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Judgment when ac

ceed $400.

2. Render a judgment of discontinuance with costs; in which case, the defendant may thereafter maintain an action for the whole. Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel.

[Id., §§ 52 and 53, and § 58, subd. 3, consolidated, and amended by dropping superfluous expressions and provisions; by increasing the sum from one hundred to two hundred dollars; and by providing for the cases where the excess is not due, in whole or in part.]

§ 2950. Where, upon the trial of an action, the sum total of counts the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars, judgment of discontinuance must be rendered against the plaintiff, with costs.


[Id., § 54, amended by the substitution of the words "the sum total of the accounts of both parties, proved to the satisfaction of the justice," for "it shall appear that the amount of the plaintiff's claim, together with the demands set off by the defendant, according to the preceding provisions "; so as to correspond to § 2863, ante. Section 54, subd. 4, of the Code of Procedure, and § 54 of the R. S., were doubtless intended to refer to the same case; but the difference in their phraseology left room for a question as to whether the latter might not include some cases not covered by the former. It was thought very desirable to do away with this discrepancy; especially as the definition of a counterclaim under the Code of Procedure was much wider than that of a set-off under the R. S. The commissioners hesitated whether it was expedient, in this section and in § 2863, ante, to retain the expression, "to the satisfaction of the justice." It has been held, that his decision, upon the questions of fact involved in the accounts, is as conclusive as upon any other question of fact. Parker v. Eaton, 25 Barb., 122; Glackin v. Zeller, 52 id., 147. Under this ruling, he must necessarily pass upon the accounts; and it seems inconsistent to require him so to do, when the very object of the statute was to withdraw them from him. But equally embarrassing questions would arise, if this phrase had been omitted; and it was therefore concluded to propose no material alteration in these sections.]

Answer of § 2951. The defendant may, either with or without other matter of defence, set forth in his answer facts, showing that the title to real property will come in question. Such an answer must be in writing; and it must be signed by the defendant, or his attorney or agent, and delivered to the justice. The justice must, thereupon, countersign the answer, and deliver it to the plaintiff.

[Co. Proc., § 55.]



§ 2952. In the case specified in the last section, the defendant TITLE 3. must also deliver to the justice, with the answer, a written under- ing theretaking, executed by one or more sureties, approved by the justice; to the effect that, if the plaintiff, within twenty days thereafter, deposits with the justice a summons and complaint in a new action, for the same cause, to be brought in the proper court, as prescribed in the next section, the defendant will, within twenty days after the deposit, give a written admission of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking must further provide, that he will, at all times, render himself amenable to any mandate, which may be issued to enforce a final judgment in the action so to be brought. If the defendant fails to comply with the undertaking, the sureties are liable thereupon, to an amount not exceeding two hundred dollars.

[See the note to the next section.]

§ 2953. The court in which a new action is to be brought, as prescribed in the last section, is the supreme court, or the county court of the justice's county, at the plaintiff's election; except that, where the justice is a justice of the peace of the city of Buffalo, it is the superior court of Buffalo.

[This and the last section are substitutes for Co. Proc., § 56. The section in the former Code, as originally passed, required the new action to be brought in the supreme court, because the county court had no jurisdiction of such an action; but in 1851 the legislature substituted, in the same section, the words "county court," for "supreme court," because, by an amendment to § 30 of the Code of Procedure, jurisdiction of such an action had been conferred upon the county court. Afterwards, in 1858, in consequence of the decision in Kundolf v. Thalheimer, 12 N. Y. (2 Kern.), 593, the section was restored to its original form. By the sixth article of the constitution, adopted in 1869, jurisdiction of such an action was definitively conferred upon the county court; and there is now no good reason why the plaintiff should lose his choice of a forum, because he has attempted to bring his action in a justice's court. In § 2952, ante, the words, to the process of the court during the pendency of the action," have been omitted. after "amenable." The final clause, relating to proceedings in Buffalo, accords with § 294, ante.]()

In what court new action to



tion before

be discon

§ 2954. Upon the delivery of the undertaking to the justice, the When acaction before him is discontinued, and each party must pay his own justice to costs. The costs so paid by either party must be allowed to him, if tinued. he recovers costs in the new action, to be brought as prescribed in 47


Effect of

failure to


the last two sections. If the plaintiff fails to deposit with the justice a summons and complaint in the new action, before the expiration of twenty days after the delivery of the undertaking, the de fendant may maintain an action against the plaintiff to recover his costs before the justice.

[Co. Proc., § 57, amended by substituting the first part of the third sentence, for "If no such action be brought within thirty days," so as to correspond to the last section but one. Section 56 of the Code of Procedure was amended in 1858, by substituting twenty in place of thirty days, as the time within which the plaintiff must deposit his summons and complaint with the justice; but § 57 remained unaltered, doubtless through inadvertence, so that this section follows § 56.]

