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title will come in question. Such answer shall be in writing, signed by the defendant or his attorney, and delivered to the justice. The justice shall thereupon countersign the same and deliver it to the plaintiff.

30 B., 603; 27 B., 215; 26 B., 470; 19 How. P. R., 321. Undertak

$ 56. At the time of answering, the defendant shall deliver Ing thereon to the justice a written undertaking, executed by at least one

sufficient surety, and approved by the justice, to the effect, that if the plaintiff shall within twenty days thereafter deposit with the justice a summons and complaint in an action in the supreme court for the same cause, the defendant will, within twenty days after such deposit, give an admission in writing of the service thereof.

Where the defendant was arrested in the action before the justice, the undertaking shall further provide, that he will at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable, not exceeding one hundred dollars.

Amended by Laws of 1851, ch. 479; 1858, ch. 306.
36 B. 49; 26 B., 470; 22 B., 323; 4 How. P. R., 340; 12 Ab., 64; 10

Ab., 339. S 57. Upon the delivery of the undertaking to the justice, Justice to be the action before him shall be discontinued, and each party discontinued. shall pay his own costs. The costs so paid by either party Oosts.

shall be allowed to him, if he recover costs in the action to be brought for the same cause in the supreme court. If no such action be brought within thirty days after the delivery of the undertaking, the defendant's cost before the justice may be recovered of the plaintiff.

Amended by Laws of 1851, ch. 479; 1858, ch. 306. 30 How, P. R , 26. $ 58. If the undertaking be not delivered to the justice, he shall have jurisdiction of the cause, and shall proceed therein; and the defendant shall be precluded, in his defense, from drawing the title in question.

26 B., 470. The same. S 59. If, however, it appear on the trial, from the plaintiff's

own showing, that the title to real property is in question and such title shall be disputed by the defendant, the justice shall dismiss the action, and render judgment against the plaintiff for the costs.

26 B., 470; 34 N. Y., 453, 461; 25 N. Y., 181; 43 B., 46; 42 B , 355;

27 How. P. R., 287. Now action S 60. When a suit before a justice sball be discontinued by

the delivery of an answer and undertaking, as provided in sections fifty-five, fifty-six and fifty-seven, the plaintiff may prosecute an action for the same cause, in the supreme court,

and shall complain for the same cause of action only on Plendings therein.

which he relied before the justice; and the answer of the

in fupreme court.



defendant shall set up the same defense only which he made
before the justice.

Amended by Laws of 1851, ch. 479; 1858, ch. 306.
30 B., 346; 22 B., 325; 19 B., 186; 12 low. P. R., 374; 7 How. P. R.,

406; 6 How. P. R., 135. $ 61. If the judgment in the supreme court be for the plain- Costs of tiff, he shall recover costs; if it be for the defendant, he shall supreme recover costs, except that upon a verdict he shall pay costs to the plaintiff, unless the judge certify that the title to real property came in question on the trial.

As amended by Laws of 1851, ch. 479; 1858, ch. 306; 19 Ilow. P.

R., 321; 30 How. 26. S 62. If, in an action before a justice, the plaintiff have sev- Proceen. eral causes of action, to one of which the defense of title to geral real property shall be interposed, and as to such cause, the causes of

, defendant shall answer and deliver an undertaking, as pro- lies to vided in sections fifty-five and fifty-six, the justice shall one. discontinue the proceedings as to that cause, and the plaintiff may commence another action therefor in the supreme court. As to the causes of action, the justice may continue his proceedings. All actions pending in any county court, on the seventh day of May, eighteen hundred and fifty-eigbt, in all cases in which a plea of title was interposed in actions originally commenced in a justice's court, are transferred to and vested in the supreme court, with full power and jurisdiction to proceed therein as commenced in said supreme court, by reason of a plea of title having been interposed in a justice's 'court in like cases.

