TITLE 12. the sheriff must execute the mandate; and he is subject to all the liabilities attaching to a constable in executing it. Sections 104, 105, and 106 of this act apply to a mandate delivered to a sheriff, as prescribed in this section.(*) [The provisions of L. 1845, ch. 69 (2 Edm., 459, § 80, etc.), authorize the sheriff "or other public officer authorized to execute any process," etc., to raise the power of the county to assist him in overcoming resistance to process. In revising these provisions for chapter 2 of this act, it was thought prudent to restrict the application thereof to sheriffs. (See §§ 104, 105, and 106, and note to § 104.) Some provision was therefore needed, for the relief of constables charged with the execution of process, to which resistance is offered; and this section has been prepared to meet such a case, by authorizing the constable to transfer the mandate to the sheriff, who, by virtue of the sections above referred to, may, if necessary, call for assistance in executing it.] 136 (a) Sections 104-106 are on p. 167. ART. 1. CHAPTER XX. PROVISIONS RELATING TO CERTAIN COURTS IN TITLE IV. The district courts of the city of New-York, and the justices' courts of the cities of Albany and Troy. ARTICLE 1. Provisions generally applicable to all the courts specified in this title. 2. Provisions exclusively applicable to the district courts of the city of New-York. 3. Provisions exclusively applicable to the justices' courts of Albany and Troy. ARTICLE FIRST. PROVISIONS GENERALLY APPLICABLE TO ALL THE COURTS SPECIFIED IN THIS TITLE. SEC. 3207. Service of complaint with summons; proceedings thereupon. 3208. Id.; and proof of service. 3209. Action to be commenced by service of summons. 3210. Order of arrest; warrant of attachment; requisition to replevy. 3212. Proceedings where title to real property is in question. 3213. Appeals. 3214. Effect of this act, upon jurisdiction and proceedings. complaint mons; § 3207. Section 3126 of this act applies to an action to recover Service of upon or for breach of a contract, express or implied, brought in a with sumdistrict court of the city of New-York, in the justices' court of the Proctore city of Albany, or in the justices' court of the city of Troy. [Section 3126, ante, was taken from L. 1871, ch. 492, which applies to an action before a justice of the peace in Brooklyn. A similar provision was made, with respect to the district courts of the city of New-York, in L. 1857, ch. 344, § 15; and, with respect to the justices' court of Albany, in L. 1873, ch. 182, §§ 1 and 2. This section extends the provision to the justices' court of Troy, and makes the rule uniform, with respect to the courts in the four cities.] ings thereupon. TITLE 4. Id.; and proof of service. Action to be com § 3208. In an action brought in either of those courts, the summons, and, in a proper case, a copy of the complaint, may be served by any person not a party to the action; except that, where the action is brought in a district court of the city of New-York, a person, other than a constable or a marshal, serving the same, must be first empowered to do so, either by the justice, or by the attorney to the corporation, as now prescribed by law. Proof of service thereof, by such a person, must be made by his affidavit; which must state the particular place, time, and manner of service, and that the affiant knew the person so served, to be the person mentioned and described in the summons, as defendant therein. [New, in its application to the justices' court of Troy; taken from L. 1873, ch. 182, §§ 1 and 3, relating to the justices' court of Albany; and L. 1857, ch. 344, § 15,'and L. 1862, ch. 484, § 14, as amended by L. 1864, ch. 569, § 2, and modified by L. 1866, ch. 758, relating to the district courts of the city of New-York. Section 14 of the act of 1862 was further amended by L. 1879, ch. 102. The act of 1866 was repealed by the general repealing act of 1880, L. 1880, ch. 245, § 1, subd. 42; but the before cited sections of the acts of 1862 and 1864, and the act of 1879, were not repealed thereby. They are, however, repealed by implication by this section, as far as they apply to the service of a summons and a copy of the complaint in an action brought in a district court; but the amendment of 1879 remains in force, as respects special proceedings, as stated in the note to § 2239.](*) § 3209. An action, brought in either of those courts, at any time menced by after this chapter takes effect, must be commenced by the voluntary appearance of, and joinder of issue by, the parties, or by the service of a summons. service of summons. Order of arrest.; [New. See § 2876, ante, and the note thereto, and the note to § 3211, post.] § 3210. Articles third, fourth, and fifth of title second of chapter warrant of nineteenth of this act apply to an action brought in either of those attach ment; re quisition courts, except as otherwise prescribed in the next section. to replevy. The last section [New. See the note to the next section.] § 3211. The provisions of the last section are subject to the folqualified. lowing qualifications: 1. Nothing contained in either of the articles, so made applicable, applies to an order of arrest, in an action brought in a district court of the city of New-York, or affects any provision of this title, re 138 (a) Section 2239 is on page 331; the general repealing act of 1880, wlil be found at the lating to the jurisdiction of either of the courts specified in this title. 