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a. A judge of a district court, or of the marine court of the city of New York, may, at the request of the plaintiff, depute any person other than the plaintiff, to serve the summons. Monteith v. Cash, 1 Smith, 412.

b. A judge of a district court in the city of New York may proceed with the case im mediately upon the expiration of the time named in the summons, and if he proceeds and renders judgment, he has no power to open it. The court of common pleas may, on appeal, relieve a party from such a judgment upon an affidavit showing that the defendant was misled by a custom of the judge to wait, for a certain period, and setting forth such a defence as might satisfy the court that manifest injustice bad been done. Appleby v. Strange, 1 Abbott, 143 ; Klenck v. De Forest, 3 Code R., 185.

c. Where an action is commenced in a district court, by a long summons, personally served upon the defendant within the county, the residence of the defendant and jorisdiction of the court will be presumed ; but where the action is commenced by a short summons or attachment, the same, being extraordinary process, must be sustained by proof of the facts neces sary to give jurisdiction. Sperry v. Major, 1 Smith, 361.

d. A justice cannot proceed by a short summons against a defendant without proof of his non-residence, and if he does proceed without such proof, the error is not an error in fact, within the meaning of section 366. Ib.

e. By appearing and pleading to the merits, the objection to the jurisdiction of the court is waived. 16., and Bray v. Andreas, ib., 387.

f. Unless there is proof of the defendant's non-residence, in an action commenced by a short summons, either before suit or on the trial, the fact of non-residence will not be presumed on appeal. Ib.

g. After a justice has adjourned the hearing of a cause, a subsequent adjourn: ment without the consent and in the absence of the parties, is irregular. Redfield v. Florence (not reported), N. Y. Com. Pleas, Feb., 1854.

h. On the return day of a summons, both parties appeared, put in their pleading, and took an adjournment to a future day. After the plaintiff had left the court, the defendant on the same return day demanded a jury, which was refused on the ground that the demand was made too late, and in the absence of the plaintiff. On the adjournment day the cause was tried and judgment rendered for the plaintiff. The defendant appealed, and then the plaintiff

, for the first time, had notice of the demand and refusal of a jury. The judgment was affirmed ; and Woodruff, J., in delivering the opinion of the court, after considering the question whether a demand of a jory may be made after an adjournment to a future day, and without deciding the question, yet intimating that it could not, concluded: "But without pursuing this inquiry, I have no hesitation in saying that this demand, if it may be made in the absence of the adverse party, should be brought to his notice, and an objection that a jury have not been summoned, taken on the adjournment day. The plaintiff in such an event may choose to regard the demand as sufficient, or consent to a venire to avoid question.' He should at least have an opportunity to accede to the defendant's request, and not be in effect compelled unwillingly to continue his proceedings in the face of an objection of which he has no notice. We will not reverse, where a defendant makes such a demand in the absence of the plaintiff, and subsequently goes to trial without objection, and without the plaintiff being apprized of what has taken place, and where a defendant after a trial upon the merits, raises this objection for the first time in the plaintiff's hearing on the appeal.” Shannon v. Kennedy, 1 Smith, 348.

i. Jurors, how to be summoned, impannelled, and challenged in these Courts.The act relating to these courts passed in 1813, (2 Rev. Laws, 1813, p. 374) s. 95, prescribes the number of jurors to be summoned, and fixes it at twelve; and the same section fixes sir as the number who shall be impannelled to try the cause. This statute, so far as it determines the number of jurors to be drawn, has not been repealed or altered. Neither the statute of 1813, nor any other statute, requires that the constable shall select the jurors. The act of 1813 requires that the justice shall nominate in a panel, the names of eighteen persons, and that the venire shall direet the constable or marshal to summon any twelve of these persons to appear ;

but the law of 1847, ch. 495, in terms requires that the jurors thereafter to be summoned for the several courts authorized to try issues of fact in the city of New York, shall be drawn upon requisition by such courts respectively, directed to the county clerk. The district courts fall within this description, and all laws conflicting with the provisions of this act are expressly repealed. The manner of nomination and selection prescribed in the act of 1813, and the requirements of the act of 1820, (Laws of 1820, ch. 1), directing that the jurors for these courts shall be summoned from the wards composing the district, are therefore repealed. And a justice has no authority to issue a venire for jurors selected from the particular wards composing his district. He should make a requisition upon the county clerk for the requisite number of jurors, and the certificate of drawing by such clerk delivered to the constable, would be his warrant for summoning them to attend. That portion of the act of 1813, which limits the number of jurors to be ordered, to eighteen, and the number to be summoned, to twelve, and the number to be im pannelled, to six, remains unrepealed, and in the requisition to be made upon the county clerk, that act is in this respect to be observed. But any irregularity in summoning the jury is ground for challenge to the array, and must be made in the first instance. And if no objection is made until after the jury are impannelled and sworn, the objection comes too late. And the court on appeal will not interfere unless in a case where injustice has been done. See the Mayor of N. Y. v. Mason, 1 Abbott, 352.

a. The code has not repealed the law depriving the district or justices' courts in the city of New-York, of jurisdiction in actions brought for the recovery of seamen's wages. Collins v. Underwood, 1 Smith, 318.

b. An election for submitting the charter as amended for a vote by the people is not a special election within the meaning of chapter 6, part 1 of Revised Statutes; and a justice may hold court ou that day. Redfield v. Florence (not reported), N. Y. Com. Pleas, Feb. 1854.