Amended by Laws of 1851, ch. 479; 1858, ch. 306; 1860, ch. 459. $ 63. A justice of the peace, on the demand of a party in Docketing whose favor he shall have rendered a judgment, shall give a judgments, transcript thereof, which may be filed and docketed in the thercor. office of the clerk of the county where the judgment was rendered. The time of the receipt of the transcript by the clerk shall be noted thereon and entered in the docket; and, from that time, the judgment shall be a judgment of the county conrt. A certified transcript of such judgment may be filed and docketed in the clerk's office of any other county, and with the like effect, in every respect, as in the county where the judgment was rendered ; except that it shall be a lien, only from the time of filing and docketing the transcript. But no such judgment for a less sum than twenty-five dollars, exclusive of costs, hereafter docketed, shall be a lien upon, or enforced against real property.

32 B., 49; 25 B., 105; 11 B., 484; 9 B., 382 ; 12 Ab., 64; 10 Ab., 339. $ 64. The following rules shall be observed in the courts of Rules in

justices' justices of the peace: 1. The pleadings in these courts are:

The plead 1. The complaint by the plaintiff;

2. The answer by the defendant. 2. The pleadings may be oral, or in writing ; if oral, the



PART III. Pleadings,


what to contain.


Proccedingy on de murrer.

Plaintiff to

fendant do diot appear. Proceeding, in action on account, or instrument

for pay

substance of them shall be entered by the justice in his docket; how put in. if in writing, they shall be filed by him, and a reference to

them shall be made in the docket. Complaint. 3. The complaint shall state, in a plain and direct manner,

the facts constituting the cause of action.

4. The answer may contain a denial of the complaint, or of any part thereof, and also notice in a plain and direct manner,

of any facts constituting a defense, or counter claim. Plendings, 5. Pleadings are not required to be in any particular form,

but must be such as to enable a person of common under standing to know what is intended.

6. Either party may demur to a pleading of his adversary, or any part thereof, when it is not sufficiently explicit to enable him to understand it, or it contains no cause of action or defense, although it be taken as true.

7. If the court deem the objection well founded, it shall order the pleading to be amended, and, if the party refuse to amend, the defective pleading shall be disregarded.

8. In case a defendant does not appear and answer, the euse, il dc plaintiff cannot recover, without proving his case.

9. In an action or defense, founded upon an account or an instrument for the payment of money only, it shall be sufficient for a party to deliver the account or instrument to the court, and to state, that there is due to him thereon from the adverse party a specified sum, which he claims to recover

or set off. only. Variance,

10. A variance between the proof on the trial, and the allegations in a pleading, shall be disregarded as immaterial, unless the court shall be satisfied, that the adverse party has

been misled to his prejudice thereby. Amending 11. The pleadings may be amended at any time before the pleadings.

trial, or during the trial, or upon appeal, when by such amendment substantial justice will be promoted. If the amendment be made after the joining of the issue, and it be made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment shall be granted. The court may also, in its discretion, require as a condition

of an amendment, the payment of costs to the adverse party. Exccntion, 12. Execution may be issued on a judgment heretofore or

hereafter rendered in a justice's court, at any time within five years after the rendition thereof, and shall be returnable sisty days from the date of the same.

13. If the judgment be docketed with the county clerk, the on justices' judgment

execution shall be issued by him to the sheriff of the county, docketed.

and have the same effect, and be executed in the same man. ner as other executions and judgments of the county court,

except as provided in section 63. Requiring 14. The court may, at the joining of issue, require either exhibit his party, at the request of the other, at that or some other spe

cified time, to exhibit his account or demand, or state the

ment of money

when dis: regarded.

when issuable and returnable,





to these

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nature thereof as far forth as way be in his power, and in case of his default preclude him from giving evidence of such parts thereof as shall not have been so exhibited or stated.

