PORTIONS

OF THE

CODE OF PROCEDURE,

NOT EXPRESSLY REPEALED IN 1877.*

[As amended to July 1, 1877.]

[PASSED APRIL 12, 1848.]

General definitions and divisions.

SECTION 1. Remedies in the courts of justice are divided into,

1. Actions.

2. Special proceedings.

Remedies.

§ 2. An action is an ordinary proceeding in a court of justice by Actions. which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.

§3. Every other remedy is a special proceeding.

§ 4. Actions are of two kinds :

1. Civil.

2. Criminal.

Special proceedings. Division of actions.

§ 5. A criminal action is prosecuted by the people of the State, as a Criminal party, against a person charged with a public offense, for the punish- action. ment thereof.

§ 6. Every other is a civil action.

Civil action.

§ 7. Where the violation of a right admits of both a civil and crimi- Remedies nal remedy, the right to prosecute the one is not merged in the other. not merg§ 8. This act is divided into two parts:

The first relates to the courts of justice and their jurisdiction.

The second relates to civil actions commenced in the courts of this State after the first day of July, 1848, except when otherwise provided. therein, and is distributed into fifteen titles. The first four relate to actions in all the courts of the State, and the others to actions in the supreme court, in the county courts, in the superior court of the city of New York, in the court of common pleas for the city and county of New York, in the mayors' courts of cities, and in the recorders' courts of cities, and to appeals to the court of appeals, to the supreme court, to the county courts, and to the superior court of the city of New York.

[1]

See L. 1877, ch. 417, enacted to take effect Sept. 1, 1877.

343

ed.

Division of act.

PART I.

Jurisdic tion.

OF THE COURTS OF JUSTICE AND THEIR JURISDICTION.

TITLE IV.

Of the county courts.

§ 30. The county court has jurisdiction in the following special cases, but has no original civil jurisdiction except in such cases:

2. The exclusive power to review, in the first instance, a judgment rendered in a civil action by a justices' court in the county, or by a justices' court in cities, and to affirm, reverse or modify such judgment.

10. To exercise the power and authority heretofore vested in such courts of common pleas over judgments rendered by justices of the peace, transcripts of which have been filed in the offices of the county clerks in such counties.

11. To exercise all the powers and jurisdiction conferred by statute upon the late courts of common pleas of the county, or the judges or any judge thereof, respecting ferries, fisheries, turnpike roads, wrecks, physicians, habitual drunkards, imprisoned, insolvent, absent, concealed or non-resident debtors, gaol liberties, the removal of occupants from State lands, the laying out of railroads through Indian lands, and upon appeal from the determination of commissioners of highways, and all other powers and jurisdiction conferred by statute, which has not been repealed, on the late court of common pleas of the county, or on the county court, since the late courts of common pleas were abolished, except in the trial and determination of civil actions; and to prescribe the manner of exercising such jurisdiction when the provisions of any statute are inconsistent with the organization of the county court.

TITLE VI.

Of the courts of justices of the peace.

§ 52. The provisions contained in sections two, three and four of the article of the Revised Statutes, entitled "Of the jurisdiction of justices' courts," as amended by sections one and two of the act concerning

justices' courts, passed May 14, 1840, and the provisions contained in sections fifty-nine to sixty-six of the same article, both inclusive, are repealed, and the provisions of this title substituted ir place thereof. But this repeal shall not affect any action heretofore commenced in a court of a justice of the peace.

TITLE 6.

§ 53. Justices of the peace shall have civil jurisdiction in the follow- Jurisdicing actions, and no others, excepting as in the second section [L. 1861, tion. ch. 158] it is provided:

1. In actions arising on contracts for the recovery of money only, if the sum claimed does not exceed two hundred dollars.

2. An action for damages for injury to rights pertaining to the person, or to personal or real property, if the damages claimed do not exceed two hundred dollars.

3. An action for a penalty not exceeding two hundred dollars.

4. An action commenced by attachment of property, as now provided by statute, if the debt or damages claimed do not exceed two hundred dollars.

5. An action upon a bond conditioned for the payment of money, not exceeding two hundred dollars, though the penalty exceed that sum, the judgment to be given for the sum actually due. Where the payments are to be made by installments, an action may be brought for each installment as it becomes due.

6. An action upon a surety bond taken by them, though the penalty or amount claimed exceed two hundred dollars.

7. An action upon a judgment rendered in a court of justice of the peace, or by a justice, or other inferior court in a city, where such action is not prohibited by section 71.

S. To take and enter judgment on the confession of a defendant, where the amount confessed shall not exceed five hundred dollars, in the manner prescribed by article 8, title 4, chapter 2, of part 3 of the Revised Statutes.

9. An action for damages for fraud in the sale, purchase or exchange of personal property, if the damages claimed do not exceed two hundred dollars.

10. An action to recover the possession of personal property claimed, the value of which, as stated in the affidavit of the plaintiff, his agent or attorney, shall not exceed the sum of two hundred dollars.

*The plaintiff, in such action, at the time of issuing the summons, but not afterward, may claim the immediate delivery of such property as hereinafter provided.

Before any process shall be issued in an action to recover the possession of personal property, the plaintiff, his agent or attorney, shall make proof by affidavit, showing:

(1) That the plaintiff is the owner, or entitled to immediate possession, of the property claimed, particularly describing the same.

