TITLE 1. Criminal contempts. Id.; how punished. A defendant designated in section 2879, section 2880, or section 2881 of this act, is deemed, for the purposes of this section, a resident of the town or city where the person, to whom a copy of the summons is delivered, resides. [Id., §§ 8 and 9, consolidated and amended, in accordance with the construction given to § 9, in Hunter v. Burtis, 10 Wend., 358, and Onderdonk v. Ranlett, 3 Hill, 323; also by inserting in subd. 2, the words, "or his attorney;" and by adding subd. 4. See L. 1873, ch. 43, in appendix, § 2861, subd. 3, § 2862, and § 2919, post.] § 2870. A justice of the peace has power to punish, for a criminal contempt, a person guilty of either of the following acts: 1. Disorderly, contemptuous, or insolent behavior towards him, while engaged in the trial of an action, the rendering of a judgment, or any other judicial proceeding; where such behavior directly tends to interrupt the proceedings, or to impair the respect due to his authority. 2. Breach of the peace, noise, or other disturbance, directly tending to interrupt his official proceedings. 3. Resistance wilfully offered, in his presence, to the execution of his lawful mandate. He has not power to punish, for a criminal contempt, in any other case. [2 R. S., 273, Part 3, ch. 2, tit. 4, § 274 (3 R. S., 5th ed., 460; 2 Edm., 281), amended by inserting in subd. 1 and 2 the word, "directly,' so as to make the section conform to the similar provision, relating to courts of record, in § 8. The word, "mandate," is defined in § 3343, subd. 2. The rulings in Rutherford v. Holmes, 66 N. Y., 368, cited also in the note to § 3001, post, are applicable to this section, as well as to the section of the R. S.] § 2871. Punishment for a contempt, specified in the last section, may be by fine not exceeding twenty-five dollars, or by imprisonment in the county jail not exceeding five days, or both, in the discretion of the justice. Where a person is committed to prison for the non-payment of such a fine, he must be discharged at the expiration of ten days; but where he is also committed for a definite time, the ten days must be computed from the expiration of the definite time. [Id., § 275, amended by adding the last clause.] TITLE 1. to be § 2872. A person shall not be punished by a justice of the peace offender for a contempt, until an opportunity has been given him to be heard heard in his defence. And, for that purpose, the justice must issue a warrant, directed, generally, to any constable of the county, requiring the constable to bring the offender before him. [Id., § 276, amended by the insertion of the words, "directed, generally, to any constable of the county."] convic § 2873. A justice, who convicts a person of a contempt, must, Record of within ten days after the conviction, make up, subscribe, and file in tion. the county clerk's office, a record thereof, stating therein the particular circumstances of the offence, and the punishment awarded by him upon the conviction. [Id., § 277, amended by condensing its language, but with no material change, except the substitution of the words, "the conviction," for its date," and the clause, "punishment awarded by him. upon the conviction ", for "judgment rendered thereon."] § 2874. A warrant of commitment for a contempt must set forth Requisites the particular circumstances of the offence; otherwise it is void. [Id., § 278.] of commit ment. paid to or superintendent of the poor. § 2875. An officer, who collects or receives a fine, imposed by a Fine to be justice of the peace for a contempt, must, within ten days there- overseer after, pay the money, for the benefit of the poor, to the overseer or superintendent of the poor of the town, city, or district, wherein the fine was imposed; or, where there is no such officer, to the officer or officers performing corresponding functions under another name; unless the board of supervisors has directed the payment of fines and penalties to the supervisor of the town, in a case where it is authorized by law so to do. [New. There are several local statutes for the support of the poor, whereby certain officers, whose official titles and territorial jurisdiction vary considerably in different localities, are charged with the duties which elsewhere devolve upon the overseer or superintendent of the poor. This section is so framed as to provide for the payment of fines to such local officers, where they have been created.] [2] 9 TITLE 2. TITLE II. Commencement of action; appearance of parties; provisional remedies. ARTICLE 1. Commencement of action. 2. Appearance of parties. 3. Order of arrest. 4. Attachment of property. 5. Replevin, ARTICLE FIRST. COMMENCEMENT OF ACTION. Action; how commenced. SEC. 2876. Action; how commenced 2877. Contents of summons. 2878. Service of summons. 2879. Id.; upon a corporation. 2880. Id.; special provision relating to railroad corporations. 2881. Id.; relating to express companies. 2882. Last two sections qualified. 2883. Second and third summons; effect thereof. 2884. Where name of defendant is unknown. 2885. Return of summons. § 2876. An action is commenced before a justice of the peace, either by the voluntary appearance and joinder of issue by the parties, or by the service of a summons. [2 R. S., 227, Part 3, ch. 2, tit. 4, § 11 (3 R. S., 5th ed., 428; 2 Edm., 243), amended by substituting" commenced" for "instituted;" "joinder of issue by " for "agreement of," and "the service of a summons" for "process; " and by omitting at the end, "when by process, it shall be either a summons, a warrant, or an attachment." Under the statutes superseded by this chapter, there were no less than six different kinds of process for the commencement of an action in a justice's court, to wit: long summons, short summons, long attachment, short attachment, warrant, and summons in an action to recover the possession of personal property. This diversity has been a fruitful source of confusion and litigation; to remove which this section prescribes a summons as the only process by which an action can be commenced, leaving the replevin of the property claimed, the arrest of the defendant, or the attachment of his