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from the court of common pleas, applies not only to proceedings in court, but also to all such proceedings as by statute are authorized to be instituted before any judge of the court (Devlin v. Platt, 11 Abb. 398), and, therefore, a proceeding before a judge of that court to compel delivery of books, &c., of a public office, cannot, before a final determination thereof, be removed into the supreme court by certiorari (id.).
§ 34. (Am'd 1849.) Common pleas to review certain judgments. The court of common pleas for the city and county of New York, shall also have power to review the judgments of the marine court of the city of New York, and of the justices' courts in that city.
See sections 427, 352; Hawkins v. Mayor of N. Y., 5 Abb. 344.
$35. Terms. Fees.
The superior court of the city of New York, and the court of common pleas for the city and county of New York shall, within twenty days, appoint general and special terms of those courts, respectively, and prescribe the duration thereof; and they may, from time to time, respectively alter such appointments; and hereafter no fees shall be paid for any services of a judge of either of those courts.
$36. By whom held.
A general term shall be held by at least two of the judges of those courts respectively, and a special term by a single judge.
§ 37. Judgments, where given.
Judgments upon appeal shall be given at the general term; all others, at the special term.
$38. Judgment, how pronounced.
The concurrence of two judges shall be necessary to pronounce a judgment at the general term. If two do not concur the appeal shall be reheard.
A crier shall be appointed by the superior court of the city of New York, and by the court of common pleas for the city and county of New York, respectively, to hold his office during the pleasure of the court. He shall receive a salary, to be fixed by
the supervisors of the city and county of New York, and paid out of the county treasury.
$ 40. Superior Court Judges.
The superior court of the city of New York, shall, from the first day of May, 1849, consist of six justices.
[Sections 41 to 45, inclusive, obsolete.]
A general term of the superior court may be held by any two of the six justices thereof, and a special term by any one of them; and general and special terms, one or more of them, may be held at the same time.
§ 47. [As am'd Laws 1851, p. 8.] Certain suits may be transferred. All civil suits at issue at the time of the passage of this act, that from and after the first of May, 1849, shall be placed upon the calendar of the supreme court, at any general or special term thereof to be held in the city of New York, and which shall be in readiness for hearing on questions of law only, or are equity cases, may by an order of that court, or of the judge holding such special term, be transferred to the said superior court of the city of New York, and to be heard at the general terms thereof.
§ 48. Jurisdiction of transferred suits.
The said superior court shall have jurisdiction of every suit so transferred to it, and may exercise the same powers in respect to every such suit, and any proceedings therein, as the supreme court might have exercised, if the suit had remained in that court.
49. [This section was repealed, Laws 1851, p. 8. ]
§ 50. Appeal.
Appeals from the judgments of the superior court in such suits, may be taken to the court of appeals, in the same manner as from the judgments of the superior court in actions originally commenced therein.
$51. Section applied.
The provisions of section twenty-eight of this act, shall apply to the said superior court.
52. (Am'd 1849.) Repeal of existing provisions.
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 [fourth] article, both inclusive, are repealed, and the provisions of this title substituted in place thereof. But this repeal shall not affect any action heretofore commenced in a court of a justice of the peace.
§ 53. (Am'd 1849, 1851, 1860, 1861, 1862, 1865.) Jurisdiction.
Justices of the peace shall have civil jurisdiction in the following actions, and no others, excepting as in the second section [of laws of 1861, 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 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.
8. 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 one hundred dollars.
The plaintiff in such action, at the time of issuing the summons, but not afterwards, may claim the immediate delivery of 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
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 or attachment against the property of said plaintiff; or if so seized, that it is exempted 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 endorse 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 before 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, endorsement, 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
The defendant may at any time after such service, and at least two days before the return day of said summons, serve upon plain. tiff 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