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.

Appeals to and from the general term of the court.

ARTICLE FIRST.

PROVISIONS GENERALLY APPLICABLE TO PROCEEDINGS IN THE COURT.

Sec. 3159. Provisions, applying generally to courts of record, subject to certain qualifications.

3160. Certain sections inapplicable to the court.

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. 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-second of this act, applicable to the marine 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.

L. 1872, ch. 629, 82.

§ 3160. Certain sections inapplicable to the court.→ Sections 438 and 603, sections 611 to 619, both inclusive, and sections 636, 827, 1013, and 1015 of this act do not apply to an action or a special proceeding brought in the marine 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.

New.

§ 3161. Time for service of notices.- 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 under. taking given by the plaintiff, as security for the defend. ant'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, 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 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

*39 How. Pr. 397.

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 the hearing of an appeal, or of any other 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. L. 1872, ch. 629, 235 and 14; L. 1874, ch. 545, 2; L. 1875, ch. 479, § 17 and 50; also, 251, subd. 10.

§ 3162. Service of notice of trial; filing of note of issue. - Notice of trial of an issue triable at a term of the court, or of the hearing of an appeal to the general term of the court, may be given for any day of the terin. 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 trial or hearing is given; and, if it relates to the trial of an issue of fact, or of law, it must, in addition to the matters 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 otherwise made in article third of this title.

New in form; see L. 1874, ch. 545, § 2.

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 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 judg ment; but the judgment creditor may enforce the judgment against property, as if the execution, from

which the judgment debtor was released, had been re. turned without his being taken.

See L. 1875, ch. 479, part of 8 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.

ARTICLE SECOND.

PROVISIONS EXCLUSIVELY APPLICABLE TO THE PROCEED. INGS, OTHER THAN APPEALS, IN AN ORDINARY ACTION.

SEC. 3165. Summons.

3166. Time for service of pleadings, etc.

3167. Enforcement of certain judgments in favor of working women, 3163. Time for non-acceptance and justification of bail, etc.

3169. Proof necessary to obtain warrant of attachment.

3170. Service of summons without the city, or by publication.

3171. Commission to take testimony.

3172. Court may refer question arising upon a motion.

3173. Time for filing decision upon a trial by the court. Id.; when sufficient.

3174. Counterclaims.

3175. Perishable property may be sold.

3176. Portion of verdict, etc., may be remitted.

§ 3165. Summons.-The summons, in an action brought in the court, must state that the time, within which the defendant must serve a copy of his answer, is six days after the service thereof, exclusive of the day of service; except in one of the following

cases:

1. A justice of the court may, upon satisfactory proof, by affidavit, that either the plaintiff or the defendant resides without the city of New-York; or, where there are two or more plaintiffs, or two or more defendants, that all the plaintiffs or all the defendants reside without that city, direct, by an order, that the defendant be summoned to answer within a shorter time, specified therein, not less than two days after the service of the summons, exclusive of the day of service; whereupon the summons must correspond to the order. The order must be indorsed upon or annexed to the summons; and a copy thereof must be delivered with a copy of the The justice may, in his discretion, as a con

summons.

dition of granting the order, require the plaintiff to give an undertaking, with one or more sureties, to the effect that the plaintiff will pay any judgment which may be rendered against him in the action, not exceeding a sum specified in the undertaking, which must be at least two hundred dollars.

2. Where an order, directing service of the summons without the city of New-York, or by publication, is granted, the summons must state that the time, within which the defendant must serve a copy of his answer, is ten days after service thereof, exclusive of the day of service. If a summons, requiring the defendant to answer within a shorter time, has been issued, as prescribed in this section, before an order specified in this subdivision is granted, the justice granting such an order may direct that the summons be amended accordingly, and thereupon the summons published, or served without that city, pursuant to the order, must correctly state the time.

L. 1872, ch. 29, 5; L. 1874, ch. 545, 1. Potts v. Compton, McAdam Marine Ct. Prac. App. 4.

§ 3166. Time for service of pleadings, etc. - The time, within which a defendant in a case specified in section 479 of this act must demand a copy of the com plaint, and the time within which the plaintiff must serve the same, after a demand thereof, as prescribed in that section, and the time, within which a copy of a pleading, subsequent to the complaint, must be served, after the service of a copy of the preceding pleading, is the same number of days, as stated in the summons, within which the defendant is required to serve a copy of his answer, after service of the summons. But, except as otherwise prescribed in section 3185 of this act, a defendant, arrested before answer, has ten days after the arrest, within which to demand a copy of the com plaint or to serve a copy of his answer, as the case requires; and judgment must be stayed accordingly.

See note to last section.

3167. Enforcement of certain judgments in favor of working women. Section 3221 of this act applies to an action brought in the court, and to the judgment and execution against the person and property of the judgment debtor.

L. 1878, ch. 33 and 175.