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266 i [ im'd 1893.) A person appointed administra. 1 Dem. 171. Leture leiters are issued to him, must file his official 5 Redi. 353 1, exeunte to the people of the State, and file with the 3 Dem. 633. rogate, the joint anı several bond of himself and two or 13 Civ. Pro. posueties, in a penalty fixed by the surrogate, not less

1 Conn. 491. twice the value of the personal property of which the 128 N. Y. 70. • dent dieil posse sed and of the probable amount to be 85 Hun, 188. veied by reason of any right of action, granted to an autor or adquinistrator, by special provision of law. The ? to be fixed as the amount of the penalıy must be ascerel by the surrogate, by the examination on oath of the icant or any other person, or otherwise, as the surro+ thinks proper. The bond must be conditioned that the iinistrator will faithfully discharge the trust reposed in 1 as such and obey all lawful decrees and orders of the ogate's court touching the administration of the estate sunnitted to him. But where a right of action is granted 1 erecntor or administrator by special provision of law, appears to be impracticable to give a bond sufficient to or the probable amount to be recoverest, the surrogato ; in his di-cretion, accept modified security, and issue urs limited to the prosecution of such action, but re. ining the executor or administrator from a compromiso che action, and the enforcement of any judgment re

red therein, uniil the further order of the surrogate dditional further satisfactory security. In cases where he next of kin to the intestate consent, the penalty of bond need not exceed double the amount of the claims reditors against the estate, presented to the surrogate, suant to a notice to be published twice a week for four ks in the official State paper, and in two newspapers lished in the city of New York, and once a week for four *s in two newspapers published in the county where intestate usually resided, and in the county where he 1, reciting an intention to apply for letters under this vision, and notifying creditors to present their claims to surrogate on or before a day to be fixed in such notice, ch shall be at least tbirty days after the first publication eof; but no bond so given shall be for less than five isand dollirs; and such bond may be increased by er of the surrogate for cause shown. Pending such ap*ion, no temporary administrator shall be appointed ex. con petition of such next of kin.

2665. [Am'd 1892.] The county treasurer of each Quy, except New York ind Kings, by virtue of his office, authority t) collect and take charge of the assets of ry person tlying i estate, amounting to one hundred

county court of the county where the judgment was rendered.

$ 3023. A justice of the peace, whose term of office has expired, may make a transcript of a judgment rendered by him, as prescribed in either of the foregoing sections of this title.

TITLE VII.

Executions.

$ 3024. When justice may issue

execution.
3025, General requisites of exe-

cution.
3026. Execution upon judgment

for money.
3027. Renewal of execntion.
3028. Property exempt from ex.

ecution.
3029. Indorsement of levy;

notice of sale.
3030. Mode of levy and sale.
3031. Return of execution.
3032. Execution against the per-

son; imprisonment of

judgmeni debtor.
3033. When judgment debtor to

be discharged.
3034. Affidavit ; discharge.
3035. Penalty for not discharg.

ing:

$ 3036. Afhdavit a defence to ac

tion for escape. 3037. Discharge not to affect

judgment. 3038. Execution upon judgment

in action for a chattei 3039. Action against constable

for not ruturning execu.

tion. 3040. Constable not to act an

der execution after re

turn day. 3041. Action against constable

for money collected. 3042. Duty of constable whose

term of oflice has ex

pired. 8043. Exccution upon judgment

docketed with county clerk.

$$ 1399, 1403,

$ 3024. At any time within five years after entry of a Consol. Act. judgment, the justice of the peace, who rendered it, being

in office, may issue an execution thereupon, unless it has

been docketed in the county clerk's office. 6 Misc. 633. & 3025. An execution, issued by a justice, must be 81 Huu, 166. directed generally to any constable of the same county. It

must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the name of the justice by whom, the judgment was rendered ; and it must be made returnable to the jus.

tice, within sixty days after its date. 148 X. Y. 592. & 3026. An execution, issued upon a judgment for a

sum of money, must specify, in the body thereof, the sum recovered, and the sum actually due upon the judgment at the date of the execution ; and, except in a case where special provision is otherwise made by law, it must, sub. siantially, require the constable to satisfy the judgment, together with his fees, out of the personal property of the judgment debtor within the county, not exempt from levy and sale by virtue of an execution ; and to bring the money before the justice, by the return day of the execution, to be rendered, by the justice, to the party who recovered the judgment. If the judgment was recovered against a male person, in either of the actions specified in subdivision first

an exe

or second of section two thousand eight hundred and ninety-five of this act; or if an order of airesi was granted, and was executed, in a case specified in subdivision third of that section, the execution must also command the con. stable, if sufficient personal property cannot be found to satisy the judgment, to arrest the judgment debtor, and to convey him to the jail of the county, there to remain until he pays the judgment, or is discharged according to law. If the judgment was rendered in an action to recover a penalty or forfeiture given by a statute of the State, the justice must indorse upon the execution a reference to the statute, as prescribed in section one thousand eight hundred and ninety-seven of this act, with respect to a copy of the summons.

$ 3027. After the return, wholly or partly unsatisfied, of an execution, issued by a justice of the peace, he may, from time to time, within five years after the judgment was rendered, issue a new execution, or renew the former execution. An execution is renewed by a written indorsement thereupon to that effect, signed by the justice, and dated upon the day when it is made. If part of the execution has been satisfied, the indorsement must state the sum re. maining due. Each indorsement renews the execution for sixty days from the date thereof. A justice whose term of office has expired may thus issue or renew cution.

