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the superior court; and all the proceedings in a case of that description were accordingly set aside. The powers and offices of the general, special, and trial terms of these courts, (the latter term being synonymous with that of circuit court.) are identical with those of the supreme court before noticed. The practice in them is regulated by the general rules of the latter tribunal; but the superior court has also published a further set of rules for its own guidance, with reference to the arrangement of the business before it, and the mode of transacting that business. The common pleas has likewise made some few regulations on similar matters, particularly in reference to the hearing of appeals from the marine and justices' courts.
It has before been mentioned that the appeal from the general terms of both these tribunals, lies direct to the court of appeals without any intervening jurisdiction, and that their appellate cognizance over the inferior courts within the city, is, since the Code of 1849, peculiarly exercised by the court of common pleas, under secs. 34 and 352.
OF THE MAYORS' AND RECORDERS' COURTS OF CITIES.
It will not be necessary to detain the reader at any length on the subject of the powers and jurisdiction of these courts, as, with reference to the cognizance of actions in general, they are substantially the same as those treated of in the last division; but with the important exception that mere service within the limits, is not here sufficient to confer jurisdiction, but, under subdivision 2 of sec. 33, as before cited, absolute residence of all the defendants within the city in which each of such courts is situated, is an absolute prerequisite to its exercise of any functions whatever, except in cases strictly local in their nature, and falling as such within subdivision 1 of that section. These courts are likewise devoid of any appellate jurisdiction whatever, and their own proceedings are not subjects of review by the court of appeals, until they have been previously submitted to the intermediate jurisdiction of the supreme court.
The recent provision as to removal into the supreme court, of cases pending in these jurisdictions, in which the judge is, in any manner, incapable of acting, will, of course, be noticed.
It would seem that by the terms of sec. 470, if strictly construed, the rules of the supreme court are not binding upon these tribunals, but only on the county courts ; but there can be little doubt that in practice they will be found the safest, if not the only safe guides to follow.
The statutory provisions on the subject of the organization of these courts, will be found collected in volume 2 of the last edition of the Revised Statutes, pages 293 to 311. The cities in which they are thereby established, are Albany, Hudson, Troy, Buffalo, and Utica, and also Rochester; but the last court has since been abolished by c. 303 of the laws of 1849. In vol. 3 of the same edition, pages 702 to 708, inclusive, will be found various provisions in relation to the same courts, and also those establishing a similar court in the City of Oswego, subsequently amended by c. 134, of the laws of 1849.
The city court of Brooklyn was established by c. 125, of the laws of 1849, amended by c. 102, of the laws of 1850.
By c. 138, of the latter, the act as to the establishment of these courts in Buffalo is amended.
OF JUSTICES' COURTS IN GENERAL, INCLUDING THE MARINE AND
JUSTICES' COURTS IN THE CITY OF NEW-YORK.
In pursuing the analysis of the different courts of civil jurisdiction within this state, whose practice and proceedings are affected by the code, we come, in the last place, to the courts of inferior jurisdiction above enumerated. For all general purposes the powers of these different courts are substantially the same, though the marine court, under sec. 65, possesses peculiar authority in reference to actions on contract, in respect of services performed, or of tort for injuries committed on board vessels in the merchant service; subject however, in all respects, to the paramount authority of the United States' courts, in cases of admiralty or maritime jurisdiction.
The general provisions on the subject of these courts, are contained in title VI. of part I. of the code, and the boundaries of their jurisdiction are laid down in sec. 53, when read in connection with the provision of 65, above referred to, and also with those in reference to actions upon the charters or by-laws of the corporation of the different cities in which justices' courts are held, contained in the same and the two following sections.
The plan before laid down for the general scope of the work, forbids any lengthened discussion on the subject of this jurisdiction ; but it may be shortly defined as limited, in ordinary cases, to causes of action where the value of the matter in dispute does not exceed $100, but as comprising a very general cognizance of controversies within that limit, save those only which, by sec. 54, are made the subjects of special exception. In actions on surety bonds taken by these courts in the exercise of their jurisdiction, their powers are of wider extent; and, in reference to the taking of judgments by confession, under the provisions of the revised statutes, those powers extend to all cases where the amount confessed does not exceed $250. A plaintiff cannot, however, split up an undivided demand into different actions for the purpose of conferring jurisdiction, though it would seem he may consent to reductions, or, on too large a recovery, may remit the excess for that purpose. It would seem, also, that by consent of the defendant, but not otherwise, a larger demand may be divided, in order to the confession of separate judgments for different portions of it.
