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$ 1259, Con. sol. Act.

then in session at chambers; in which case it must be made immediately after the opening of the court, on the first day thereafter, when it is there in session. If the de. fendant has given bail, the undertaking of the bail must be returned, to be delivered to the plaintiff when the court so directs.

$3185. Unless both parties sooner appear, the court must wait one hour after the return; or, if the defendant has given bail, one hour after the opening of the court. As soon after the parties appear, or after the expiration of the hour, as the business upon which the court is then engaged will permit, the court must take up the cause. If the plaintiff does not then appear, a judgment dismissing the complaint, with costs, must be rendered. If the defendant does not then attend in person, the plaintiff must then make his complaint, and the defendant's default must be entered. If the plaintiff appears and the defendant at. tends in person, the pleadings must then be made, and is. sue must be joined. The pleadings may be oral or written ; if they are oral, the clerk must enter the substance thereof in the minutes. If either party desires a trial by a jury, he must demand the same, at the time of the joinder of issue; otherwise the issue must be tried by the court, without a jury.

$ 3186. Where a trial by jury is duly demanded, the court at chambers must direct the issue to be tried, at a trial term, upon such notice as it deems proper, or without notice, it may also direct that the action have a preference upon the day calendar, either generalıy or for a particular day; and it may give such direction as it deems proper, with respect to filing a note of issue. Where a trial by jury is not duly demanded, or where the defendant is in default, the evidence must then, or at such subsequent time, either at chambers or at a trial term or special term, as the court at chambers appoints, be given ; and thereupon final judg. ment must be rendered. But the issue must be appointed to be tried, within six days after the joinder thereof, unless both parties assent to a longer time; or a trial by jury is demanded, and there is no term of the court, at which it can be had, within that time. The trial cannot be adjourned, without the consent of both parties, beyond three calendar months from the joinder of issue.

$ 3187. This article does not prevent the plaintiff from commencing, and conducting in the ordinary manner, an action, for a cause specified in subdivision second of section three hundred and seventeen of this act.

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ARTICLE FOURTH.
APPEALS TO AND FROM THE GENERAL TERM OF THE

COURT

Conso!. Act

8 3188. Appeal to g nekil term, $ 3193. Id ; within what tiine ; from the judgment.

where head. 3189. Id :f com al order.

3194. Id ; determination upon 3190. Time t appeal from order;

appeil. bow enforced. proceedings thereupon.

Id:where new trial was 313. lppeil iron general term

properly granted.
t) Nupreme court; in what 3195. Id.; appeal therefrom to
cases.

Court of appeals. 3192 I.; proceedings regu.

lated. $ 3188. [Am'ul 1895, amendment to take efject Januury 1,

S$ 1266, 1276, 1836.) An appeal to the general term of the cont, may be taken from a final jndgment rendered therein, in a case where an appeal may be taken to the appellate division of the supreme court, from a final judgment rendered therein as prescribed in section thirteen hundred and fortysix of this act.

8 3189, [Am'd 189, amendment to take effect January 1, $ 1267, Con. 1896.) An appeal, to the general term of the court, may sol. Act. also be taken from an interlocutory judgment rendered, or an order made, at a special term or a trial term thereof, or an order made by a judge thereof, out of court, in a case, where an appeal may be taken to the appellate division of the supreme court, from an interlocutory judgment rendered, or an order made, in like manner, as prescribed in sections thirteen hundred and forty-seven, thirteen hundred and forty-eight and thirteen hundred and forty-nine of this act.

$ 3190. An appeal authorized by the last section, must be $ 1268, Con. taken within ten days after service of a copy of the judg. sol. Act.

7 Misc. 401. ment or order appealed from, and a written notice of the entry thereof. In every other respect, titles first and fourth of chapter twelve of this act, apply to and govern an appeal, taken as prescribed in either of the last two sections.

$ 3191. [Am'd 1882, 1895, amendment to take effect January $ 1269, Con1, 1896.] Au appeal may be taken to the supreme court sol. Act. from an actual determination made by the city court of the

13 Daly, 179.

29 Abb. N.c, city of Ne:v York at a general term thereof in either of the 431. following (ases:

7 Misc. 391. 1. Where a final judgment has been rendered upon an appeal taken to the general term.

2. Where an order bas been made granting a new trial. But an appeal cannot be taken from an order granting a new trial upon a case or exceptions, unless the notice of appeal con'ains an absent on the part of the appellant that if the order is affirmed judgment absolute may be rendered against the appellant.

3. When an order has been made which grants, refuseg, continues or modifies a provisional remedy, or where it in. volves some part of the merits, or where is affects a substantial right, or where, in effect, it determines the action ind prevents a judgment from which an appeal might be

6 1270, Con-
sol. Act.
7 Misc. 694.

& 1271, Con-
sol. Act.
7 Misc. 391.

S$ 3192-3198 taken. Sach appeals shall be heard in such manner ani by such justice r justices as the appellate division of the supreme court in the first department shall direct.

$ 3192. Titles first and third of chapter twelfth of this nct apply to and govern an appeal, taken us prescribe i in the last section, except as otherwise expressly prescribed iu the next two sections.

$ 3193. [Am'd 1895, amendment to take ofe i January 1, 1896.] An appeal authorized by the last section, in ust be taken within twenty days after the service of a copy of the judgment or order appealed from and a written notice of the entry thereof.

$ 3194. The judgment or order of the appellate court must be remitted to the court below, to be enforce i according to law. Upon an app al fronı an order granti' g a new trial, on a case or exceptions, if the appellate court determines that no error was committed in granting the new trial, it must render judgment absolute upon the right of the appellant; and thereupon an assessment of dam ges, or any other proceeding, requisite to render the judgment effectual, may be had in the marine court.

