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TITLE 2. Guardian ad litem


§ 2887. Before a summons is issued in behalf of, or an issue is for infant joined without summons by, an infant plaintiff, the justice must appoint a competent and responsible person, nominated by the plaintiff or his general guardian, to appear as his guardian for the purpose of the action. The written consent of the person so appointed must be filed with the justice, before his appointment. The guardian so appointed is responsible for the costs.

Id.; for infant

[Id., § 40, amended by the substitution of a guardian for a next friend, and the words, "competent and responsible," for "suitable," to correspond to the provisions of this act, which relate to the same subject in the principal courts of record. The original said, that an issue joined by an infant plaintiff, without process, should not be "heard," till a next friend was appointed. If that meant that the infant might join issue without a next friend or guardian, the statute ought to have been changed before. No such construction is possible under this section. The words, "or his general guardian," have also been inserted, to provide for the case where the plaintiff is not present, or is too young to name a guardian; and a clause has been added, expressly requiring the guardian's written consent to be filed before the appointment, in accordance with the supposed meaning of the original.]

§ 2888. After the service and return of a summons against an defendant. infant defendant, no other proceeding shall be taken in the action, until a person has been appointed to appear as his guardian for the purpose of the action. Upon the nomination of the defendant, the justice must appoint a proper person for that purpose. If the defendant does not appear upon the return of the summons, or if he neglects or refuses to nominate, the justice may, on the application of the plaintiff, appoint any proper person as his guardian. The written consent of the person, so appointed, must be filed with the justice before his appointment. The guardian so appointed is not responsible for any costs.

When constable

etc., may

[Id., §§ 42 and 43, consolidated, and amended by expressly requiring the consent to be filed before appointment made.]

§ 2889. Subject to the provisions of sections 63 and 64 of this Hot act as act, any person, other than the constable who served the summons or the venire, or the law partner or clerk of the justice, may be the attorney for a party to an action before a justice of the peace.(")


[Id., § 44, as amended by L. 1864, ch. 421 (6 Edm., 295); further amended by adding the first clause, which refers to the prohibition


against any but an almitted attorney practicing in New-York or Kings county, and by omitting the provision allowing the partner or clerk of the justice, or the constable who served the summons or venire, to act as attorney in any proceeding in the action, except as an advocate upon the trial. The latter amendment is in accordance with the principle of L. 1847, ch. 470, $$ 52 and 53 (3 R. S., 5th ed., 466; 4 Edm., 590). It was held in Fox v. Jackson, 8 Barb., 355, that section 52 did not apply to justices' courts; but the evil, which that provision was intended to remedy, was quite as great in those courts, as in courts of record, and it was thought that too great care could not be taken to purge them from even the appearance of evil. The reasons which suggested the amendment to the R. S, made by L. 1864, ch. 421, are equally applicable to this amendment of the act of 1864; since the obtaining of an adjournment by a defendant is often as beneficial to him, as the obtaining of a nonsuit.]

ART. 2.


ney; how

§ 2890. The attorney's authority may be conferred orally or in of attor writing; but the justice shall not suffer a person to appear as an proved. attorney, unless his authority is admitted by the adverse party, or proved by the affidavit or oral testimony of himself or another.

[Id., § 45. The original section did not permit a justice to render judgment against a defendant upon whom the summons was not served, upon the appearance of a person as his attorney, unless the attorney's authority was proved, although the plaintiff did not require proof. Sperry v. Reynolds, 65 N. Y., 179. The ruling is equally applicable to this section. ]

prove his case.

§ 2891. If a defendant fails to appear and answer, the plaintiff Plaintiff to cannot recover without proving his case.

[Co. Proc., § 64, subd. 8.]

Defendant may offer to com



§ 2892. Except in an action to recover a chattel, the defendant may, upon the return of the summons and before answering, file promise; with the justice a written offer to allow judgment to be taken against ings therehim for a sum therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more of the defendants, against whom a separate judgment may be taken. If the plaintiff thereupon, before taking any other proceeding in the action, files with the justice a written acceptance of the offer, the justice must render judgment accordingly. If an acceptance is not filed, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, and must pay the defendant's costs from that time.


Justice to wait one


[Co. Proc., § 64, part of subd. 15, amended by adding the exception; by requiring the offer to be filed when made; by adding the second sentence; by not allowing the offer to be given in evidence; by substituting the words, "a more favorable judgment," for the clause, "judgment for a greater amount, exclusive of costs, than has been specified in the offer"; by inserting "from the time of the offer"; and by substituting the last three words for "accruing subsequent to the offer". All these changes have been made so as to remove some obscurities, and conform the section to the language of the provisions of this act relating to the same subject in the principal courts of record.]

§ 2893. Upon the return of a summons duly served, the justice must wait one hour, after the time specified therein for its return, unless the parties sooner appear.

[2 R. S., 233, Part 3, ch. 2, tit. 4, § 46 (3 R. S., 5th ed., 433; 2 Edm., 249), amended by substituting "duly " for "personally." See §§ 2910, 2912 and 2934, post.]



