all the entries in his docket-book, relating to the cause; a copy of his minutes of the evidence in the cause, or the substance of the testimony, if he has not taken minutes; and a copy of any paper on file in the cause; or such portions thereof as are required.

From L. 1841, c. 141, § 1.

§ 3150. Transfer of action when justice's term expires, etc.

If the term of office of a justice of the peace is about to expire, or he is about to remove from the town or city, before judgment is rendered in an action, or a final order is made in a special proceeding, pending before him, he must previously make a written order, reciting the fact, and directing the action or special proceeding to be continued before another justice of the same town or city, named in the order.

New.

§ 3151. Id.; when Justice is a witness.

If, before an issue of fact is joined in an action or special proceeding, the defendant, or, where he has not been arrested, his attorney, presents to the justice satisfactory proof, by affidavit, that the justice, before whom the action or special proceeding is pending, is a material witness for the defendant, without whose testimony he cannot safely proceed to trial, setting forth therein the particular facts and circumstances, which he expects to prove by him, the justice must forthwith make a written order, directing the action or special proceeding to be continued before another justice of the same town or city, named in the order.

From 2 R. S. 229 (Part 3, c. 2, tit. 4), § 21; Id., 246, § 118; L. 1838, c. 243; L. 1875, c. 334.

§ 3152. Proceedings upon transfer.

Where an order is made, as prescribed in either of the last two sections, the constable must forthwith take it, and all other papers in the action, with the body of the defendant, if he is under arrest, before the justice named in the order. The plaintiff or petitioner must forthwith appear before that justice, who must take cognizance of the action or special proceeding, and must proceed therein as if it had been commenced before him. Costs, recovered in the action or special proceeding, include the fees allowed by law, for services performed by the constable and the justice, before the transfer, together with the fees allowed by law, for the proceedings before the justice to whom the cause is transferred.

Id.

§ 3153. Penalty for not paying over money.

A justice of the peace, who neglects or refuses, within a reasonable time after demand, to pay any money, collected by him in his official capacity, to the person entitled thereto, is guilty of a misdemeanor, and shall be punished accordingly. A conviction also operates as a forfeiture of his office.

From 2 R. S. 271, § 259.

§ 3154. Action on judgment of Justice.

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.

From Co. Proc., § 71, last clause.

§ 3155. Id.; proof of judgment, etc.

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 docket-book 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.

From 2 R. S. 271, 272, §§ 265, 267.

§ 3156. Execution of mandate by private person.

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. From Id., 273, §§ 271, 272.

§ 3157. Constable to execute mandates in person.

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.

From Id., § 273.

§ 3158. (Am'd, 1909.] Sheriff to act where execution of mandate is resisted.

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 400 and 401 of the Judiciary Law apply to a mandate delivered to a sheriff, as prescribed in this section.

New. Am'd by L. 1909, c. 65 (in effect Feb. 17, 1909).

CHAPTER XX.

Provisions Relating to Certain Courts in Cities, and the Proceedings Therein.

TITLE I. The City Court of the City of New-York, TITLE II. The Mayor's Court of the City of Hudson, and the Recorders' Courts of the Cities of Utica and Oswego.

TITLE III.- The City Court of Yonkers.

TITLE IV. The District Courts of the City of New-York, and the Justices' Courts of the Cities of Albany and Troy.

TITLE V.- The Municipal Court of the City of Rochester.

TITLE I.

The city 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.

ARTICLE FIRST.

Provisions generally applicable to proceedings in the court.

Sec. 8159. Provisions, applying generally to courts of record, subject to certain qualifications.

3160. Certain sections inapplicable to this court; who a non-resident. 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. [Am'd, 1907.] Provisions, applying generally to courts of record, subject to certain qualifications.

Each of the foregoing provisions of this act, which is made, by chapter twenty-two of this act, applicable to the city 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.

New. Am'd by L. 1907, c. 707 (in effect July 22, 1907).

