New York shall have jurisdiction in the following cases, and no other :

* “Both parties have argued this point on the supposition that the provision of the revised statutes relating to justices' courts apply to this city. By a section at the

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

2. In an action upon the charter or a by-law of the corporation of the city of New York, where the penalty or forfeiture shall exceed twenty-five dollars, and not exceed one hundred dollars.

3. In an action between a person belonging to a vessel in the merchant service, and the owner, master, or commander thereof, demanding compensation for the performance, or damages for the violation, of a contract for services on board such vessel, during a voyage performed, in whole or in part, or intended to be performed, by such vessel, though the sum demanded exceed one hundred dollars.

4. In an action by or against any person belonging to or on board of a vessel in the merchant service, for an assault and battery or false imprisonment committed on board such vessel, upon the high seas, or in a place without the United States, of which the ordinary courts of law of this State have jurisdiction, though the damages demanded exceed one hundred dollars. But nothing in this or the last preceding subdivision of this section, shall give the court power to proceed in any of the cases therein referred to, as a court of admiralty or maritime jurisdiction.

Q. This (the marine) “ court has but a special and limited jurisdiction, both as to cases and parties; and whoever sets up its authority in a case instituted by himself, must show that the case was one of which the court had complete jurisdiction." Ford v. Babcock, 1 Denio, 158,

b. The Marine Court has no jurisdiction to issue an execution against the person. The People v. Smith, 9 Pr. R., 464.

end of that title, it is expressly providing that that title shall not apply to the courts in New York. The laws governing these courts will be found in the 2d revised laws of 1813, p. 370.” Jackson v. Wheedon, 3 Code Rep. 186; 1 Smith, 141.

The 90th section of 2 Rev. Laws 1813, providing for security in these courts in rase of non-resident plaintiffs, applies also to the marine court, and by section 32 of the act of 1831 is made to relate to a short summons issued instead of a warrant of arrest. Ib.

The security being simply given and received by the marine or a justice's court, confers jurisdiction in a suit by a non-resident. The surety is not quired to be a resident, and his qualifications are not prescribed. He may be examined or not, at the option of the court, but it is not necessary that he should be sworn. 16.

Will the court relieve the first surety by ordering new security ?

a. In an action in the marine court, if one of the parties show, by a proper affidavit, that one of the judges of that court is a material witness for him, the cause should be tried by one of the other judges. Brown v. Brown, by Woodruff, J., N. Y. Com. Pleas, Gen. Term, July, 1853, Daly and Woodruff, JJ.

b. By the laws of 1853, cap. 617, p. 1165, entitled " An act in relation to the marine court of the city of New York,” it is enacted :

Sec. 1. The marine court of the city of New York shall have jurisdiction over, and cognizance of, actions of assault and battery, false imprisonment, malicious prosecution, libel and slander, where the damages claimed do not exceed $500; and the costs in all such actions, when prosecuted in any other court in the city of New York, are hereby limited to the amount which would have been recovered in said marine court if prosecuted therein ; but in no such action shall the costs exceed the damages recovered.

Sec. 2. In cases where the jurisdiction of the said court is now limited, so there can be no recovery therein for a larger amount than $250, the jurisdiction is hereby extended so that in such cases the recovery of either party may hereafter be to the amount of $500, notwithstanding that the accounts of both parties may exceed $ 400.

Sec. 3. Section 9 of chapter 339 of laws of 1852, is hereby amended, so as to read as follows: In all actions commenced in said court, where the amount recovered shall be $100 or more, the plaintiff, where the defendant does not appear, shall recover the sum of $7, and in all such cases where an issue shall be joined and a trial had, the sum of $12, as costs, in addition to the fees now allowed by law.

Sec. 4. If judgment be given against the plaintiff for any cause in any such ac. tion, after an appearance by the defendant, the defendant shall recover $7 where judgment is rendered without a trial, and $10 where a trial shall have been had, in addition to the costs now allowed by law; and where a trial shall be postponed on cause shown, after regular notice, the court may impose costs to the amount of $5, besides disbursements, as a condition of the postponement.