15. The provisions of this act, respecting forms of action, Certain parties to actions, the rules of evidence, the times of com- applicable mencing actions, and the service of process upon corporations, sball apply to these courts. The defendant may, on the return of process, and before answering, make an offer in writing to allow judgment to be taken against him for an amount, to be stated in such offer, with costs. The plaintiff shall thereupon, and before any other proceedings shall be had in the action, determine whether he will accept or reject such offer. If he accept the offer, and give notice thereof in writing, the justice shall file the offer and the acceptance thereof, and render judgment accordingly. If notice of acceptance be not given, and if the plaintiff fail to obtain judgment for a greater amount, exclusive of costs, than has been specified in the offer, he shall not recover costs, but shall pay to the defendant his costs accruing subsequent to the offer.

Amended by Laws of 1851, ch. 479 ; 1852, ch. 392; 1800, ch. 459; 1867,

cb. 781. 30 B, 315; 29 B., 513; 28 B., 512; 25 B., 106; 23 B.,
317; 22 B, 96, 152, 247 ; 19 B., 666; 16 B., 587; 15 B., 605; 12
B., 469; 11 B., 484, 659; 9 B., 382; 11 How. P. R., 147; 10 How.
P. R., 60; 12 Ab., 53, 61; 3 Ab., 101, 108; 1 Ab., 416; 4 E. D. S.,
149; 2 E. D. S., 247, 374; 31 N. Y., 213; 18 Ab., 402.

CHAPTER I. The marine court of the city of New York. ·

II. The justices' courts in the city of New York.
III. The justices' courts of cities.
IV. General provisions.


THE MARINE COURT OF THE CITY OF NEW YORK. Sec. 65. Its jurisdiction. $ 65. The marine court of the city of New York shall have Its juris

diction. jurisdiction in the following cases, and no other:

1. In actions similar to those in which courts of justices of the peace have jurisdiction, as provided by sections 53 and 54;

2. In an action upon the charter or a by-law of the corporation of the city of New York, where the penalty or forfeiture shall exceed twenty-five dollars, and not exceed one hundred dollars;

3. In an action between a person belonging to a vessel in the merchant service, and the owner, master or commander thereof, demanding compensation for the performance, or damages for the violation of a contract for services on board such vessel, during a voyage performed, in whole or in part, or intended to be performed, by such vessel, though the sum demanded exceed one hundred dollars ;


4. In an action by or against any person belonging to or on board of a vessel in the merchant service, for an assault and battery or false imprisonment, committed on board such vessel, upon the high seas, or in a place without the United States, of which the ordinary courts of law of this state have jurisdiction, though the damages demanded exceed one hundred dollars. But nothing in this or the last preceding subdivision of this section, shall give the court power to proceed in any of the cases therein referred to, as a court of admiralty or maritime jurisdiction.

10 Ab., 431; 36 B., 345.

Their Jurisdiction.

SEC. 66. Their jurisdiction.

S 66. The assistant justices' courts in the city of New York, shall hereafter be styled the justices' courts in the city of New York, and shall have jurisdiction in the following cases :

1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54.

2. In an action upon the charter or a by-law of the corporation of the city of New York, where the penalty or forfeiture shall not exceed one hundred dollars.

12 N. Y., 638; 20 B., 298.

Their jarisdiction.


SEC. 67. Their jurisdiction,

S 67. The justices' courts of cities, shall have jurisdictio: in the following cases, and no other :

1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54.

2. In an action upon the charter or by-laws of the corporations of their respective cities, where the penalty or forfeiture shall not exceed one hundred dollars. 36 B., 613.

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Sections 55

this title.

SEC. 68. Sections 55 to 64 applied to the courts embraced in this title.

S 68. The provisions of sections fifty-five to sixty-four, both cable to the inclusive, relating to forms of action, to pleadings, to the Conces im- times of commencing actions, to the rules of evidence, to filing

and docketing transcripts of judgments, to their effect, and the mode of enforcing them, and to proceedings where title to real property shall come in question, shall apply to the courts embraced in this title; except that, after the discontinuance of the actions in the inferior court upon an answer of title, the new action may be brought either in the supreme court, or in any other court having jurisdiction thereof, and except

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