By section 54, the following causes of action are excepted from the jurisdiction of these courts :
1. Cases to which the people are a party, except for penalties within the limitation above laid down.
2. Cases in which the title to real property shall come into question.
3. Civil actions for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction.
4. Matters of account where the sum total of the accounts of both parties to the controversy exceeds $400, and
5. Actions against executors or administrators as such. N. B.-Parties standing in these capacities are, however, competent to sue as plaintiffs, and the defendant, in that case, may plead, and if he prevail, may enter and enforce judgment for a set off, as in the higher courts.
With reference to No. 4, it might probably be held, that an action may be maintained in respect of a balance actually struck and settled, though the aggregate items of the accounts on which it arises exceed $400, provided no question arises on the accounts themselves as such. When, however, such is the case, and, it would seem, whenever the objection is formally taken, the court has no jurisdiction, however small the actual balance may be.-Lockwood v. Isaacs, 1 C. R. 29.
The mode of assertion of the defendant's claim to exemption from suit in these courts, where the title to real property may come into question, is pointed out by sections 55 to 59 inclusive. (The power given to the justice by sec. 62 to continue any personal causes of action, independent of those stayed on this account, will of course not be overlooked.) The course to be pursued, on this objection being taken, is the putting in of a written answer, showing such to be the case, accompanied by an undertaking, executed by one or more sufficient sureties, in a penalty of $100, conditioned for the giving a written admission of service of summons and complaint in the county court, in the event of the same being deposited with the justice within thirty days thereafter, such admission to be given within ten days from the time of that deposit; and conditioned also for the defendant's rendering himself amenable to all process of that court, in those cases where, at the time of giving the undertaking, he has already been arrested under the authority of the inferior tribunal. It would be prudent, on the preparation of an undertaking of this nature, to follow the rules hereafter laid down with reference to those required by the superior courts; but this does not appear to be imperative, but to rest in the discretion of the justice. In Davis v. Jones, 3 C. R. 63, it was held that the limitation of ten days in the above provision is absolutely imperative, and that the court above possesses no power of curing the defect by amendment, if the defendant, through ignorance of the deposit of the summons and complaint with the justice, (of which it would seem the plaintiff is not bound to give any notice,) omit to furnish
the required admission within the period so limited ; the mere deposit of the summons not being a commencement of the action sufficient to give the court jurisdiction to exercise its general powers of amendment, under secs. 173 and 174.
On the delivery of the undertaking above described, the cause is to be discontinued before the justice, but, if the defendant omit to take this step, his jurisdiction is restored notwithstanding the answer, and the defence of title being in question will then no longer be admissible, unless that fact appear upon the plaintiffs own showing, in which last event the action cannot be maintained, but must be dismissed with costs; and it would seem that in such cases the justice cannot take cognizance of the cause even by consent. See Striker v. Mott, 6 Wendell 465.
The point as to whether title to lands does or does not come into question, appears to be cognizable by the justice in the first instance, where there is no reasonable doubt on the subject, but not where any such doubt exists. Whenever any real point of this nature arises, the case is likely to be one of difficulty, and can only be dealt with by the higher tribunal. The mere pleading of a grant of the legislature, in an action brought for the assertion of a public right, was held in Brown v. Scofield, 8 Barb. S. C. R. 239, (an action for damages for obstructing a navigable river,) as not, in its nature, a case of claim of title to lands sufficient to oust the justices' jurisdiction. The assertion of a private right of way has, however, been uniformly held to be a question involving title. See Striker v. Mott, above referred to; Boyce v. Brown, 3 How. 391 ; 7 Barb. S.C. R. 80.
It will be observed on a comparison of the Codes of 1849 and 1851, that the county court is now substituted for the supreme court, as the tribunal in which the action in lieu of that discontinued before the justice, is, for the future, to be brought in all cases. See, however, the error in printing sec. 68, before noticed.
On the bringing of such substituted action, the suit is in effect one in the county court, and judgment is to be entered on its decision as such. In one respect, however, the proceedings differ, and that is with reference to the pleadings. It was at first held that these must be the same as those before the justice, and that they could not be amended in matters of substance, and also that a reply could not be now put in, in such a suit