§ 3028. The same personal property is exempt from levy and sale, by virtue of an execution issued by a justice of the peace, which is exempt from levy and sale, by virtue of an execution issued out of the supreme court, and in the like cases, and under the same circumstances, as prescribed in sections one thousand three hundred and eighty nine, one thousand three hundred and ninety, one thousand three hundred and ninety-one, one thousand three hundred and ninety-two, one thousand three hundred and ninety-three, and one thousand three hundred and ninetyfour of this act, and the other special provisions of law, relating to such an exemption.

$ 3029. A constable, who takes personal property into 47 Hun, 438 his custody, by virtue of an execution, must indorse upon he execution the time of levying upon it. lle must immediately post conspicuously, in at least three public places of the city or town, in which the property was taken, written or printed notices, signed by him, describing the property, and specifying the place, within the same city or town, where, and the time, not less than six days after the posting, when, it will be exposed for sale.

$ 3030. The provisions of sections one thousand three hundred and eighty-four, one thousand three hundred and eighty-five, one thousand three hundred and eighty-six, one thousand three hundred and eighty-seven, one thousand four hundred and five, one thousand four hundred and

nine, one thousand four hundred and ten, one thousand four hundred and eleven, one thousand four hundred and twelve, and one thousand four hundred and twenty-eight of this ect, substituting the constable for the sheriff, apply to and govern the levy upon and sale of personal property, by virtue of an execution issued by a justice of the peace; except where a different rule is prescribed in this act.

$ 3031. The constable must return the execution to the justice, and pay to him the amount of the judgment, with interest, or so much thereof as he has collected ; returning the surplus, if any, to the person from whose property it was collected.

$ 3032. For want of sufficient personal property, whereon to levy, the constable must, if the execution requires it, arrest the judgment debier, and convey him to the jail of the county. The keeper of the jail must there. upon keep the judgment debtor in custody, in all respects as if the execution was issued out of the supreme court, until the judgment and the fees of the constable are paid; or until the judgment debtor is thence discharged, in due course of law ; except that if the execution has an indorsement, showing that the judgment was rendered in an action for a penalty or forfeiture, given by a statute of the State, the sheriff shall not admit the judgment debtor to the liber. ties of the jail.

$ 3033. [Am'd 1883.) If a person committed to jail by virtue of an execution issued by a justice of the peace, or out of the municipal court of Butsälo, or by virtue of an execution issued by a county clerk on a transcript of a judg. ment recovered before a justice of the peace, or in the said municipal court of Buffalo, has a family within the state for which he provides, he must be discharged, after te. maining in custody, either with or without being admitted to the jail liberties, thirty days; otherwise he must be dischargeil after so reinaining sixty days.

& 3034. In order to procure a discharge, as prescribed in the last section, the prisoner must make, and deliver to the sheriff or jailor, an affidavit, stating the facts which entitle him thereto, according to the provisions of that section. Upon receiving such an affidavit, the sheriff or jailor must fortli with discharge the prisoner from his custody. He must thereupon deliver the athidavit to the clerk of the county, who must file it in his office, without fee.

§ 3035, A sheriff or jailor, who refuses to discharge the pri-oner, upon receiving such an aflidavit, forfeits twenty-five doliars for each day, during which he detains the prisoner; to be recovered by the latter, in addition to any damages, which he sustains by reason of the false imprisonment.

$ 3036. The receipt of such an affidavit is a defence, to an action brought against the sheriff or jailor, by reason of the prisonei 's disch irge.

21 Misc, 342.

$ 2661 [im'il 1893.] A person appointed administra 1. Dem. 171. tor, leturo leiters are issued to him, must file his official 5 Rede. 353 oa h, execute to the people of the State, and file with the 3 Dem. 63. siirrogate, the joint and several bond of himself and two or 13 Civ. Pro

205. luore sireties, in a penalty fixed by the surrogate, not less

1 Conn. 491. : an twice the value of the personal property of which the 128 N. Y. 70. di cedent diei posse sed and of the probable amount to be 85 Hun, 188. recovered by reason of any right of action, granted to an executor or administrator, by special provision of law. The sum to be fixed as the amount of the penalty must be ascertaine l by the surrogate, by the examination on oath of the pplicant or any other person, or otherwise, as the surrogite thinks proper. The bond must be conditioned that the ndministrator will faithfully discharge the trust reposed in him as such and obey all lawful decrees and orders of the surrogate's court touching the administration of the estate committed to him. But where a right of action is granted to an execntor or administrator by special provision of law, if it appears to be impracticable to give a bond sufficient to cover i he probable amount to be recovered, the surrogate mar, in his discretion, accept moditied security, and issue letter; limited to the prosecution of such action, but re. straining the execntor or administrator from a compromiso of the action, and the enforcement of any judgment recoy red therein, uniil the further order of the surrogate on additional further satisfactory security. In cases where al the next of bin to the intestate consent, the penalty of the boid need not exceed donble the amount of the claims of creditors against the estate, presented to the surrogate, pursuant to a notice to be published twice a week for four weeks in the official State paper, and in two newspapers published in the city of New York, and once a week for four wees in two newspapers published in the county where the intestate usually resided, and in the county where he died, reciiing an intention to apply for letters under this provision, and notifying creditors to present their claims to the surrogate on or before a day to be fixed in such notice, wlsich shall be at least tbirty days after the first publication thereof; but no bond so given shall be for less than five thousand dollırs; and such bond may be increased by order of the surrogate for cause shown. Pending such aplication, no temporary administrator shall be appointed ex. up: on petition of such next of kin.

§ 2665. [ Am’d 1893.] The county treasurer of each county, except New York ind Kings, by virtue of his office, has authority to collect and take charge of the assets of every person dying i'e tate, amounting to one hundred

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