Sec. 5. Any one of the justices of said court shall have power to open defaulls, on such terms as may be just and proper, in all actions tried before him ; and an appeal may be taken upon the same, from a judgment entered upon the direction of a single justice of the said court, to the justices thereof at a general term, in the same manner and with the like effect as appeals in the supreme court from the decision of a single judge to the general term; and the same costs and disbursements allowed as on appeals from justices' courts to the common pleas: the justices of said court may appoint general terms of said court at such time as they deem proper.

Sec. 6. All acts and parts of acts in conflict with the provisions of this act, are hereby repealed.

c. The act took effect July 21, 1853. As to the jurisdiction conferred by the first section, it will be observed that it is entirely at the option of the plaintiff whether he will or not be subject thereto; to prevent that section applying, it is only neces. sary that he should claim damages exceeding $500.

d. Laws of 1853, p. 992, provide that the marine court shall appoint the officers necessary to attend said court.

e. Laws of 1849, p. 201, provide for the fees in this court.

f. By laws of 1852, cap., 389, p. 647, provision is made (ss. 1, 2, 3, 4, 5) for the election of three justices of this court, the classification of such justices and their terms of office, the appointment of a clerk, and the compensation of such justices and clerk. Section 6 provides that "the words twenty-five dollars” first occurring in the 134th section of the act entitled “an act to reduce several laws relating particularly to the city of New York into one act,” passed April 9, 1813, is so amended as to read “ fisty dollars."

g. And by Section 8, the court may issue commissions to take testimony of wit. nesses residing out of the city and county of New York and to be read on the trial of actions pending in said court, in the same manner as justices of the peace now by iaw are authorized to do, which power is extended so as to authorize commissions to Issue out of the State.

G. And by Section 11. If in any suit in such court, the plaintiff makes oath that he or she cannot, for the want of some material evidence or witness, sasely proceed to trial, the court may in its discretion and upon such terms as may be deemed proper, postpone the trial for such reasonable time not exceeding three calendar moaths as will enable the plaintiff to procure such evidence or witness.

h. In a case arising under the code of 1848, the plaintiffs suing in this court were ordered to furnish the defendant with a bill of particulars, and on the plaintiffs failing to furnish such bill, the court entered a judgment of non pros. On appeal to the superior court the judgment was reversed, the court holding that since the code took effect there was no longer any provision or practice requiring a bill of particulars to be given. Section 135 (now 158) was not applicable to the complaint below. There was no allegation nor any reasonable inference that the plaintiff's demand consisted of more than 20 items. It is clear the court had not power to non pros. the plaintiff for refusing to deliver a bill of particulars. Winslow v. Kierski, 2 Sand. 304; 3 Code Rep., 201; and see sub-division 14 of section 64.

c. Where a non-resident was sued by a long summons, and appeared on the return day and answered, consented to an adjournment, appeared at the adjournment, and then objected to the jurisdiction of the court, it was held that the objection came too late, and that it inight well be inferred from the defendant's acts, that he had agreed to enter an action without process. Robinson v. West, 1 Sand. 19.

d. On an appeal from this court it was objected that the judgment was not actually entered within four days of the hearing; the court said :We do not think the objection that the judgment was not actually entered until after four days, a sufficient ground of reversal. The statute requiring justices to enter judgment in their dockets within four days, does not apply to the marine court. The judgment was pronounced within the period limited by the act ; and, although it may be true that the time for appealing would not begin to run until the judgment was actually Tendered, we think the statute was sufficiently complied with. Cohen v. Coit, 3 Code Rep., 23.

e. To set aside judgment in the marine or justices' courts, where the defendant has failed to appear, an appeal must be brought, and the application for relief made upon the justice's return and affidavits. The court of common pleas has no jurisdiction to entertain a motion for relief in such cases, until the judgment is before it upon appeal. Donnell v. Cornell, 1 Code Rep., N. S., 288.