property, to be obtained by a separate proceeding, as in courts of record. The other amendments supersede sections 12 and 13 of the R. S.; the only substantial change being, that the action is to be deemed commenced at the time of the service of the summons, as in courts of record. It has been provided, in § 400, that the delivery of the summons to the proper officer shall be deemed equivalent to the commencement of an action, for the purpose of saving the statute of limitations. The insertion of the words, "joinder of issue," is in conformity with the decision in Lester v. Crary, 1 Denio, 81.](*) ART. 1. of sum § 2877. The summons must be directed, generally, to any con- Contents stable of the county where the justice resides; and it must command mons. him to summon the defendant to appear before the justice, at a place specified therein, to answer the complaint of the plaintiff in a civil action. Where the summons is accompanied with an order to arrest the defendant, it must be made returnable immediately upon the arrest of the defendant, within twelve days after the day when it was issued; in every other case, it must be returnable at a time therein specified, not less than six nor more than twelve days after the day when it was issued. [Id., § 14, amended by omitting in the first sentence before the word "place," the words "time and;" and before the words, "to answer," the phrase, "not less than six nor more than twelve days from the date of the same"; also by substituting "the complaint of the plaintiff in a civil action" for "the plaintiff in the plea, in the same summons to be mentioned," in accordance with the decision in Smith v. Joyce, 12 Barb., 21; Reno v. Pinder, 20 N. Y., 298, and other cases; and by the addition of the last sentence. The general repealing act of 1880, also abolishes the provisions of the non-imprisonment act for a short summons or a short attachment, where one of the parties is a non-resident. L. 1831, ch. 300, §§ 32, 33 (3 R. S., 5th ed., 462; 4 Edm. 472). Where a defendant is arrested, justice to him, as well as to the plaintiff, requires that the summons should be returnable immediately; but the commissioners thought, and most persons who are familiar with the proceedings in justices' courts, wil' agree with them, that the provisions for short process, where the action was commenced in the ordinary way, had survived their utility, since the facilities of communication between different portions of the State have become so great. It very rarely happens, that an action is tried upon the return day of a short summons. The former multiplicity of forms of process was, as already stated, an evil, which has been remedied by abolishing all those forms, which could be dispensed with. For general provisions, as to the form of summons and other mandates, see § 22 and § 3135, post.](") summons § 2878. Personal service of the summons must be made by de- service of livering a copy thereof to the defendant; except where it is specially prescribed in this chapter that personal service may be made by delivering a copy to another person. Where service of a summons is personal, it must be made at least six days before the time of ap 11 TITLE 2. Id.; upon a corporation. Id.; special provision pearance specified therein; except where it is accompanied with an order of arrest. [Substituted for id., § 15, as amended by L. 1876, ch. 277. In this section the first exception has been extended to cover cases like those under §§ 2880-2882, post; the provisions for a service by leaving a copy at the defendant's last place of abode have been omitted, and the last exception has been added. Service by copy had generally become an idle ceremony, since the repeal of the provision of the R. S., allowing a warrant to be issued upon the return of a summons served by copy; except, perhaps, that it might occasionally have saved the statute of limitations, within the ruling of Cornell v. Moulton, 3 Denio, 12. The provisions of § 2883, post, render it unnecessary to preserve that mode of service for such a purpose. As a service, either personally, or in one of the modes provided by special statutes as a substitute for personal service, is ordinarily necessary before a judgment can be taken, the mode of service by leaving a copy has been abrogated. Under §§ 2877 and 2898, post, an order of arrest may be executed at any time before the return day of the summons; and, for obvious reasons, it is not only proper, but necessary, that the same rule should govern the service of the summons. No special provision is necessary for the service of a summons accompanied with a warrant of attachment, or a requisition in repievin; because it is provided, in articles 4 and 5, that the warrant or requisition must be executed six days before the return day. Post, §§ 2910 and 2922. Where it is not otherwise specially prescribed by law, as is the case in this section, time is to be reckoned in accordance with § 788, which is made applicable by § 3347, subd. 6, as is also § 787 and § 826, though the latter sections will probably be of no use at present in a justice's court. ](*) § 2879. Where the defendant to be served is a corporation, the summons may be personally served upon it, by delivering a copy thereof to an officer or person, to whom a copy of the summons in an action, brought against the corporation in the supreme court, might be delivered, as prescribed in sections 431 and 432 of this act; or, to any director or trustee of the corporation, by whatever official title he is called.() [Co. Proc., § 64, last clause of subd. 15, and L. 1847, ch. 470, § 45, last clause (4 Edm., 589), consolidated, and verbally amended. The latter provision was not repealed by the Code of Procedure. Wheeler v. N. Y. and H. R. R. Co., 24 Barb., 414. It is, however, not to be found in the 5th edition of the R. S. See § 2869, subd. 4.] $ 2880. Where the defendant to be served is a domestic railroad relating to corporation, and no officer thereof resides in the county, to whom a copy of the summons may be delivered, as prescribed in the last railroad a согрога tions. 12 (a) Sections 787 and 788 are on page 210; section 826 on page 214; and section 3347 on page 360. |