§ 2955. If the undertaking is not delivered to the justice, he has undertak- jurisdiction of the action, and must proceed therein; and the defendant is precluded, in his defence, from drawing the title in question. [Co. Proc., § 58.]



title comes

§ 2956. If, however, it appears, upon the trial, from the plaintIn question iff's own showing, that the title to real property is in question, and

on plain

tiff's own showing.


in new action. Un


when ap


the title is disputed by the defendant, the justice must dismiss the complaint, with costs, and render judgment against the plaintiff accordingly.

[Co. Proc., § 59. See 4 Hun, 184; 8 id., 569; 9 id., 520.]

§ 2957. In the new action, to be brought after an action before justice is discontinued, by the delivery of an answer and an underjustice, taking, as prescribed in the last six sections of this act, the plaintiff must complain for the same cause of action only, upon which he relied before the justice; and the defendant's answer must set up the same defence only, which he made before the justice. If the action is to recover a chattel, which was replevied in the justice's court, each undertaking, given in the justice's court, continues to be valid in, and is applicable to, the new action.

Answer of title as to

[Co. Proc., § 60, amended by omitting the reference to the court in which the new action is to be brought, which is covered by § 2953, ante; and by adding the last sentence.]

§ 2958. Where, in an action before a justice, the plaintiff has eral causes two or more causes of action, and the defence, that the title to real

one of sev

of action.

property will come in question, is interposed as to one or more, but not as to all of them; the defendant may deliver an answer and undertaking as prescribed in sections 2951 and 2952 of this act, with respect to the cause or causes of action only, in which title will so come in question. Whereupon the justice must discontinue the action as to those causes of action only; the plaintiff may commence a new action therefor in the proper court; and the original action must proceed as to the other causes.

[Co. Proc., § 62, first half.]

ART. 1.


Proceedings between the joinder of issue and the trial.

ARTICLE 1. Adjournments.

2. Compelling the attendance of a witness.

3. Commission to take testimony.



SEC. 2959. Adjournment by justice.

2960. Adjournment on application of plaintiff.

2961. Adjournment on application of defendant.

2962. Id. undertaking thereupon.

2963. Undertaking to procure discharge of defendant from custody. 2964. When defendant to be discharged.

2965. Subsequent adjournments.

2966. Justice may impose conditions upon adjournment.

2967. Adjournment when warrant to attach absent witness is issued. 2968. Adjournment not to exceed ninety days.

ment by

§ 2959. At the time of the return of a summons, or of the join- Adjournder of issue without process, but at no other time, the justice may, in justice. his discretion, and upon his own motion, adjourn the trial of the action not more than eight days, unless the defendant has been arrested; in which case, no such adjournment shall be made.

[2 R. S., 238, Part 3, ch. 2, tit. 4, §§ 67 and 68 (3 R. S., 5th ed., 436; 2 Edm., 254), consolidated, and amended, as required by the substitution of an order of arrest for a warrant, as the process for arresting the defendant.]

TITLE 4. Adjourn

ment on

application of plaintiff.


ment on


§ 2960. At the time of the return of a summons, or of the joinder of issue without process, the justice must, upon the application of the plaintiff, adjourn the trial of the action, not more than eight days, to a time fixed by the justice. But such an adjournment shall not be granted unless the plaintiff or his attorney, if required by the defendant, makes oath that the plaintiff cannot, for want of some material testimony or witness, specified by him, safely proceed to trial.

[Id., § 69, and subd. 3 of § 70, consolidated, and amended by requir ing the witness to be specified; and so that the length of adjournment shall be the same, where the defendant has been arrested, as in other cases. Section 73 of the R. S. has therefore been omitted. It was held in Pope v. Hart, 35 Barb., 630, that the plaintiff, in an action against a non-resident defendant, commenced by warrant, might, in a proper case, have an adjournment, although there is no express statutory provision to that effect.]

§ 2961. At the time of the joinder of issue, the justice must, of defend upon the application of the defendant, adjourn the trial of the action, upon his complying with the following requirements:


1. The defendant or his attorney must, if required by the plaintiff, or by the justice, make oath that he verily believes that the defendant has a good defence to the action, and that he cannot safely proceed to trial, for want of some material testimony or witness, specified by him.

2. If required by the plaintiff, and the defendant has not been arrested in the action, an undertaking must be given to the plaintiff in behalf of the defendant, as prescribed in the next section. But such an undertaking need not be given, where the action is to recover a chattel.

Such an adjournment must be for such a reasonable time, fixed by the justice, as will enable the defendant to procure the testimony or


[Section 74, and part of subd. 2 of § 70 of the R. S., amended so as to be made applicable to all actions; also by adding the second sentence of subd. 2; and so as to make the kind of undertaking to be given depend upon the fact, whether the defendant has been arrested, and not upon his liability to be taken in execution. If the plaintiff wishes to secure the defendant's body to answer the execution, he should procure an order of arrest. That part of § 70, subd. 2, which is not contained in the foregoing section, is revised in § 2966, post; and the

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