tiff recover. But where the judgment is reversed because the evidence at the trial was insufficient to sustain it, and it is not perfectly clear that the deficiency cannot be supplied. a new trial should be awarded. In Harper agt. Hall, 30 How., 126, N. Y. Common Pleas, November, 1865, CARDOZO, J.. it was decided, that the general term of the marine court has power and authority on motion, to correct the entry of its judgments and decisions, the same as that power is possessed by the general term of the supreme court. Consequently, where the plaintiff' moved and obtained an order to dismiss the defendant's appeal to the general term for want of prosecution; but erroneously made the order provide that the judgment appealed from be affirmed with costs; held, that the general term had the power to correct such error, so as to make the order conform to the real decision of the court. What is the result of the decisions under this section? The answers to the respective questions from 1 to 41 inclusive, are the several sections of the different statutes in relation to the marine court, passed since the Code, to wit Passed April 17, 1852; July 13, 1853; July 21, 1853; April 7, 1857; April 17, 1858; April 14, 1860; April 24, 1862, and April 14, 1865, which are inserted from the several acts under said questions. Thus, the whole of the laws affecting this court since and including the Code, are presented in consecutive order. 1. (42 Q.) The marine court has but a special and limited jurisdiction, both as to cases and parties; and whoever sets up its authority, in a case instituted by himself, must show that the case was one of which the court had complete jurisdiction. This court is not a court of record for the purpose of authorizing an appearance by an attorney at law in a cause. 2. (43 Q.) The marine court, although for some purposes a court of record, has no power to appoint a crier to be paid by the city chamberlain under the acts of May 14, 1840 and April 11, 1842. 3. (44 Q.) The section of the act (2 R. S. 1813) providing for security in justices courts in the city of New York, in case of non-resident plaintiffs, applies also to the marine court, and by section 32 of the act of 1831, is made to relate to a short summons, issued instead of a warrant of arrest. The security being given, and received by the marine court, confers jurisdiction, in a suit by non-resident plaintiffs. And the surety is not required to be a resident, and his qualifications are not prescribed. 4. (45 Q.) The marine court has jurisdiction of the actions named in section 1 chapter 617 of the laws of 1853, in those cases only in which the damages claimed do not exceed $500. And when such an action is brought in a court of record of the city of New York, and the damages claimed do not exceed $500, the plaintiff can only recover marine court But where the damages claimed exceed $500, in an action brought in such court of record, the costs will be regulated by the Code. costs. 5. (46 Q.) The marine court has no admiralty jurisdiction. But it has jurisdiction of an action brought against a party as the owner of a vessel, for services performed therein during a voyage. Such an action is not a proceeding in rem to enforce against the vessel a lien for seaman's wages. 6. The provision in the Code (§ 175) authorizing the plaintiff, when ignorant of the name of a defendant, to designate him by any name, does not apply to the marine court. The statutes relating to the marine court do not provide for the commencement of a suit against a party by a fictitious name. 7. (47 Q.) A summons issued from the marine court, as well as from a justice's court, must state the cause of action. For instance, a summons requiring the defendant to appear to answer the complaint of A. B., to his damage one hundred dollars or under," can give the court no authority to entertain jurisdiction or proceed in the suit, and is void. 8. (48 Q.) If a party to an action in the marine court, shows by a proper affidavit, that one of the judges of that court is a material witness for him, the cause should be tried by one of the other judges. 9. (49 Q.) A judgment, in the marine court, is entered by the direction of a single justice, whether it be entered by default or on trial before the justice with a jury, or by bim alone without a jury. A justice of the peace, (and it seems also the marine court), must enter judgment upon the verdict of a jury immediately upon its being rendered; and if he omit to do so until the next day, no judgment can be given by him. And the marine court must render judgment within four days after a cause is finally submitted (without a jury), or it loses jurisdiction; and a judgment rendered after the lapse of the four days will be reversed. 10. (50 Q.) Where an inquest taken in the marine court has been set aside, and the cause placed on the calendar, and the defendant fails to appear at the trial: the justice has no power, without taking any proof, to order that the former judgment shall stand— he must take plaintiff's proofs and render a fresh judgment. A judgment once vacated is always vacated, and the defendant stands, in reference thereto, as if no action had been prosecuted against him. 11. (51 Q.) The marine court has no jurisdiction to issue a final process against the person of a defendant. An execution upon justices' judgments can only issue against goods and chattels. 12. (52 Q.) The provisions of the Code, respecting parties to actions, apply to the marine court and to justices' courts. Therefore, where the notice to close a mechanic's lien is entitled in the names of both owner and contractor as defendants, but is served upon the former only, the marine court has the power to summon the contractor as a party, and should exercise it, when the claim is for money alleged to be due from him to a subcontractor. 