Imágenes de páginas



ings in other

cases, where

there are different


Surplus, where there are different owners.

section thought, that although it will not always effect exact justice between the persons interested, it approximates as nearly to a just settlement of the perplexing questions, referred to in this note, as convenience, a due regard to the interest of the litigants, and the exigencies of a general rule will allow.]

§ 3110. Where the petitioner does not allege, that the animals seized were trespassing upon real property owned or occupied by him, and different persons own different animals seized, a separate special proceeding may be instituted, as prescribed in this title, against each owner, or against any two or more owners, with respect to the animals owned by him or them. Or the proceedings may be taken against all the owners jointly; in which case, each person to whom the precept is directed by his name, and each person having an interest in an animal seized, has the same right to demand the possession of the animal owned by him, and the same right to answer separately, as if the special proceeding was against him separately; and the final order may be in favor of one or more of the persons so answering, with respect to the animal or animals owned by him or them, and for his or their costs; and against the remainder of the persons answering, or to whom the precept was directed, or for the sale of the remainder of the animals, in like manner, as if the former persons had not answered, or had not been named in the precept. But the person, first making a demand of the possession of any animal seized, must pay all the costs to the time of the demand; and a person, subsequently making a demand, is excused from the payment of any costs, except those which have accrued since the former demand.

[New; intended to provide for cases, not included in the last section, where there are several owners. In such cases, the questions discussed in the note to the last section, do not necessarily arise.]

§ 3111. Where proceedings are taken jointly against different persone, who own different animals seized, as prescribed in either of the last two sections, the surplus, remaining in the justice's hands, must be distributed between them, in proportion to the value of the animals owned by each, to be determined by the justice. Any owner may claim separately his proportion of the surplus; and sections 3093 and 3094 of this act apply to a claim made, and to the disposition of the surplus arising, as prescribed in this section.

[New; its object and effect will be apparent, without a detailed TITLE 10. explanation.]



§ 3112. Where two or more persons, or an officer and a private When one person, are authorized, by this title, to bring an action, or to seize etc.. an animal, and take the proceedings prescribed in this title for the any other. disposition thereof, the commencement of an action, or the seizure of the animal, by either of them, supersedes the right of any of the others to bring such an action, or to make such a seizure, with respect to the animal seized, or in question in the action. But the justice may, in his discretion, allow an officer or other person, who is interested in the recovery, or in the application of the proceeds of the sale, to appear in the action or special proceeding, for the purpose of protecting his interest, and to take such part in the proceedings therein, as the justice thinks proper. [New; see the note to the next section.]





§ 3113. Where a seizure is made by a private person, as pre- Rights of scribed in this title, and the possession of an animal seized is aban- when doned by him, without filing a petition; or where an action, brought fails to by a private person, as prescribed in this title, is settled or discontinued by the plaintiff; the officer, to whom a penalty is payable, as prescribed in section 3083 of this act, or in subdivision fourth of section 3092 of this act, may, unless he has assented to the abandonment, settlement, or discontinuance, maintain an action against the owner of the animal in question, to recover the penalty so payable to him; and, upon proof of the facts, which would have entitled the plaintiff in the former action, or the petitioner in the special proceeding, to recover, he is entitled to judgment accordingly.

[This and the last section are new; they have been framed for the purpose of avoiding questions, arising upon conflicting claims of the persons and officers, authorized to pursue the remedies given by the statute. Section 3112 is to the effect, that the pursuit of the remedy, by one of the persons so authorized, bars proceedings in behalf of all others. But, inasmuch as the interests of the private person and of the officer may be in conflict, it authorizes the justice to allow either to intervene, for his own protection, in the action or special proceeding instituted by the other. Section 3113 authorizes the officer to recover the penalty, where a private person, pursuing the remedy, settles with the owner of the animals, before the officer can intervene. It is not necessary to make a corresponding provision



having a special property deemed



may act for his


for a settlement by an officer, to the detriment of a private person; as the latter has no interest in the proceedings taken by the former.]

§ 3114. When a person is, at the time of the seizure, entitled to the possession of an animal, as against the general owner thereof, by virtue of a special property therein, he is deemed, for all the purposes of this title, the owner thereof.

[New in form; but covering, in connection with the next section, several provisions of the former statute, which referred to the person entitled to the possession, as a distinct person from the owner.]

§ 3115. The duly authorized agent of the owner or person entitled to the possession of an animal, as specified in the last section, may, in his own name, answer, make any demand, or take any other proceeding, which the owner or person so entitled may take, as prescribed in this title.

[New. See the note to the last section.]


Provisions specially relating to courts of justices of the peace in the city of Brooklyn.

