clusive evidence of the facts so declared to be established thereby against all parties to such proceeding. Former § 2657 of this Code. From L. 1873, c. 552, §§ 1, 2; L. 1874, c. 127. § 2768. [Am'd, 1916.] Definition of expressions used in this chapter. In construing the provisions of this chapter, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof: 1. The word "intestate," signifies a person who died without leaving a valid will; but where it is used with respect to particular property it signifies a person who died without effectually disposing of that property by will whether he left a will or not. 2. The word "assets," signifies personal property applicable to the payment of the debts of a decedent. 3. The word "debts" includes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action; and the word "creditor" includes every person having such a claim or demand, any person having a claim for expense of administration, or any person having a claim for funeral expenses. 4. The word, "will," signifies a last will and testament, and includes all the codicils to a will. 5. The expression, "letters of administration," includes letters of temporary administration. 6. The expression, "testamentary trustee," includes every person, except an executor, an administrator with the will annexed, or a guardian, who is designated by a will, or by any competent authority, to execute a trust created by a will; and it includes such an executor or administrator, where he is acting in the execution of a trust created by the will, which is separable from his functions as executor or administrator. 7. The word, "surrogate," where it is used in the text, or in a bond or undertaking, given pursuant to any provision of this chapter, includes every officer or court vested by law with the functions of surrogate. 8. The expression, “judicial settlement," where it is applied to an account, signifies a decree of a surrogate's court, whereby the account is made conclusive upon the parties to the special proceeding, either for all purposes, or for certain purposes specified in the statute; and an account thus made conclusive is said to be "judicially settled." 9. The expression, "intermediate account," denotes an account filed in the surrogate's office, for the purpose of disclosing the acts of the person accounting, and the condition of the estate or fund in his hands, and not made the subject of a judicial settlement. 10. The expression, "upon the return of a citation," where it is used in a provision requiring an act to be done in the surrogate's court, relates to the time and place at which the citation is returnable, or to which the hearing is adjourned; includes a supplemental citation, issued to bring in a party who ought to be but has not been cited; and implies that before doing the act specified, due proof must be made, that all persons required to be cited have been duly cited. 11. The expression, "persons interested," where it is used in connection with an estate or a fund, includes every person entitled, either absolutely or contingently, to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise except as a creditor. Where a provision of this chapter prescribes that a person interested may object to an appointment or may apply for an inventory, an account, or increased security, an allegation of his interest, duly verified, suffices, although his interest is disputed; unless he has been excluded by a judgment, decree, or other final determination, and no appeal therefrom is pending. 12. The term, "next of kin," includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife. 13. The expression, "real property," includes every estate, interest, and right, legal or equitable, in lands, tenements, or hereditaments, except those which are determined or extinguished by the death of a person seized or possessed thereof, or in any manner entitled thereto, and except those which are declared by law to be assets. The word, "inheritance," signifies real property as defined in this subdivision, descended as prescribed by law. The expression, "personal property," signifies every kind of property which survives a decedent, other than real property as defined in this subdivision, and includes a right of action conferred by special statutory provision upon an executor or administrator. 14. The word "guardian" refers to a guardian of an infant's person or property, or both, appointed by the surrogate's court or the supreme court, and includes a guardian appointed by will or deed. 15. Whenever in this chapter a paper or instrument is required to be "acknowledged, or proved, and duly certified," the same shall be acknowledged or proven in the same manner as a deed is required to be acknowledged or proved and certified to be recorded in that county, except that when executed within the state of New York, no certificate of the county clerk shall be required. 16. The word "respondent" when used in this chapter signifies every party to a special proceeding, except the petitioner. 17. The words "surrogate's court" and "surrogate" where they refer to jurisdiction mean the particular court or surrogate having jurisdiction of the estate or fund. 18. [Am'd, 1916.] Whenever in this chapter a citation, order, notice or paper is directed to be deposited in the “post-office" or in a "specified post-office," such deposit may be made or directed to be made in any post-office, branch post-office, sub-station or letter box maintained and exclusively controlled by the United States government. Former § 2514 of this Code, with additions. Am'd by L. 1916, c. 447 (in effect lav 29, 1916). § 2769. Application of chapter; confirmation of previous acts. Each provision of this chapter, relating to the jurisdiction of the surrogate's court, to take the proof of a will, and to grant letters testamentary or letters of administration or regulating the mode of proceeding in any manner connected with the estate of the decedent applies, unless otherwise expressly declared therein, whether the will was made, or the decedent died, before or after this chapter takes effect. All acts hitherto of surrogates and officers acting as such in completing by certifying in their own names any uncertified wills, and by signing and certifying in their own names any uncertified records of wills and of other proofs and examinations taken in the proceedings of probate thereof, before