13. (53 Q.) Where judgment for the plaintiff is rendered by the marine court, in the absence of the defendant, and the plaintiff and his witnesses have left court, the justice has no right to grant an application of the defendant for permission to produce testimony in support of his defense. The marine court, prior to the act of 1853, could not open judgments rendered by them, unless the same were obtained by default. The act of 1859, giving the comptroller of the city of New York power to take all necessary means to open collusive and fraudulent judgments against the city, does not give to the marine court such power. 14. (54 Q.) The marine court has authority to dismiss a complaint, in the same manner and to the like effect as all courts of record could grant a non-suit under the old system. 15. (55 Q.) The marine court has no jurisdiction of an action against executors and administrators, or upon their official bonds given for the faithful performance of their duty. 16. (56 Q.) A writ of prohibition will not issue to the marine court, to remedy an alleged difficulty, that the debt for which the plaintiff was entitled to sue was larger than the jurisdiction of the court permitted, where the plaintiff remitted the excess, upon the rendition of judgment. 17. (57 Q.) Attachments issued by the marine court, are only to be issued under the provisions of the non-imprisonment act of 1831, or the amendment of 1842. Such an attachment is process for the commencement of an action. When personal service of the attachment has been made, the suit is effectually commenced without anything more. Where the attachment is against a non-resident, the attachment must be served in not less than two, nor more than four days before the appearance day, or the justice has no jurisdiction. Where the attachment is under the 34th section of the non-imprisonment act of 1831, it is an open and doubtful question, what is the rule for its test, return and mode of service. The attachment must be served personally if the defendant can be found in the county. If not served personally, a summons must be issued and returned either personally served, or that the defendaut cannot be found after diligent inquiry. 18. The acts of 1852 and 1853 extending the jurisdiction of this court so as to permit a recovery to the amount of $500, extended also the power of the court to issue an attachment against the property of a non-resident, when the amount claimed does not exceed that sum. Such an attachment must be issued under the seal of the court. The court may permit an amendment in a constable's return of the service of an attachment and inventory. 19. A bond to discharge an attachment should be executed to the constable holding the attachment. Such a bond is not a voluntary one, but is taken colore officii, and if not given in the statute form is void. An assignment of the bond is good without a seal. 20. An affidavit for an attachment under section 34 of the non-imprisonment act, upon information and belief merely, that the defendant is an absconding or fraudulent debtor, is insufficient. 21. By appearing to move for the discharge of an attachment merely, does not preclude the defendant, on appeal from the right to object to the judgment. 22. (58 Q.) The defendant by pleading to the merits in this court, waives all defects and irregularities in the summons, although an objection may have been made thereto prior to joining issue, and reserved to be passed upon at the time of trial. 23. (59 Q.) After the commencement of a trial in this court, the justice has no power to order an adjournment, except upon the consent of both parties, or for the reason that there is not time to conclude the trial at one session. 24. This court loses jurisdiction of a cause by adjourning it without the consent of parties, or in their absence for a period not allowed by law. 25. It is error for a justice to receive a plea to the merits after a trial has commenced before a jury, where the defendant did not appear on the return day of the summons. 26. This court may exercise a discretion in the adjournment of causes on the ground of the want of a material witness. A defendant is entitled as a matter of right to one adjournment only on that ground. A demand for a jury must be made before an adjournment after joining issue. 27. (60 Q.) Pleadings in the marine and district or justices' courts are not necessarily so detailed and precise as required in other courts. Matters of substance, stated in general terms, and aided by a bill of particulars which fully apprise the defendant of what is claimed will be considered sufficient. The provision allowing a denial of knowledge sufficient to form a belief relates exclusively to courts of record. The provision as to admissions of allegations in the complaint, for want of a denial in the answer, applies to the marine and justices' courts. 28. In this court a plaintiff may present his cause of action in as many aspects as he can if they are not inconsistent. 29. (61 Q.) The appellate court will not notice an objection then first made, to testimony as irrelevent, where it was not objected to below. 30. On appeal the common pleas will look only at the return of the justice and will not review matters resting in discretion in the court below, or questions of practice which do not affect substantial rights. 31. (62 Q.) The appellate court will not set aside a judgment taken against the defendant by default, in this court, where it does not appear that manifest injustice has been done; and where the defendant's excuse is insufficient. 32. (63 Q.) The court of common pleas have no discretion on reversing a judgment of this court, to reverse it without costs. 33. (61 Q.) The parties may voluntarily submit a cause in this court. 