PRELIMINARY NOTE.- This title consists of a revision of those portions of the following enactments, which relate to the subjects treated in this chapter, to-wit: L. 1849, ch. 125, §§ 35, 36 (p. 176); L. 1850, ch. 102, §§ 15, 17 and 18 (pp. 151, 152): L. 1855, ch. 514 (p. 950); L. 1862, ch. 337 (p. 545); L. 1866, ch. 636 (vol. 2, p. 1373); L. 1868, ch. 689 (vol. 2, p. 1521); L. 1869, ch. 276 (vol.1, p. 603), and ch. 830 (vol. 2, p. 1966); L. 1870, ch. 607 (vol. 2, p. 1422), and ch. 647 (vol. 2, p. 1492); L. 1871, ch. 331 (vol. 1, p. 642), ch. 492 (vol. 1, p. 1034), and ch. 936, § 1 (vol. 2, p. 2151); L. 1873, ch. 780 (p. 1186); and L. 1875, ch. 623 (p. 784).(*)

SEC. 3116. Justice in sixth district must be an attorney.

3117. Justices' jurisdiction in Brooklyn extended.

3118. Justices to receive salaries in lieu of fees; to account and pay over

fees monthly.

3119. Clerk; how appointed; salary; bond.

3120. Duties of clerk.

3121. Interpreter for police court, and for first, second, and third districts. 3122. Id; for fourth and fifth districts.


(a) The first ten sections of this title have been materially modified by L. 1880, ch. 256 passed May 12, 1880, which of course supersedes so much of this act as is inconsistent therewith.

SEC. 3123. Id.; for sixth district.

3124. Common council may appoint additional interpreters.

3125. Common council to designate attendants, etc.


3126. When plaintiff may serve complaint with summons; proceedings

[blocks in formation]


must be an at

§ 3116. A person shall not hold the office of justice of the peace Justice in for the sixth judicial district of the city of Brooklyn, unless he district has been regularly admitted to practice as an attorney and counsellor torney. at law, in the courts of record of the State. [L. 1868, ch. 689, part of § 1.]


Brooklyn extended.

§ 3117. In addition to the jurisdiction conferred generally by Justices' law, upon justices of the peace, each justice of the peace of the Hon in city of Brooklyn has civil jurisdiction, as prescribed in subdivisions first, second, third, fourth, and seventh of section 2862 of this act, where the sum claimed, or the value of a chattel, or of all the chattels claimed, together with the damages claimed, if any, does not exceed two hundred and fifty dollars.

[L. 1871, ch. 492, § 1, amended by the addition of the last sentence. See Gerarty v. Reid, 13 Hun, 313.]


lieu of


and pay


§ 3118. In an action or a special proceeding before a justice of Justices to the peace of the city of Brooklyn, costs must be awarded and collect- salaries in ed, as in a like action or special proceeding before another justice; but to account the justice shall not retain, to his own use, any costs, or any fee, or over fees other reward for his services, except in a special proceeding, instituted as prescribed in title second of chapter seventeenth of this act. Each of those justices must, between the first and the tenth days of each month, render to the comptroller of that city an account, verified by his oath, of all costs, fees, fines, penalties, and other money, collected or received by him, by virtue of his office, during the preceding month; except for damages awarded, or costs actually paid to a party to a civil action, or special proceeding, costs, actually paid

TITLE 11. to another officer, in such an action or special proceeding, and such fees, as the justice is entitled to retain to his own use, as prescribed in this section. The justice must pay to the comptroller, at the time of so rendering his account, the full amount of the money so accounted for. Each of those justices is entitled, in lieu of all fees and perquisites, other than the fees which he is so entitled to retain, to an annual salary, fixed and to be paid as prescribed by law.

how ap



[Those parts of L. 1849, ch. 125, § 32, and first clause of § 36, as amended by L. 1850, ch. 102, §§ 15 and 18, which are applicable to justices of the peace; also parts of L. 1869, ch. 276, § 1 ; L. 1871, ch. 492, §9; and L. 1873, ch. 780, § 1; consolidated, and amended so as to provide, that the justice must make his return, between the first and the tenth of each month, thus fixing a definite time therefor; that the return must be made to the comptroller, instead of to the common council; that the fees, etc., must be paid to that officer, instead of to an "officer designated by the common council;" that the return is exclusive of the sums due to parties and other officers; and that those sums are not to be paid over. Doubtless by the true construction of the former statutes, sums due to parties, etc., were excepted, but the language used literally included them; and it failed to provide for distinguishing them, in any stage, from the sums payable to the city. The general repealing act of 1880, which repeals those provisions, expressly excepts from the repeal all provisions relating to salary and compensation. These were assigned to another division of the Revision of the Statutes, which was not completed, when the commissioners' term of office expired; and they are consequently left to depend upon the former statutes, precisely as if the latter had not been repealed. See the repealing act, L. 1880, ch. 245, § 3, subd. 14.](*)

Clerk: § 3119. Each justice of the peace of the city of Brooklyn has a pointed; clerk, who is nominated by the justice, and appointed by him, subject to confirmation by the common council of that city; and may be removed by the justice at his pleasure. Each clerk is entitled, in lieu of all fees and perquisites, to an annual salary, fixed and to be paid as prescribed by law. Each clerk, before entering upon the duties of his office, must execute to the city of Brooklyn, and file in the city clerk's office, a bond, in the penalty of two thousand dollars, with at least two sureties, approved by a justice of the supreme court, residing in the second judicial district; conditioned for the faithful performance of his duties as clerk, and for the accounting for, and paying over, as directed by law, of all money received by him as clerk. Any paper, which, elsewhere, must or may be filed

(a) Page 159.

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