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3154. In an action upon a judgment of a justice of the peace, brought in the county wherein it was rendered, within five years after the rendition thereof, against a defendant upon whom the summons was, personally served, no costs can be recovered, except where the justice, who rendered the judgment, is dead, or out of office, or otherwise incapable of acting; or has removed from the county; or where one of the parties has died; or where the docket of the judgment has been lost or destroyed.
3155. In an action brought upon a judgment of a justice of the peace, who is dead, or out of office, or otherwise incapable of acting; or has removed from the county; or cannot be found therein; the original docketbook of the justice is presumptive evidence of any matter entered therein, as prescribed by law; but the presumption may be repelled by proof. If the docket book is lost or destroyed, or if it cannot be produced, after reasonable effort to obtain it, the like proof may be given, respecting the recovery of the judgment, as upon any other question of fact.
3156. A justice of the peace, who issues any mandate, authorized by this chapter, except a venire, may, at the request of the party, whenever he deems it expedient so to do, empower, by a written authority indorsed upon the mandate, any proper person of full age, not a party to the action, to serve, or otherwise execute it. For that purpose, the person so empowered has all the power and authority, and is subject to all the obligations and liabilities, of a constable; and his return is evidence in like manner as a constable's. But a person so empowered is not entitled to any fee or reward for his services.
3157. A constable, to whom a mandate is directed and delivered as prescribed in this chapter, must execute it in person, pursuant to the tenor thereof. He cannot act by deputy in such a case.
3158. If a constable, to whom a mandate, issued by a justice of the peace, is directed and delivered, finds, or has reason to apprehend, that resistance will be made to the execution thereof, he may deliver it to the sheriff of the county, with a written certificate, stating the facts, and requiring the sheriff to execute it. Thereupon the sheriff must execute the mandate; and he is subject to all the liabilities attaching to a constable in executing it. Sections one hundred and four, one hundred and five, and one hundred and six of this act apply to a mandate delivered to a sheriff, as prescribed in this section.
PROVISIONS RELATING TO CERTAIN COURTS IN CITIES,
TITLE I. THE MARINE COURT OF THE CITY OF NEW YORK.
III.-THE CITY COURT OF YONKERS.
TITLE V.-THE MUNICIPAL COURT OF THE CITY OF ROCHESTER.
The marine court of the city of New York.
ARTICLE 1. Provisions generally applicable to proceedings in the court. 2. Provisions exclusively applicable to the proceedings, other than appeals, in an ordinary action.
3. Provisions exclusively applicable to the proceedings, other than appeals, in certain marine causes.
4. Appeals to and from the general term of the court.
PROVISIONS GENERALLY APPLICABLE TO PROCEEDINGS IN THE COURT.
§3159. Provisions, applying generally
to courts of record, subject to
3160. Certain sections inapplicable to
3161. Time for service of notices.
§ 3162. Service of notice of trial; filing of note of issue.
3163. When court may relieve from imprisonment.
3164. Money; how paid into the court.
3159. Each of the foregoing provisions of this act, which is made, by chapter twenty-second of this act, applicable to the marine court of the city of New York, or generally to courts of record, is subject to the qualifications and exceptions expressed or plainly implied in this title.
§ 3160. Sections four hundred and thirty-eight and six hundred and three, sections six hundred and eleven to six hundred and nineteen, both inclusive, and sections six hundred and thirty-six, eight hundred and twentyseven, one thousand and thirteen, and one thousand and fifteen of this act do not apply to an action or a special proceeding brought in the marine court of the city of New York, or before a justice thereof, or to any proceeding therein. Sections three thousand two hundred and sixty-eight and three thousand two hundred and sixty-nine of this act do not apply to an action in the court, prosecuted as prescribed in article third of this title; or where an undertaking has been given as prescribed in section three thou sand one hundred and sixty-five of this act. A plaintiff, in an action brought in the court, who has an office for the regular transaction of business in person, within the city of New York, is deemed a resident of that city, within the meaning of sections three thousand two hundred and sixty. eight and three thousand two hundred and sixty-nine of this act.
3161. The time for personal service of certain notices, in an action brought in the court, is as follows:
1. Notice of justification of the sureties, in an undertaking given by the plaintiff, as security for the defendant's costs, not more than two days.