34. (65 Q.) The marine court is not a "court of justice of the peace," within the meaning of the Code. 35. (66 Q.) The common pleas has control over the judgments of this court after transcript filed, and can allow set-offs between such judgments. But they will not examine, upon a motion, the regularity of the proceedings upon which a judgment has been obtained in the marine court. 36. An order of the marine court setting aside a judgment must be actually entered before a motion can be made in the common pleas to set aside an execution issued upon it. 37. The common pleas cannot open a default taken in the marine court, where the defendant failed to appear by reason of relying upon a promise from the adverse party. Such an application must be made to the marine court. 38. The rule as to the issuing of executions upon judgments in this court, after tran script filed, is that applicable to the common pleas. 39. (67 Q.) No undertaking is necessary on an appeal taken from a single judge to the general term. 40. (68 Q.) The costs allowed on appeals from a single justice to the general term are the same as allowed on appeals from a justice's court to the common pleas. 41. (69 Q.) The appellant has ten days, in all cases, after written notice of the entry of judgment, to prepare a case or exceptions. 42. (70 Q.) The marine court has no equity jurisdiction, except such as the mechanic's lien law of 1851 confers upon it. It has no power, under that law, to order the premises to be applied in satisfaction of the lien, unless the lien is established under the statute. 43. (71 Q.) A judgment of this court, rendered solely upon a statement of facts submitted by the attorneys of the respective parties, cannot be sustained. 44. (72 Q) This court may grant a non-suit at the trial, on the plaintiff's election, by reason of incompetent or insufficient evidence, and when the cause is submitted to the jury, but before verdict. After the cause is submitted to the justice for his decision, and he reserves his decision, a non-suit cannot be granted. 45. (73 Q.) A defendant, by pleading to the merits, in this court, waives an objection that he was improperly sued by a short summons, to the form of the summons, the manner of taking security, and the sufficiency of the constable's return, and all objections to the process. And these objections, in such cases, cannot be reviewed on appeal. 46. An objection to the manner of serving the summons in this court is waived by pleading to the merits; so, also, a defect in the process is waived in like manner. 47. (74 Q.) Where, in an action in this court, title to real estate appears by the pleadings, it is deprived of jurisdiction. 48. (75 Q.) The appellate court, pending an appeal, may appoint a guardian for an infant party. 49. (76 Q.) This court must demand the authority of an attorney to appear for a party, if at all, at the time of the appearance. 50. (77 Q.) The provision of the Revised Statutes allowing the amendment of process and pleadings continue in force with the Code and apply to this court. And where a name is inserted in process by mistake, this court has power to strike it out. So, where a summons was issued with only the given name of the plaintiff, the clerk, under authority from the court, could amend it. 51. Permitting the plaintiff to amend the summons, by changing the cause of action, is a matter of discretion, and will not be reviewed on appeal. 52. (78 Q.) The plaintiff must prove his case, in an action on contract, though the defendant does not appear. 53. (79 Q.) This court has no power, directly nor indirectly, to extend the time for appealing to the general term beyond the thirty days applicable to the supreme court. 54. (80 Q.) The clerk of this court has no power to enter judgment. The court must give the judgment. 55. (81 Q.) The general term of this court, on appeal from a judgment, has no power to modify it by increasing the amount. It may order a new trial where the party refuses to allow the proper amount. 56. A new trial should be awarded where the judgment is reversed for errors occurring upon the trial, or for insufficiency of proof. And where it appears, or may be reasonably presumed from the case, that additional facts might be established sufficient to charge the appellant with liability, on reversing the judgment in favor of the plaintiff, a new trial should be awarded. 57. The general term of this court has power, on motion, to correct the entry of its judgments and decisions, the same as the supreme court at general term has to correct its decisions. CHAPTER II. The Justices' Courts in the City of New York. § 66. Their jurisdiction The assistant justices' courts in the city of New York shall hereafter be styled the justices' courts in the city of New York, and shall have jurisdiction in the following cases: 1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections fifty-three and fiftyfour. 2. In an action upon the charter or a by-law of the corporation of the city of New York, where the penalty or forfeiture shall not exceed one hundred dollars. In 1849 this section was called section 66, and was changed as it reads above. $59. [1848.] The assistant justices' courts in the city of New York shall have jurisdiction in the following cases, and no other: 1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 46 and 47; such jurisdiction, however, to be limited to cases where the sum due or claimed, or the judgment confessed, shall not exceed fifty dollars. 2. In an action upon the charter or a by-law of the corporation of the city of New York, where the penalty or forfeiture shall not exceed fifty dollars, Questions. 1. Q. By what statute were clerks of these courts authorized to take affidavits? 2. Q. By what statute were these courts styled district courts? |