2. An order of arrest, in an action brought in the justices' court of Albany, or the justices' court of Troy, or a warrant of attachment, or a requisition to replevy, in either of those courts, or in a district court of the city of New-York, must be granted by, and directed to, and executed by, the officer empowered, by the statutes remaining in force after this chapter takes effect, to grant or execute, as the case requires, in the same court, a warrant to arrest, a warrant of attachment, or a requisition in an action to recover a chattel. 3. The manner of applying for, granting, and executing an order of arrest, a warrant of attachment, or a requisition to replevy, and the proceedings thereupon, and with respect thereto, as prescribed in the articles so made applicable, are subject to the statutes, remaining unrepealed after this chapter takes effect, specially applicable to those courts, or to either or any of them, prescribing the duties of the justices, or of the clerks thereof, or regulating the mode of transacting business in an action brought therein. [The general object of this and the last two sections is to abolish a warrant of arrest, and an attachment, as process for the commencement of an action; to substitute the appropriate provisional remedies therefor, as provided in chapter 19, with respect to justices' courts ; and generally to subject the proceedings in such cases, and where property is replevied, to the careful revision of the statutes, relating to similar proceedings in justices' courts, contained in chapter 19, as closely as it is practicable so to do, in view of the peculiar organization, etc., of the courts to which this title is devoted. Subd. I of this section excepts, from the operation of the provisions referred to in § 3210, the existing provisions of law, concerning a warrant to arrest a defendant, in an action brought in a district court of NewYork city. This exception was necessary, in order to prevent substantial changes in the law; because the cases where a warrant may issue, and the proceedings under the warrant, are not the same in a New-York district court, as in a justice's court. This subject is provided for in the next article, which relates exclusively to the district See §§ 3217 and 3218, post.] courts. ART. 1. ings title to real prop erty is in § 3212. Sections 2951 to 2958 of this act, both inclusive, apply Proceedto an action, brought in either of those courts; except that, where where the action is brought in a district court of the city of New-York, the surety upon the defendant's undertaking is liable, in the case specified in section 2952, to any amount, for which judgment might have question. TITLE 4. Appeals. Effect of this act, upon jurisdiction and proceed ings. been rendered by the district court, if the answer and undertaking had not been delivered. (^) [The first clause of this section refers to the proceedings, where title to real property comes in question. The remainder of the section. has been added, because the jurisdiction of the district courts extends to a larger sum than that of a justice of the peace.] § 3213. An appeal from a judgment, rendered in a district court of the city of New-York, may be taken, in the cases, and in the manner, prescribed in articles first and second of title eighth of chapter nineteenth of this act, with respect to an appeal to a county court, from a judgment rendered by a justice of the peace; and not otherwise. Such an appeal must be taken to the court of common pleas for that city and county. An appeal from the judgment rendered in the justices' court of the city of Albany, or the justices' court of the city of Troy, may be taken, in a case where an appeal may be taken to a county court, from a judgment rendered by a justice of the peace, as prescribed in title eighth of that chapter; and in no other case. Such an appeal must be taken to the county court of the county, wherein the court is located. [This section applies, to appeals from these courts, the provisions of chapter 19, ante, relating to appeals from justices' courts, in which several amendments have been made to the pre-existing statutes. It supersedes L. 1857, ch. 344, § 76. Held in Zinsser v. Seiler, 7 Daly, 464, settling a question which had formerly been in doubt, that where a notice of appeal from a New-York district court had been seasonably served upon the justice, but not upon the party, the common pleas could, under § 273 of the old Code, allow the appeal to be perfected by serving notice on the party, after the time to appeal had expired. But see § 3049, ante.] § 3214. Except as otherwise specially prescribed in this title, this act does not affect any statutory provision, remaining unrepealed after this chapter takes effect, relating to the jurisdiction and powers of either of those courts; the appointment, qualification, tenure of office, powers, or duties of the justices, or of the clerk, or any other officer thereof; or the proceedings therein; except that a provision of this or any other statute, whereby a proceeding in an action, brought in either of those courts, or a special proceeding, brought therein, or before a justice thereof, is assimilated, either expressly, or by reference to another provision of law, to a proceeding, in an action or a special proceeding before a justice of the peace, 140 |