their predecessors in office, are hereby confirmed and declared to be valid and in full compliance with the pre-existing statutory requirements. Former § 2482 of this Code. From 2 R. S. 68 (Part 2, c. 6, tit. 1), § 68b; L. 1893, c. 686. § 2770. Certain provisions made applicable to proceedings in surrogate's courts. Except where a contrary intent is expressed in, or plainly implied from the context of, a provision of this chapter, all other portions of this act, and the general rules of practice apply to surrogates' courts and to the proceedings therein, so far as they can be applied to the substance and subject matter of a proceeding without regard to its form. Former § 2538 of this Code. § 2771. [Am'd, 1915. Effect of this chapter. Nothing in this chapter shall repeal, amend or modify any existing law specially applying to any county, which is inconsistent with any section of this chapter, nor in any manner affect any litigation, action or special proceeding pending at the time when this act takes effect, except as hereinafter stated, and such pending action or special proceeding shall proceed under the practice established, the same as though not affected by this act; provided, however, that the provisions of this chapter relating to the trial by jury of controverted questions of fact shall apply to all such pending actions or special proceedings. New. Am'd by L. 1915, c. 274 (in effect April 13, 1915). 802-824 CHAPTER XIX. Courts of Justices of the Peace, and Proceedings Therein. TITLE TITLE TITLE TITLE L.- Jurisdiction and General Powers. II. Commencement of Action; Appearance of III.- Pleadings; Including Counterclaims, and IV. Proceedings Between the Joinder of Issue TITLE V. Trial and its Incidents. TITLE VI.— Judgment; and Docketing the Same. TITLE VII. Executions. TITLE Vill. Appeals. TITLE IX.- Costs. TITLE X. Action or Special Proceeding, Relating to an TITLE TITLE XI. Provisions Specially Relating to Courts of XII.-Miscellaneous Provisions. TITLE I. Jurisdiction and general powers. Sec. 2861. Justice's Jurisdiction must be specially conferred by statute. 2862. General civil jurisdiction. 2863. No jurisdiction in certain cases. 2864. Confession of judgment. 2865. Actions by and against officers, etc.; and by executors, etc. 2866. Tavern-keepers disqualified. 2867. Members of legislature not compelled to act. 2868. Justices to hold courts; general powers. 2869. In what town, etc., action must be brought. 2870. Criminal contempts. 2871. Id.; how punished. 2872. Offender to be heard. 2878. Record of conviction. 2874. Requisites of commitment. 2875. Fine to be paid to overseer or superintendent of the poor. 2861. Justice's jurisdiction must be specially conferred by statute. A justice of the peace has such jurisdiction in civil actions and special proceedings, as is specially conferred upon him by statute, and no other. From Co. Proc., § 53. § 2862. [Am'd, 1896, 1906.] General civil jurisdiction. Except as otherwise prescribed in the next section, a justice of the peace has jurisdiction of the following civil actions : 1. An action to recover damages upon or for breach of a contract, express or implied, other than a promise to marry, where the sum claimed does not exceed two hundred dollars. 2. An action to recover damages for a personal injury, or aa injury to property, where the sum claimed does not exceed two hundred dollars. 3. An action for a fiue or penalty, not exceeding two hundred dollars. JUST 4. An action upon a bond conditioned for the payment of money, where the sum claimed to be due does not exceed two hundred dollars; the judgment to be rendered for the sum actually due. Where the sum secured by the bond is to be paid in instalments, an action may be brought for each instalment, as it becomes due. 5. An action upon a surety bond, taken by any justice of the peace. 6. An action upon a judgment, either foreign or domestic, rendered in any inferior court not of record, where the sum claimed does not exceed two hundred dollars. An action upon a judgment, foreign or domestic, rendered in a court of record, where the sum claimed does not exceed fifty dollars. 7. An action to recover one or more chattels, with or without damages for the taking, withholding, or detention thereof, where the value of the chattel, or of all the chattels, as stated in the affidavit made on the part of the plaintiff, does not exceed two hundred dollars. 8. An action to recover damages for an escape from the jail liberties, as provided by chapter two, title two, articles four and five of this act, where the sum claimed does not exceed fifty dollars. From Co. Proc., § 53. Subd. 8 added by L. 1896, c. 303 (in effect Sept. 1, 1896). Subd. 6, am'd by L. 1906, c. 246 (in effect Sept. 1, 1906). § 2863. [Am'd, 1882, 1895, 1909.] No jurisdiction in certain cases. But a justice of the peace cannot take cognizance of a civil action, in either of the following cases: 1. Where the people of the State are a party, except for one or has more fines or penalties not exceeding two hundred dollars. 2. Where the title to real property comes in question, as prescribed in title third of this chapter. 3. Where the action is to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution, or where it is brought under sections 1837, 1902, or 1969 of this act, or sections 28 or 101 of the Decedent Estate Law. 4. Where, in a matter of account, the sum total of the accounts of both parties proved to the satisfaction of the justice, exceeds four hundred dollars. 5. Where the action is brought against an executor or administrator as such, except where the amount of the claim is less than the sum of fifty dollars, and the claim has been duly presented to the executor or administrator and rejected by him. From Co. Proc., § 54. Am'd by L. 1882, c. 399; L. 1895, c. 527; L. 1909, c. 65. § 2864. Confession of judgment. 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. From Co. Proc., § 53, subd. 8. § 2865. [Am'd, 1882.] Actions by and against officers, etc.; and by executors, etc. 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, trustee of an express trust, or a receiver in supplementary proceedings. From 2 R. S. 226 (Part 3, c. 2, tit. 4), § 5; L. 1847, c. 470, § 45. Am'd by L. 1882, c. 399. Section 28 of the Decedent Estate Law is the same as § 1868 of this edition of the Code; as to § 101, see the foot-note on page 506. |