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TITLE 1. Confession of judgment.

Actions by

and against officers, etc.; and by executors, etc.

Tavern keepers


§ 2864. A justice of the peace has also jurisdiction to render judgment, upon the confession of a defendant, as prescribed in title sixth of this chapter, where the sum confessed does not exceed five hundred dollars.

[Co. Proc., § 53, subd. 8.]

$2865. An action, cognizable by a justice of the peace, may be brought by or against a corporation; by or against a natural person in his own right; by or against a town or county officer in his official character; or by an executor or administrator.

[2 R. S., 226, Part 3, ch. 2, tit. 4, § 5 (3 R. S., 5th ed., 327; 2 Edm., 241), amended so as to expressly allow an action to be brought against, as well as by a corporation, in accordance with L. 1847, ch. 470, § 45 (4 Edm., 589). This section is probably unnecessary in view of the fact that § 2863, ante, defines the cases in which a justice shall have no jurisdiction, and § 446, 449, 450, 454, 455, 468 and 749, are made applicable to justices' courts by § 3347, subd. 3 and 6. Under these provisions, all persons interested, may be made plaintiffs; the action must be brought by the real party in interest, except that trustees, etc., may sue without joining the person interested; a married woman may appear, prosecute, or defend, as if she was single; persons severally liable for the same demand may be sued together or separately; the defendants thus sued may apply for any relief they would have been entitled to, had they been sued separately; infants may bring actions; and actions upon securities given to or taken by persons, officers, guardians, committees, or other trustees, may be maintained by such persons in their official or representative capacity. Actions against joint debtors are allowed by § 3020, post. ](*)

§ 2866. A justice of the peace, who is an innholder or tavern disquall keeper in fact, has no power or jurisdiction under any provision of this chapter; but if a judgment has been actually rendered by him, oefore he became so disqualified, he may give a transcript thereof, or issue execution thereupon, or satisfy the judgment upon payment thereof.


[L. 1846, ch. 140 (3 R. S., 5th ed., 427; 4 Edm., 548), amended by inserting the provisions allowing the justice to give a transcript and to satisfy the judgment upon payment thereof. It was held in Rice v. Milks, 7 Barb., 337, that a justice, who is a tavern keeper, was not disqualified, either under the act of 1846, or under the section of the Revised Statutes which it superseded, from entertaining a special proceeding; but this section is broader, and forbids such a justice from entertaining any proceeding regulated in this chapter.]

§ 2667. A justice of the peace, who is a member of the senate lature not or assembly, is not obliged to take cognizance of a civil action or

of legis


to act.


(a) The sections referred to in this note, not belonging to this chapter, will be found on

special proceeding; but he may take cognizance thereof, in his discretion.


[Section 7 of the R. S., amended by inserting the words, " or special proceeding;" and by omitting the words, "or being a judge of any county court."]


to hold


§ 2868. A justice of the peace must hold, within his town or Justices city, a court for the trial of any action or special proceeding, of which courts: he has jurisdiction, brought before him. He must hear, try, and de- powers. termine the same, according to law and equity; and for that purpose, where special provision is not otherwise made by law, the court is vested with all the necessary powers possessed by the supreme


[Id., § 1, amended by omitting, after "justice of the peace," "elected in any town of this State, or appointed for any city in which special courts are not established by law," and by substituting the words, "or special proceeding, of which he has jurisdiction," for "in the next section enumerated." The omitted phrase is both incorrect and unnecessary. The other amendment needs no explanation.]

town, etc

§ 2869. An action must be brought before a justice of a town In what or city wherein one of the parties resides, or a justice of an adjoining action town or city in the same county, except in one of the following


1. Where the defendant has absconded from his residence, it may be brought before a justice of the town or city in which the defendant, or a portion of his property, is at the time of the commencement of the action.

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, it may be brought before a justice of the town or city, in which the plaintiff, or either of the plaintiffs, or his attorney, is at the time of the commencement of the action.

3. Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city, in which he is at the time of the commencement of the action.

4. Where it is specially prescribed by law, that a particular action may be brought before a justice of the town, city, county, or district, where an offence was committed, or where property is found.

must be



Criminal contempts.

ld.; how punished.

A defendant designated in section 2879, section 2880, or section 2881 of this act, is deemed, for the purposes of this section, a resident of the town or city where the person, to whom a copy of the summons is delivered, resides.

[Id., §§ 8 and 9, consolidated and amended, in accordance with the construction given to § 9, in Hunter v. Burtis, 10 Wend., 358, and Onderdonk v. Ranlett, 3 Hill, 323; also by inserting in subd. 2, the words, "or his attorney;" and by adding subd. 4. See L. 1873, ch. 43, in appendix, § 2861, subd. 3, § 2862, and § 2919, post.]