2. Notice of an application for judgment in a case specified in section five hundred and thirty-seven of this act; notice of a motion to strike out a pleading, in a case specified in section five hundred and thirty-eight of this act; notice of an application for judgment upon the defendant's default, or of the execution of a reference, or writ of inquiry, or of an assessment thereupon, as prescribed in section one thousand two hundred and nineteen of this act; not less than two days.
3. Notice of the justification of bail, not less than two, nor more than
4. Notice of a motion, other than a motion specified in subdivision second of this section, not less than four days; but the court or a justice thereof may, upon an affidavit showing grounds therefor, prescribe a shorter time, by an order to show cause.
5. Notice of trial of an issue of fact, or of an issue of law; notice of the
hearing of an appeal, or of any other hearing, the time for serving which is not expressly prescribed in either of the foregoing subdivisions of this section, or elsewhere in this title; not less than five days.
8. Notice of taxation of costs, not less than two days; except where all the attorneys, serving and served with the notice, reside or have their offices in the city of New York, in which case, one days' notice is sufficient.
§ 3162. Notice of trial of an issue triable at a term of the court, or of the hearing of an appeal to the general term of the court, may be given for any day of the term. A note of issue must be filed at least two days before the day, or the commencement of the term, for which the notice of trial or hearing is given; and, if it relates to the trial of an issue of fact, or of law, it must, in addition to the matters specified in section nine hundred and seventy-seven of this act, state the day or the term, for which the notice has been given. But this and the last section do not apply to a case where special provision is otherwise made in article third of this title.
3163. Where it satisfactorily appears that a party, who is actually confined in jail, by virtue of an order of arrest, or an execution against the person, issued in an action brought in the court, is physically unable to endure the confinement, and that he cannot procure bail, or the necessary sureties in a bond for the jail liberties, as the case requires, the court, or a justice thereof, may, in its or his discretion, by order, direct the sheriff to release him from custody. The sheriff must obey such an order. After such a release from an execution against the person, another execution, against the person of the judgment debtor, cannot be issued upon the judgment; but the judgment creditor may enforce the judgment against property, as if the execution, from which the judgment debtor was released, had been returned without his being taken.
S3164. Money paid into the court, pursuant to any provision of this act, must, unless the court otherwise directs, be paid directly to the chamberlain of the city of New York, to the credit of the cause in which it is paid.
PROVISIONS EXCLUSIVELY APPLICABLE TO THE PROCEEDINGS, OTHER THAN APPEALS, IN AN ORDINARY ACTION.
3166. Time of service of pleadings,
3167. Enforcement of certain judg-
3168. Time for non.acceptance and
3170. Service of summons without the
3171. Commission to take testimony. 3172. Court may refer question arising upon a motion.
3173. Time for filing decision upon a
3176. Portion of verdict, etc., may be
3165. The summons, in an action brought in the court, must state that the time, within which the defendant must serve a copy of his answer, is six days after the service thereof, exclusive of the day of service; except in one of the following cases:
1. A justice of the court may, upon satisfactory proof, by affidavit, that either the plaintiff or the defendant resides without the city of New York; or, where there are two or more plaintiffs, or two or more defendants, that all the plaintiffs or all the defendants reside without that city, direct, by an order, that the defendant be summoned to answer within a shorter time,
specified therein, not less than two days after the service of the summons, exclusive of the day of service; whereupon the summons must correspond to the order. The order must be indorsed upon or annexed to the summons; and a copy thereof must be delivered with a copy of the summons. The justice may, in his discretion, as a condition of granting the order, require the plaintiff to give an undertaking, with one or more sureties, to the effect that the plaintiff will pay any judgment which may be rendered against him in the action, not exceeding a sum specified in the undertaking, which must be at least two hundred dollars.
2. Where an order, directing service of the summons without the city of New York, or by publication, is granted, the summons must state that the time, within which the defendant must serve a copy of his answer, is ten days after service thereof, exclusive of the day of service. If a summons, requiring the defendant to answer within a shorter time, has been issued, as prescribed in this section, before an order specified in this subdivision is granted, the justice granting such an order may direct that the summons be amended accordingly; and thereupon the summons published, or served without that city, pursuant to the order, must correctly state the time.