(2) That such property is wrongfully withheld or detained by the defendant.

(3) The cause of such detention, or withholding thereof, according to the best knowledge, information and belief of the person making the affidavit.

(4) That said personal property has not been taken for any tax, fine or assessment, pursuant to statute, or seized by virtue of an execution

This and the following paragraphs to section 54, consist of L. 1860, ch. 131, §§ 2-13, as amended. They are not a part of the Code of Procedure, but are inserted here, as has been customary, for the sake of convenience.

TITLE 6.

or attachment against the property of said plaintiff; or, if so seized, that it is exempt from such seizure by statute.

(5) The actual value of said personal property.

On receipt of such affidavit, and an undertaking, in writing, executed by one or more sufficient sureties, to be approved by the justice of the peace before whom such action is commenced, to the effect that they are bound in double the value of such property as stated in said affidavit, for the prosecution of said action, and for the return of said property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against said plaintiff, the justice shall indorse upon said affidavit a direction to any constable of the county in which said justice shall reside, requiring said constable to take the property described therein from the defendant, and keep the same, to be disposed of according to law; and the said justice shall, at the same time, issue a summons directed to the defendant, and requiring him to appear bofore said justice, at a time and place to be therein specified, and not more than twelve days from the date thereof, to answer the complaint of said plaintiff; and the said summons shall contain a notice to the defendant that, in case he shall fail to appear at the time and place therein mentioned, the plaintiff will have judgment for the possession of the property described in said affidavit, with the costs and disbursements of said action.

The constable to whom said affidavit, indorsement and summons shall be delivered, shall forthwith take the property described in said affidavit, if he can find the same, and shall keep the same in his custody. He shall thereupon, without delay, serve upon said defendant a copy of such affidavit, notice and summons, by delivering the same to him personally, if he can be found in said county; if not found, to the agent of the defendant in whose possession said property shall be found; if neither can be found, by leaving such copies at the last or usual place of abode of the defendant, with some person of suitable age and discretion. And shall forthwith make a return of his proceedings thereon, and the manner of serving the same, to the justice who issued the said summons.

The defendant may, at any time after such service, and at least two days before the return day of said summons, serve upon plaintiff, or upon the constable who made such service, a notice, in writing, that he excepts to the sureties in said bond or undertaking, and if he fail to do so, all objection thereto shall be waived. If such notice be served, the sureties shall justify, or the plaintiff give new sureties on the return day of said summons, who shall then appear and justify, or said justice shall order said property delivered to defendant, and shall also render judgment for defendant's costs and disbursements.

At any time before the return day of said summons, the said defendant may, if he has not excepted to plaintiff's sureties, require the return of said property to him, upon giving to the plaintiff, and filing same with the justice, a written undertaking, with one or more sureties, who shall justify before said justice on the return day of said summons, to the effect that they are bound in double the value of said property, as stated in plaintiff's affidavit, for the delivery thereof to said plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against said defendant; and if such return be not required before the return day of said summons, the property shall be delivered to said plaintiff.

The qualification of sureties, and their justification under this act, shall be the same as provided in sections 194 and 195 of the Code, in respect to bail on arrest in the supreme court.

Sections 214, 215 and 216 of the Code shall apply to proceedings and actions brought under this act, substituting the word constable for the word sheriff, whenever it occurs in either of said sections.

The actions so commenced shall be tried in all respects as other actions are tried in justices' courts. The judgment for the plaintiff may be for the possession, or for the recovery of the possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. An execution shall be issued thereon, and if the judgment be for the delivery of the possession of personal property, it shall require the officer to deliver possession of the same, particularly describing it, to the party entitled thereto, and may, at the same time, require the officer to satisfy any costs or damages recovered by the same judgment out of the personal property of the party against whom it was rendered, to be specified therein, if a delivery thereof cannot be had. The execution shall be returnable, within sixty days after its receipt by the officer, to the justice who issued the same.

In all actions for the recovery of the possession of personal property, as herein provided, if the property shall not have been delivered to plaintiff, or the defendant, by answer, shall claim a return thereof, the justice or jury shall assess the value thereof, and the injury sustained by the prevailing party by reason of the taking or detention thereof, and the justice shall render judgment accordingly, with costs and disbursements.

If it shall appear by the return of a constable that he had taken the property described in the plaintiff's affidavit, and that defendant cannot be found, and has no last place of abode in said county, or that no agent of defendant could be found on whom service could be made, the justice may proceed with the cause in the same manner as though there had been a personal service.

For the indorsement on said affidavit, the justice shall receive an additional fee of twenty-five cents, which shall be included in the costs of the suit.

TITLE 6.

§ 54. But no justice of the peace shall have cognizance of a civil No jurisaction.

1. In which the people of this State are a party, excepting for penalties not exceeding one hundred dollars.

2. Nor where the title to real property shall come in question, as provided by sections 55 to 62, both inclusive.

3. Nor if a civil action for an assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation or seduction. 4. Nor of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars.

diction.

5. Nor of an action against an executor or adminstrator as such. § 55. In every action brought in a court of justice of the peace, Answer where the title to real preperty shall come in question, the defendant or title. may, either with or without other matter of defense, set forth in his answer any matter showing that such title will come in question.