§ 2870. A justice of the peace has power to punish, for a criminal contempt, a person guilty of either of the following acts:

1. Disorderly, contemptuous, or insolent behavior towards him, while engaged in the trial of an action, the rendering of a judgment, or any other judicial proceeding; where such behavior directly tends to interrupt the proceedings, or to impair the respect due to his authority.

2. Breach of the peace, noise, or other disturbance, directly tending to interrupt his official proceedings.

3. Resistance wilfully offered, in his presence, to the execution of his lawful mandate.

He has not power to punish, for a criminal contempt, in any other


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[2 R. S., 273, Part 3, ch. 2, tit. 4, § 274 (3 R. S., 5th ed., 460; 2 Edm., 281), amended by inserting in subd. 1 and 2 the word, "directly,' so as to make the section conform to the similar provision, relating to courts of record, in § 8. The word, "mandate," is defined in § 3343, subd. 2. The rulings in Rutherford v. Holmes, 66 N. Y., 368, cited also in the note to § 3001, post, are applicable to this section, as well as to the section of the R. S.]

§ 2871. Punishment for a contempt, specified in the last section, may be by fine not exceeding twenty-five dollars, or by imprisonment in the county jail not exceeding five days, or both, in the discretion of the justice. Where a person is committed to prison for the non-payment of such a fine, he must be discharged at the expiration of ten days; but where he is also committed for a definite time, the ten days must be computed from the expiration of the definite time.

[Id., § 275, amended by adding the last clause.]


§ 2872. A person shall not be punished by a justice of the peace offender for a contempt, until an opportunity has been given him to be heard heard. in his defence. And, for that purpose, the justice must issue a warrant, directed, generally, to any constable of the county, requiring the constable to bring the offender before him.

[Id., § 276, amended by the insertion of the words, "directed, generally, to any constable of the county."]


§ 2873. A justice, who convicts a person of a contempt, must, Record of within ten days after the conviction, make up, subscribe, and file in tion. the county clerk's office, a record thereof, stating therein the particular circumstances of the offence, and the punishment awarded by him upon the conviction.

[Id., § 277, amended by condensing its language, but with no material change, except the substitution of the words, "the conviction," for its date," and the clause, "punishment awarded by him upon the conviction ", for "judgment rendered thereon."]

§ 2874. A warrant of commitment for a contempt must set forth Requisites the particular circumstances of the offence; otherwise it is void.

[Id., § 278.]

of commitment.

paid to

or superintendent

of the


§ 2875. An officer, who collects or receives a fine, imposed by a Fine to be justice of the peace for a contempt, must, within ten days there- overseer after, pay the money, for the benefit of the poor, to the overseer or superintendent of the poor of the town, city, or district, wherein the fine was imposed; or, where there is no such officer, to the officer or officers performing corresponding functions under another name; unless the board of supervisors has directed the payment of fines and penalties to the supervisor of the town, in a case where it is authorized by law so to do.

[New. There are several local statutes for the support of the poor, whereby certain officers, whose official titles and territorial jurisdiction vary considerably in different localities, are charged with the duties which elsewhere devolve upon the overseer or superintendent of the poor. This section is so framed as to provide for the payment of fines to such local officers, where they have been created.]





Commencement of action; appearance of parties; provisional


ARTICLE 1. Commencement of action.

2. Appearance of parties.

3. Order of arrest.

4. Attachment of property.

5. Replevin,




how com


SEC. 2876. Action; how commenced

2877. Contents of summons.

2878. Service of summons.

2879. Id.; upon a corporation.

2880. Id.; special provision relating to railroad corporations.

2881. Id.; relating to express companies.

2882. Last two sections qualified.

2883. Second and third summons; effect thereof.

2881. Where name of defendant is unknown.

2885. Return of summons.

$2876. An action is commenced before a justice of the peace, either by the voluntary appearance and joinder of issue by the parties, or by the service of a summons.

[2 R. S., 227, Part 3, ch. 2, tit. 4, § 11 (3 R. S., 5th ed., 428; 2 Edm., 243), amended by substituting" commenced " for "instituted;" "joinder of issue by " for "agreement of," and "the service of a summons" for "process;" and by omitting at the end, "when by process, it shall be either a summons, a warrant, or an attachment." Under the statutes superseded by this chapter, there were no less than six different kinds of process for the commencement of an action in a justice's court, to wit: long summons, short summons, long attachment, short attachment, warrant, and summons in an action to recover the posses. sion of personal property. This diversity has been a fruitful source of confusion and litigation; to remove which this section prescribes a summons as the only process by which an action can be commenced, leaving the replevin of the property claimed, the arrest of the defendant, or the attachment of his property, to be obtained by a separate proceeding, as in courts of record. The other amendments supersede sections 12 and 13 of the R. S.; the only substantial change being, that the action is to be deemed commenced at the time of the service

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