f. In Bryan v. Sullivan (not reported) the superior court held that the provisions of the revised statutes as to justices' courts, do not apply to the marine court. A party claiming a jury trial in that court, must demand a jury on the day on which issue is joined, and before an adjournment. A subsequent amendment of the pleadings will not alter the rights of the parties in this respect. And see Jackson v. Wheedon, 3 Code Rep., 186; 1 Smith, 141.

g. To warrant a judgment against defendants sued by attachment in the marine court, it is necessary that the attachment should be served personally, if the defendants can be found in the county. If the attachment is not served personally, a summons must be issued and returned, either personally served, or that the defendants cannot be found after diligent inquiry, otherwise the justice has no jurisdiction of the person, and cannot render judgment on default of appearance. Taylor v. Harker, 1 Smith, 391.

CHAPTER II.

Justices' Courts in New York City. $ 66. [59.] (Amended 1849.) Jurisdiction.

The assistant justices' courts in the city of New York, shall hereafter be styled the justices' courts in the city of New York,* and shall have jurisdiction in the following cases :

• Now styled “District Courts in the City of New York.” Laws of 1852, p. 1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54.

471.

2. In an action upon the charter or å by-law of the corporation of the city of New York, where the penalty or forfeiture shall not exceed one hundred dollars.

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a. The city of New York is now divided into seven judicial districts. (Laws of 1848, p. 249, s. 1; Laws of 1854, p. 141, s. 1;)

1st District comprises wards 1, 2, 3, 5.
2d

4, 6, 14.
3d

8, 9. 4th

10, 15, 17. 5th

7, 11, 13. 6th

formerly comprised wards 12, 16, 18, 19, 20, 21, & 22.,

but is nuw divided by a line running through the
centre of 40th st. from the Hudson River to the East
River, and by a line running in a southerly direction
from 40th street through the centre of 6th avenue

to 14th street. 7th comprises wards 12, 19, 22. b. The statute permitted a non-resident plaintiff to sue in justice's court by a short summons, having not less than two nor more than four days to run. He could also sue by the ordinary summons, having not less than six uor more than twelve days to

Such a plaintiff sued by a summons dated January 12, and returnable Monday, January 17th ; and it was held, that such a summons conferred no jurisdiction. King v. Dowdall, 2 Sand., 131;3 Code Rep., 200.

c. An assistant justice has jurisdiction where the plaintiff resides in his district: thus where the plaintiff resided in the eighth ward, being one of the wards for which the justice was appointed, and one of the defendants resided in Queen's County, and the other in the twelfth ward, it was held, the justice had jurisdiction. Murphy v. Mooney, 2 Sand., 288,; 3 Code Rep., 200. But an assistant justice elected under the act of 1848, has no jurisdiction where the defendant and one of the plaintiffs reside in the city, and neither of the parties reside in a ward within the justice's district. Cornell v. Smith, 2 Sand., 290 ; 3 Code Rep., 201. Appearing and pleading without objection, do not waive the defect, nor conser jurisdiction, the statute being peremptory that the justice shall dismiss the cause. Ib. Hence an objection that a justice's court has not jurisdiction of the person is not waived by an answer omitting to raise it. Ib.

d. A plaintiff who has obtained a judgment in a justices' court in the city of New York in this form, cannot obtain a reversal of that judgment on the ground that he brought the action in a court out of the ward and district in which the parties resided. Fairbanks v. Corlies, 1 Abbott, 154.

e. Clerks in justices' courts in the city of New York, may take affidavits, and admin. ister oaths in said city, with the like effect as clerks in courts of record. Laws of 1851, p. 370; and see laws of 1851, pp. 271—957; Laws of 1852, p.51; Ib. 1855, ch. 293,

f. Whenever any action in said courts has been commenced by actual service of process, or where the defendant has appeared, either party may have the testimony of any witness—who is about to leave the city and county of New York, and will probably continue absent when the testimony is required-taken conditionally, to be used on the trial of such action in the same manner, and with like effect, as provided by article i. title 3, chapter 7, of the Revised Statutes, entitled “ of taking conditionally the testimony of witnesses,” (Laws of 1852, p. 471.)

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