The Justices' Courts of Cities.

§ 67. [60.] 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 bave jurisdiction, as provided by sections 53 and 54.

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

c See as to these courts 2 R. S., 323. Laws of 1848, p. 66, enact that all the provisions of the act entitled "An act in relation to fraudulent debtors," passed March 30th, 1838, shall extend to judgments rendered before the justices' courts of the cities of Albany, Troy, and Hudson.

d. And laws of 1849, p. 23, enact that the courts of justices of the peace in the city of Rochester, shall have jurisdiction in actions upon the charter or by-laws of said corporation, where the penalty or forfeiture shall not exceed $100. Are these provisions repealed ?


General Provisions.

$ 68. [61.] (Amended 1849, 1851.) Sections 55 and 64 applicable to this title.

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 action 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 except, also, that in the city and county of New York, a judgment of 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. The amendment of 1851, was the insertion of the words—and be deemed," printed in italic.

b. The justice is bound to give a transcript on demand to any party interested in the jadgment

, and on being paid for such transcript. (Laws of 1841, p. 114.) If the justice refuses, a mandamus will lie to compel the delivery of the transcript. 8 Cow., 133.

c. The filing a transcript deprives the justice of any further control over the judgment. Re Sholts, 2 Cow., 506.

d. The transcript may be made after the expiration of the justice's term of office. Maynard 5. 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.,

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e. This section corresponds to section 61 in the code of 1848, and that section was held not to make sections 143 and 148 (ss. 121, 127) applicable to pleadings in just:ce's courts. Cornell v. Smith, 2 Sand., 290; 3 Code Rep. 201. Bat section 168 has been held to be applicable to pleadings in justice's courts. See notes to sections 63 and 168.

f. After a judgment in a county court of one county, if an execution be issued into another county before any transcript filed in that county, the court may order a transcript to be filed nunc pro iunc. Roth v. Schloss, 6 Barb., 308.




III. Parties.

X. Costs.


Form of Civil Actions.

Section 69. Distinction between actions at law and suits in equity, abolished

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

$ 69. [62.] (Amended 1849.) Distinction between actions at law and suits in equity, 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.

a. The effect of this section has been much discussed. See note in the previous editions of this work, where the cases and remarks of judges are collected. The note is not deemed of sufficient practical importance to warrant its further repetition.

$ 70. [63.] (Amended 1849.] Parties, how designated.

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

§ 71. [64.] Actions on Judgments.

No action shall be brought upon a judgment rendered in any conrt of this State, except a court of a justice of the peace, between the same parties, without leave of the court for good cause shown, on notice to the adverse party; and no action on a judgment rendered by a justice of the peace, shall be brought in the same county within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed.

4. Under section 64 of the code of 1848, which in the parts material to the question are identical with this, it was held by the superior court that assistant justices' courts came within the description of justices' courts in this section mentioned, and that a justice's judgment recovered before the code took effect, was not within [section 64 of code of 1848] this section. Maguire v. Gallagher, 2 Sand. 402; 1 Code Rep. 127. The court of common pleas for the city and county of New York have, however, decided differently in Mills v. Winslow, 3 Code Rep. 44. [See note to sub. 1 of sec. 53, ante.]

b. This section as it stood in the code of 1848, was held not to prevent a judg. ment creditor, whose execution was issued and returned unsatisfied before the code went into effect, from proceeding against his debtor by a complaint in the nature of a creditor's bill, without first obtaining the leave of the court in which the judgment was recovered. Quick v. Keeler, 2 Sand 231; 3 Code Rep. 205; Dunham v. Nicholson, 2 Sand. 636.

c. A bona fide assignee of a judgment, one who was not interested in nor privy to the recovery of the judgment, who has become the owner by purchase and assignment, may bring an action upon it without first obtaining leave of the court. This section only relates to an action between the same parlies. Toffts v. Braisted, Abbott, 84.

d. Burrough v. Hull f Smith (not reported), was an action on a judgment rendered before the code went into effect. The action had been commenced without leave of the court previously obtained, and on that ground motion was made to set aside the summons and complaint. Judge Roosevelt said,

" Whether the summons and complaint in this case be considered strictly as an action on a judgment, or, more liberally, as a proceeding to enforce a judgment, it comes within the code. It is a proceeding, in the form of an action to enforce a judgment. The object of the amendment of 1851 was to terminate, as soon as possible, the necessity of retaining two different systems of procedure, by applying the provisions of the code to every case in which they were applicable without doing injustice to vested rights. The evil of accumulating costs by piling judgment upon judgment, was as great in the case of antecedent as in the case of subsequent judg. ments; and no reason can be assigned for restraining the practice in the one case, which is not equally cogent in the other. The ordinary and proper mode of collecting a debt which already is in judgment, is by issuing an execution. Where, however, circumstances have occurred since the judgment was ordered, such, for example, as

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