§ 3160. [Am'd, 1896, 1902.] Certain sections not to apply to New York city court; who a non-resident.

Sections 438 and 603, sections 611 to 619, both inclusive, and sections 636, 827 and 1015 of this act do not apply to an action or a special proceeding brought in the city court of the city of New York, or before a justice thereof, or to any proceeding therein. Sections 3268 and 3269 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 3165 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 3268 and 3269 of this act.

1 See 2, subd. 9, foot-note, ante.

2. The provisions of section 1013 of the code of civil procedure are hereby made applicable to and binding upon the city court of the city of New York.

New. Am'd by L. 1896, c. 954; L. 1902, c. 515 (In effect Sept. 1, 1902).

§ 3161. [Am'd, 1902.] Time for service of notices in New York city court.

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 537 of this act; notice of a motion to strike out a pleading, e in a case specified in section 538 of this act; notice of an application for judgment upon the defendant's default, or of the execution 37 of a reference, or writ of inquiry, or of an assessment thereupon, as prescribed in section 1219 of this act; not less than two days. 3. Notice of the justification of bail, not less than two, nor more than ten days.

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 any 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.

6. 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 day's notice is sufficient.

From L. 1872, c. 629, §§ 5, 14; L. 1874, c. 545, § 2; L. 1875, c. 479, §§ 17, 50, and § 51, subd. 10. Am'd by L. 1902, c. 515 (in effect Sept. 1, 1902).

§ 3162. [Am'd, 1902.] Service of notice of trial; filing of note of issue.

Notice of trial of an issue triable at a 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 the trial is given; and it must, in addition to the matter specified in section 977 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 other wise made in article third of this title.

From L. 1574, c. 545, § 2. Am'd by L. 1902, c. 515 (in effect Sept. 1, 1902).

§ 3163. When court may relieve from imprisonment. 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 judg

ment debtor was released, had been returned without his being taken.

From L. 1875, c. 479, § 10.

§ 3164. Money; how paid into the court.

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.

New.

§ 3164a. [Added, 1906.] Fees of clerk.

The clerk of the city court of the city of New York is entitled to receive for the use of the city of New York, for the services performed by him the following fees and none other: For filing a note of issue for the general or equity calendar, three dollars; for entering final judgment in an action, including the filing of the judgment roll, fifty cents: and ten cents in addition for each folio exceeding ten, contained in said judgment. For filing and entering an order directing the change of name, one dollar for each name so changed. For entering any other order or an interlocutory judgment, ten cents for each folio exceeding five. For a certified or other copy of an order. record, or other paper. entered or filed in his office, five cents for each folio. For filing and entering a certificate of satisfaction of a judgment twentyfive cents and for certifying a copy thereof twelve cents. For filing and entering an assignment of a judgment twenty-five cents. and for certifying a copy thereof twelve cents. For filing and entering a release of a judgment twenty-five cents, and for certifying a copy thereof twelve cents. For certifying a transcript of the docket of a judgment twelve cents. For an extract of the minutes of a trial ten cents. For attesting the correctness of the copy of any paper or record on file in his office, ten cents for each folio. For a certificate other than herein described, twenty-five cents. For making and certifying a search for any paper or record, one dollar. For comparing and certifying the printed papers on appeal from an order or judgment taken as prescribed in aticle fourth of title first of chapter twenty of this act, one cent per folio thereof. But where the attorneys for all the parties interested, other than parties in default, or against whom a judg ment or a final order has been taken, and is not appealed from. stipulate in writing that a paper is a copy of any paper whereof a certified copy is required by any provisions of this act, the stipulation takes the place of a certificate, as to the parties so stipulating, and the clerk is not required to certify the same, or entitled to any fees therefor. And the paper so proved by stipulation shall be received by the clerks of all the courts and by the courts and shall be used or filed with the same force and effect as if certified by a clerk of the court.

Added by L. 1906, c. 273 (in effect April 19, 1906), which further provides that "all acts and parts of acts inconsistent with the provisions of this act are hereby repealed."

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