for, than were actually and in good faith travelled for that purpose; that he had, at the time, no other official or private business upon the route so travelled; and that the travelling fees are charged upon one mandate only, which must be attached to or described in the affidavit. The justice taxing the fees must be satisfied that the miles charged for were actually and necessarily travelled, as stated in the affidavit. [L. 1869, ch. 820, § 2 (7 Edm., 480.] TITLE 5. court, a com mission. § 3325. A party recovering costs in an action before a justice of Justice's the peace, in whose behalf a commission has been issued, and who fees upon introduces in evidence a deposition taken thereunder, is entitled to recover his actual disbursements thereupon, not exceeding the following sums: commissioner's fees for taking and returning testimony, one dollar; each subpoena issued, or oath administered, by the commissioner, six cents; expense of serving each subpoena, twenty-five cents; each witness's fees for each day's attendance before the commissioner, twenty-five cents; postage for sending and returning the commission and papers annexed thereto, one dollar. [L. 1841, ch. 138, § 3 (4 Edm., 546).] Id.; juror's § 3326. Except as otherwise specially prescribed by law, a per- Id. son, notified to attend as a juror, is entitled to twenty-five cents, for attending and serving, upon the trial of an action or the hearing of a special proceeding, before a justice of the peace; and to ten cents for attending to serve, where he is not sworn. [2. R. S., 265, § 228 (2 Edm., 273); L. 1866, ch. 692 (6 Edm., 806).] nesses, § 3327. A witness is entitled to twenty-five cents, for each day's Id.; witactual attendance, before a justice of the peace, in an action or a fees. special proceeding, or before a commissioner appointed by a justice of the peace, or before a justice of the peace taking a deposition to be used in a court, not of record, of another state, or a territory of the United States. [Same section of the R. S.; L. 1866, ch. 692, § 10.] to be paid § 3328. A justice of the peace, or a constable, juror, or witness, Id.; fees before a justice of the peace, is not obliged to render any service before services TITLE 5. Id.; by whom fees specified in this title, without the previous payment or tender of his fee therefor. [See 2 R. S., 650, § 6 (2 Edm., 670); and § 3281.](*) § 3329. In an action before a justice of the peace, if any services to be paid are rendered for a party, and he neglects to pay the fees allowed Certain special provisions therefor by law, the other party may pay those fees, and the amount thereof must be taxed as part of his costs, if he recovers costs. [New.] § 3330. The allowance of a fee, by this title, does not apply to a excepted case, where special provision is otherwise made by statute for compensation for a particular service. from this title. Provision as to [New.] § 3331. Where an officer has, when his* title takes effect, comchange in menced the performance of a service, for which a fee is allowed by the statutes heretofore in force, he is entitled to the fee so allowed, for the completion of that service, and he is not entitled to the fee for the same, or a corresponding service, allowed by this title. [New.] This title applies to § 3332. Except as otherwise expressly prescribed therein, this civil cases title does not apply to a service rendered in a criminal action or only. special proceeding, in a court or before an officer. [This leaves the fees of justices, constables, etc., in criminal cases, to be regulated by the former statutes, which for that purpose are not affected by this Code, or the general repealing act of 1880.] 156 *Error for "this." (a) See page 352 PART II. PROVISIONS OF THE CODE OF CIVIL PRO. PRELIMINARY NOTE.-This Part contains all the provisions of the Code of Civil Procedure, which relate to proceedings before justices of the peace, either because they are general by their terms, and therefore include justices' courts, with others; or because, being primarily applicable only to proceedings in courts of record, they are applied to proceedings in justices' courts by express references thereto, in provisions relating to the latter tribunals. The application to particular courts, etc., of the provisions of the Code of Civil Procedure is regulated by § 3347, which will be found in this Part; but some explanations may be required, in order fully to understand the effect of that section. In the first place, attention is called to the qualification at the beginning of § 3347, whereby it is provided, that where a particular provision "expressly designates the courts, persons, or proceedings, affected thereby," it is to be deemed excluded from the general directions subsequently given. By the operation of this qualification, many sections are applicable to courts not of record, and therefore included in this Part, although they are found in chapters, which are, by the provisions of § 3347, confined to proceedings in courts of record; for instance §1176 and § 1179, each of which is, by its terms, applicable to "a court of record or not of record." Secondly, it will be seen, that no special MANUAL, directions are given in § 3347, with respect to the application to particular courts, of chapters 1, 2, 3, and 4; chapter 9; article 3 of title 1 and title 2 of chapter 11; chapter 12; chapters 14, 15, 16, 17, 18, 19, 20, and 22, besides certain divisions of, or particular sections contained in, other chapters, the remainder of which is made applicable only to courts of record. Consequently the application of the provisions contained in those chapters, or parts of chapters, is regulated by the principles which govern the application of any other statute. They bind all persons who, and all courts which, can be affected thereby; so that the application to justices' courts of each of those provisions, in the absence of special directions, contained in the same or some other provision, will be regulated by its subject-matter. If it relates to causes of action or proceedings, of which a justice of the peace has no jurisdiction, or gives directions which cannot be followed in a justices' court (as, for instance, where it requires action by the sheriff or the clerk), it is evidently not applicable. So also where, without being itself inapplicable for these reasons, it is connected by close interdependence with others which are inapplicable; as for instance, § 1902, giving a cause of action for causing death by negligence, between which and § 1904 there is such an inseparable connection, that the former section is not deemed applicable to justices' courts. With these principles present to the mind, it is believed that the reasons for including in or rejecting from this Part, particular sections of the Code of Civil Procedure, as applicable or not applicable, by their terms or by § 3347, to proceedings before justices of the peace, will be made apparent with little difficulty. The other class, consisting of provisions, which, not being primarily so applicable, are applied by express references, calls for no special explanation. Those sections are distinguished in this Part, by asterisks appended to their sectional numbers, and in a foot note to each is a reference to the section whereby it is so applied. In applying them, the qualifying clause of § 3134, on page 127, ante, must not be overlooked. 158 PART II. CHAPTER I. (EXTRACTS.) GENERAL PROVISIONS RELATING TO COURTS, AND TITLE I. The courts of the State; their general powers and attributes, and general regulations pertaining to the exercise thereof. ARTICLE FIRST. ENUMERATION AND CLASSIFICATION. §3. [Amended, 1877.] Each of the following courts of the State Courts not is a court not of record: 1. Courts of justices of the peace in each town, and in certain cities and villages. 2. Courts of special sessions of the peace in each town, and in certain cities and villages. 3. The district courts in the city of New-York. 4. The police courts in certain cities and villages. 5. The justices' court of the city of Troy. 6. The municipal court of the city of Rochester. [Co. Proc., part of § 9; L. 1834, ch. 271, and acts amending the same (3 R. S., 5th ed., 417); L. 1872, ch. 129, tit. 2, § 11; and L. 1876, ch. 196.] of record. provision jurisdiction, etc. § 4. [Amended, 1877.] Each of those courts shall continue to General exercise the jurisdiction and powers now vested in it by law, accord-ris ing to the course and practice of the court, except as otherwise prescribed in this act. [From Co. Proc., § 10, and part of § 469. The object of this provision is to preserve the existing practice, etc., wherever this act is not applicable.] |