§ 3195. [Repealed 1895, takes effect January 1, 1896.)

$ 1273, Conpol. Act.

to

TITLE II.
The mayor's court of the city of Hudson, and the recorder's

courts of the cities of Utica and Oswego.
§ 3196. Civil

jurisdiction pre- $ 3199 Power of supreme court, scribed.

in actions, etc., so trans 8197. Certain pending actions,

ferred. etc., transferred to su. 3200. Proceedings in case of preme court.

judge's disability. 3108. Id; certain papers, etc., 3201. Services of subpænas.

be transmitted to 8202. Effect of this title limited.

county clerk. $ 3196. The civil jurisdiction of the mayor's court of the city of Hudson, the recorder's court of the city of Utica, and the recorder's court of the city of Oswego, extends only to an action whereof jurisdiction is expressly conferred upon the court, by a provision of a statute incor. porating, or otherwise specially relating to the government of, the city wherein the court is located.

$ 3197. Every civil action, now pending in either of those courts, other than an action specified in the last section, is hereby transferred to the supreme court; and the subsequent proceedings therein, before and after the judg. ment, must be the same, as if the action had been com. menced in the supreme court.

$ 3198. All judgment-rolls, and other records, and all books and papers, relating exclusively to civil actions, other than an action specified in the last section but one, now remaining in either of those courts, must be delivered by the

clerk thereof, or, if there is no clerk, by the judge or other officer, having the custody thereof, to the clerk of the county in which the court is located, to be preserved among the records of his office. The expense of so doing is & county charge.

$3199. The supreme court may review, enforce, vacate, or amend a final judgment heretofore rendered by either of those courts, in a civil action, other than an action specified in section three thousand one hundred and ninety-six of this act, with like power and effect, as the court in which it was commenced might have só done, if this act had not been passed.

$ 3200. The county court of the county in which either of those courts is located, may, by an order, remove to itself an action of which either of those courts has jurisdiction, as prescribed in section three thousand one hun. dred and ninety-six of this act, upon proof, by affidavit, that the judge thereof is, for any cause, incapable of acting, either generally or in the particular action. Sections three hundred and forty-four, three hundred and forty-five and three hundred and forty-six of this act apply to such an order of removal, and to the proceedings subsequent therete. The proceedings subsequent to the order are the same, as in an action brought in the county court, except that costs must be awarded, as if the action had remained in the court from which it was removed.

$ 3201. A subpæna, issued out of either of those courts, may be served upon a witness, at any place within the State. A warrant to apprehend a witness, for a failure to obey such a subpana, may be directed to the sheriff of the county where the court is located, and executed by him within any county of the State. The sheriff is subject to the same liability, for a failure to serve or return it, as if it was issued out of the supreme court.

$3202. This title does not affect any provision of law conferring upon a judge, or upon the judges, of either of those courts, jurisdiction, power or authority, in an action brought in another court, or in a special proceeding.

TITLE III.

The city court of Yonkers. * § 3203. Jurisdiction in civil ac- $ 3206. This title does not affect

jarisdiction 3204. Last section qualified.

court, etc., in special 3205. Summons, where served.

proceedings. $ 3203. The jurisdiction of the city court of Yonkers extends to the following civil actions only:

1. An action against a natural person, or against a foreign or domestic corporation, wherein the complaint demands judgment for a sum of money only, or to recover one or more chattels, with or without damages for the taking, withholding, or detention thereof.

*See L. 1893, c. 416, extending iurisdiction of this court. Schenectady, city court of, escablished by L. 1893, c. 631.

tions.

of

the

2. An action to foreclose or enforce a lien, upon real property in the city of Yonkers, created, as prescribed by statute, in favor of a person who has performed labor, or furnished materials to be used in erecting, altering, or repairing a building, building lot, or appurtenance thereto, including fences, sidewalks, paving, wells, fountains, tisliponds, ornamental and fruit trees, and every other improve ment to a building or building lot.

3. An action to foreclose or enforce a lien, for a sum pot exceeding one thousand dollars, exclusive of interest, upon one or more chattels,

& 3204. [Am'd 1888.] The jurisdiction conferred by the last section is subject to the following limitations and regulations:

i. In an action wherein the complaint demands judgment for a sum of money only, the sum for which judgment is rendered in favor of the plaintiff cannot exceed one thousand dollars; exclusive of interest and costs as taxed; except where it is brought upon a bond or undertaking given in an action or special proceeding in the same court, or before the city judge. Where the action is brought upon a bond or other contract, the judgment must be for the sum actually due, without regard to a penalty therein contained ; and where the money is payable in installments, successive actions may be brought for the installments as they become due.

2. In an action to recover one or more chattels, a judg. ment cannot be rendered in favor of the plaintiff for a chattel or chattels, the agregate value of which exceeds one thousand dollars.

8. The court has not jurisdiction of an action against an executor or administrator in his representative capacity.

4. The court has not jurisdiction of any action, unless one of the parties thereto resides in the city of Yonkers, or in a town of Westchester County, adjoining that city; or a warrant of attachment is granted to accompany the summons, and levied upon property of the defendant within that city ; or the action is brought to recover one or more statutory penalties by the city of Yonkers, or one of its officers or boards of commissioners. Such warrant of attachment must be granted and subsequent proceedings taken in accordance with the provisions and requirements herein relating to attachments in courts of justices of the peace.

3205. The summons, in an action brought in the court, may be served at any place within the county of Westchester, but not elsewhere.

& 3206. This title does not affect any provision of law, conferring upon the court, or upon the city judge of Yonkers, jurisdiction, power, or authority, in a special proceeding; or conferring upon the city judge of Yonkers power or authority, in an action brought in another court.

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