3166. The time, within which a defendant in a case specified in section four hundred and seventy-nine of this act must demand a copy of the complaint, and the time within which the plaintiff must serve the same, after a demand thereof, as prescribed in that section, and the time, within which a copy of a pleading, subsequent to the complaint, must be served, after the service of a copy of the preceding pleading, is the same number of days, as stated in the summons, within which the defendant is required to serve a copy of his answer, after service of the summons. But, except as otherwise prescribed in section three thousand one hundred and eighty. five of this act, a defendant, arrested before answer, has ten days after the arrest, within which to demand a copy of the complaint or to serve a copy of his answer, as the case requires; and judgment must be stayed accordingly.
3167. Section three thousand two hundred and twenty-one of this act applies to an action brought in the court and to the judgment and execution against the person and property of the judgment debtor.
$3168. The time for taking certain proceedings, in an action brought in the court, is as follows:
1. Service of notice of non-acceptance of bail, within five days after the delivery, to the plaintiff's attorney, of certified copies of the order of arrest, return, and undertaking, as prescribed in section five hundred and seventy-seven of this act.
2. Service of notice of justification of the bail, within five days after service of the notice specified in subdivision first of this section.
3. Service of notice of exception to the sureties, in an undertaking given by the plaintiff, as security for the defendant's costs, within two days after service, upon the defendant's attorney, of a written notice of the filing thereof; and service of notice of the justification of the same, or new sureties, within two days after service of the notice of exception.
3169. In order to entitle the plaintiff to a warrant of attachment against property, he must show by affidavit, to the satisfaction of the jus tice granting it, that a sufficient cause of action exists against the defendant, to recover damages for one or more causes specified in section six hundred and thirty-five of this act, to an amount stated in the affidavit; which, if the action is to recover damages for breach of a contract, must
be stated over and above all counterclaims known to the plaintiff; and lso that the case is within one of the following subdivisions:
1. That the defendant is a foreign corporation; or a domestic corporation whose principal place of business is not within the city of New York.
2. That the defendant is not a resident of the State.
3. That the defendant, being a resident of the State, is not a resident of the city of New York; and has not an office within that city, where he regularly transacts business in person.
4. That the defendant, being an adult and a resident of that city, has departed therefrom, with intent to defraud his creditors, or to avoid service of the summons; or keeps himself concealed therein, with the like intent; or that, after proper and diligent effort to ascertain the place of the sojourn of such a resident adult defendant, the same cannot be ascertained.
5. That the defendant, being an adult, has removed, or is about to remove, property from that city, with intent to defraud his creditors, or that he has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property, with the like intent.
6. That the defendant, being an adult and a resident of that city, has been continuously without the United States more than six months next before the granting of the warrant, and has not made a designation of a person upon whom to serve a summons in his behalf, as prescribed in section four hundred and thirty of this act; or a designation so made no longer remains in force.
3170. An order, directing the service of a summons, either without the city of New-York, or by publication, may be granted by the court, or by a justice thereof; but only in a case, where a warrant of attachment has been issued, as prescribed in the last section, and personal service of the summons cannot be made, with due diligence, within that city. The plaintiff, when he apply for such an order, must show by affidavit, to the satisfaction of the court or justice, that the case is within this section. Where an order is granted, as prescribed in this section, service of the summons without that city may be made, as directed in the order, either within or without the State. Sections 440 to 445, both inclusive, and sections 638, 707, and 708 of this act apply to the service or publication, pursuant to such an order, and to the proceedings relating to the same, and subsequent thereto; substituting the words, "the city of New-York ", in place of the words, "the State ", wherever the latter words occur. If the defendant is a resident of the city of New-York, the order must also direct that a copy of the summons, complaint, and order be left at his residence, specifying it, with a person of suitable age and discretion, if, upon reasonable applica tion, admittance can be obtained, and such a person found who will receive it; or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer door of the residence so specified.
3171. The application, to the court, of article second of title third of chapter ninth of this act, is subject to the following qualifications:
1. The words, "the city and county of New-York, or either of the counties of Richmond, Kings, Queens, or Westchester", must be regarded as subsututed, in place of the words, "the State", wherever those words are used in that article, with respect to the locality of a witness.
2. Interrogatories, framed pursuant to that article, can be settled only by a justice of the court.