PRELIMINARY NOTE.-The following article effects substantial changes, with respect to the arrest of a defendant, in an action brought in a justice's court. They were imperatively demanded by the former anomalous condition of the statutes; and by the very great alteration, which has taken place in public sentiment, since the enactment of the Revised Statutes, with regard to the causes for which a defendant in a civil action should be arrested, either before or after judgment. The theory upon which the provisions of the R. S., and of the non-imprisonment act, seemed to have been based, was that the issuing of a warrant should depend, not so much upon the character of the act, with which the defendant is charged, as upon the fact of the non-residence of a party, who might suffer inconvenience, if the trial of the action should be delayed, until the lapse of the usual time between the service and the return of an ordinary summons. Indeed, the effect of the former statutes, was, not to confer upon the plaintiff the privilege of obtaining a warrant, which he might waive, if he was satisfied with the pecuniary responsibility of the defendant; but to require him to prosecute a non-resident defendant, in an action for tort, by warrant. Of course, such a theory is irreconcilable with the principles, upon which all the provisions of this act, relating to arrests in civil actions, have been framed; and, indeed, with any theory which obtains at the present day in the State. In determining what alterations it was expedient to propose in the former statutes on this subject, the first question to be considered related to the character of the act charged upon the de

fendant, which should authorize his arrest. By the former statute he might have been arrested in any action, not "arising upon contract express or implied "; and also in an action sounding in contract (under the common law forms of pleading), where it was brought to recover money collected by a public officer, or for official misconduct or neglect. of duty, or for damages for misconduct or neglect in any professional employment. L. 1831, ch. 300, §§ 30, 31 (3 R. S., 5th ed., 462; 4 Edm., 472). Those actions comprise, in substance, all those specified in the provisions of this act regulating arrests dependent upon the cause of action (§ 549), of which a justice of the peace has jurisdiction; and the commissioners were clearly of the opinion that the rule should be the same with respect to this question, as in a court of record; especially since a plaintiff, whose demand amounts to any sum between $50 and $200, has now with respect to most of the causes of action enumerated, an absolute election in which court to suc. Consequently no substantial changes were made in the enumeration of the causes of action which authorize the granting of an order of arrest.

The next question was, whether the right to arrest, pending such an action, should be absolute; or whether the plaintiff should be required to show that special circumstances exist, which render it necessary to arrest the defendant before judgment. In a court of record, an order of arrest may be obtained at any time before judgment, whenever an execution against the person can issue upon the judgment; and, at first sight, it would seem as if the same rule ought to obtain in justices' courts. But we thought, after much reflection, that sound policy required a more limited rule for the latter tribunals. In courts of record, actions are not commonly brought without some deliberation, as the plaintiff becomes responsible for a considerable amount of costs; the damages claimed are considerable; there is the intervention of an attorney, who would ordinarily discourage an unnecessary or malicious arrest; and the order is granted by an impartial and experienced judge, who, in a trifling or doubtful case, may fix the bail at so small a sum as to render the arrest practically idle. But in justicos' courts, actions are oftener brought hastily, in the heat of passion, and for the mere purpose of annoyance; the plaintiff incurs but little responsibility for costs; the damages claimed are often trifling; and, generally, there is no intervention of an attorney. For these reasons, and also because the granting of an order affects the time when the summons is returnable, the commissioners were of opinion, that the right to arrest the defendant should be substantially restricted to the same cases, where a warrant could be issued, under the former statute; that is, where, in consequence of non-residence, or some other fact shown, there appears to be a special necessity for it. It would be intolerable, if, for every trifling and, perhaps, involuntary trespass, by cattle or otherwise, a defendant was liable

ART. 3.


Order of

what cases

it may be granted.

to be arrested, at the instance of an irritable or malicious neighbor; dragged before a justice; and compelled at once to try the cause or to give bail for his subsequent appearance.

In this article, the order of arrest has been made a strictly provisional remedy; and a summons has been substituted for a warrant, as the process for the commencement of the action. This leaves it optional with the plaintiff to obtain an arrest, in cases where he is entitled to it, and enables his right to this process to be determined, independently of the decision upon the merits of the action. As the time between the issuing and the return of an ordinary summons is short, no provision has been made for the obtaining of an order, except simultaneously with the summons; and provision has been made in §2901 for an application to vacate the order, either upon the defendant's being brought before the justice, or at any subsequent time. before judgment. The giving of bail by the defendant is provided for in 2963, post.

SEC. 2894. Order of arrest; in what cases it may be granted.

2895. Id.; in what actions.

2896. Id.; upon what papers.

2897. Id.; its contents.

2898. Duty of constable.

2899. Return. When plaintiff notified must appear.

2900. Constable to keep defendant in custody.

2901. Motion to discharge from arrest.

2902. Effect of discharging defendant.

2903. When plaintiff must prove extrinsic facts.

2904. Privilege from arrest.

§ 2894. At the time when the summons is issued, in an action arrest in specified in the next section, the justice who issues the summons must, upon the application of the plaintiff, and upon compliance by him with the provisions of this article, grant an order for the arrest of the defendant, in either of the following cases:

1. Where the defendant to be arrested is not a resident of the


2. Where the plaintiff is not a resident of the county; or, if there are two or more plaintiffs, where all are non-residents thereof.

3. Where it appears to the satisfaction of the justice, by the affidavit of the plaintiff or another person, that the defendant is about to depart from the county, with intent not to return thereto.

But such an order cannot be granted, where the defendant, against whom it is applied for, is a female.

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