and distributive shares paid to and securities deposited with the county treasurer, as prescribed in this section; except that the surrogate's court exercises with respect thereto, or with respect to a security in which any of the money has been invested, or upon which it has been loaned, the power and authority conferred upon the supreme court by section seven hundred and forty-seven of this act. § 2838, subd. 1. Where an infant, who resides without the state and within the United States, is entitled to property within the state, or to maintain an action in any court thereof, a general guardian of his property, who has been appointed by a court of competent jurisdiction, within the state or territory where the ward resides, and has there given security, in at least twice the value of the personal property, and of the rents and profits of the real property, of the ward, may present, to the surrogate's court having jurisdiction, a written petition, duly verified, setting forth the facts, and praying for ancillary letters of guardianship accordingly. The petition must be accompanied with exemplified copies of the records and other papers, showing that he has been so appointed, and has given the security required in this section, which must be authenticated in the mode prescribed in section forty-five of the decedent estate law, for the authentication of records and papers, upon an application for ancillary letters testamentary, or ancillary letters of administration. § 2863. No jurisdiction in certain cases. But a justice of the peace cannot take cognizance of a civil action, in either of the following cases: 1. Where the people of the state are a party, except for one or more fines or penalties not exceeding two hundred dollars. 2. Where the title to real property comes in question, as prescribed in title third of this chapter. 3. Where the action is to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution, or where it is brought under sections eighteen hundred and thirty seven, nineteen hundred and two, or nineteen hundred and sixty-nine of this act or sections twenty-eight or one hundred and one of the decedent estate law." 4. Where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars. 75 5. Where the action is brought against an executor or administrator as such, except where the amount of the claim is less. 74 L. 1909, ch. 18. Former reference was to art. 7, tit. 3, ch. 18 of the Code of Civil Procedure. 75 L. 1909, ch. 18. Former references were also to §§ 1843, 1868 of the Code of Civil Procedure. than the sum of fifty dollars, and the claim has been duly presented to the executor or administrator and rejected by him. § 2889. When constable or law partner or clerk of justice may not act as attorney. Subject to the provisions of sections two hundred and seventy-one and two hundred and seventy-two of the penal law,76 any person, other than the constable who served the summons or the venire, or the law partner or clerk of the justice, may be the attorney for a party to an action before a justice of the peace. $2990. When jury trial may be demanded. At the time when an issue of fact is joined either party may demand a trial by jury, and unless so demanded at the joining of issue a jury trial is waived. The party demanding a trial by jury shall thereupon pay to the justice the statutory fees for the attendance of each person to be summoned and for the jurors to serve upon the trial, and also the fees to which the constable is entitled for notifying the persons to be drawn as jurors. The fees so deposited shall be delivered by the justice to the constable serving the venire, and by him shall be paid out as required by law. In default of a deposit as aforesaid the justice shall proceed as if no demand for trial by jury had been made. And the town clerk of every town in this state shall deliver to each of the justices of the peace in his town a certified copy of the list filed with him, in pursuance of section five hundred and five of the judiciary law." and he shall also deliver to each of said justices a certified copy of any such list hereafter filed with him, within ten days after the same shall be filed. The town clerk is entitled to a fee of one dollar for each copy of said list so delivered. Any town clerk who shall neglect to deliver a copy of the list to each of the justices of the town within the time above prescribed, shall forfeit ten dollars for each failure, to be sued for and recovered by the overseers of the poor of said town for the use of the poor of said town. § 2991. Drawing jurors. When a trial by jury is duly demanded, the justice must forthwith openly draw twelve ballots from a box or other receptacle containing the names of the persons who are returned as jurors of the town to the courts of record of the county upon the last list thereof received by him from the town clerk as jurors to attend and try said cause, on a day to which the cause shall then be adjourned by him, not more than eight days from the joining of issue, unless the parties consent to a longer adjournment, which consent shall be entered in the justice's minutes. The ballots shall be of the same description as those 76 L. 1909, ch. 88. Former references were to §§ 63, 64 of the Code of Civil Procedure. 77 L. 1909, ch. 35. Former reference was to § 1037 of the Code of Civil Procedure. prescribed in section twenty-nine hundred and ninety-four of this act, but they may be, or may previously have been prepared by a justice. If a person whose name is thus drawn in the judg ment of the justice resides more than three miles from the place of trial the justice may set aside such juror and he may excuse any juror who comes within the provisions of section five hundred and forty-four of the judiciary law,78 and in either case draw another ballot, and continue to do so until twelve are drawn. After the adjournment of the co...t, at which a jury trial has been had, the justice must deposit the ballots containing the names of those who attended and served, in another box kept by him. The ballots containing the names of those who did not appear and serve must be returned by the justice to the box from which they were taken. If at the time of drawing jurors for the court there is not a sufficient number of ballots remaining in the original box, the justice upon drawing all the ballots therein, must draw the necessary number from the second box containing the names of those jurors who have before served, as in this section prescribed, and must continue to draw from that box until a new list of jurors is delivered to him by said town clerk. § 3075, subd. 2. Where the justice is disqualified, for a reason specified in section fifteen of the judiciary law.79 § 3158. 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 four hundred and four hundred and one of the judiciary law 80 apply to a mandate delivered to a sheriff, as prescribed in this section. § 3253. Additional allowance to either party in difficult and certain other cases. In an action brought to foreclose a mortgage upon real property or for the partition of real property or in a difficult and extraordinary case (where a defense has been interposed in an action), or, except in the first and second judicial districts, in a special proceeding by certiorari 78 L. 1909, ch. 35. Former reference was to § 1033 of the Code of Civil Procedure. Former reference was to § 46 of the Code of Civil 79 L. 1909, ch. 35. Procedure. 80 L. 1909, ch. 35. Civil Procedure. Former references were to §§ 104-106 of the Code of to review an assessment under article thirteen of the tax law,81 and the acts amending the same, the court may also, in its discretion, award to any party a further sum, as follows: 1. In an action to foreclose a mortgage, a sum not exceeding two and one-half per centum upon the sum due, or claimed to be due upon the mortgage, nor the aggregate sum of two hundred dollars. 2. In any action, or special proceeding, specified in this section, where a defense has been interposed, or in an action for the partition of real property a sum not exceeding five per centum upon the sum recovered, or claimed or the value of the subject-matter involved. § 3320. Receiver's commissions; cost of bonds; trustees' commissions. A receiver, except as otherwise specially prescribed by statute, is entitled, in addition to his necessary expenses, to such commissions, not exceeding five per centum upon the sums received and disbursed by him, as the court by which, or the judge by whom, he is appointed allows. But if in any case the commissions of a temporary or permanent receiver, so computed, shall not amount to one hundred dollars, said court or judge may, in its or his discretion, allow said recciver such a sum, not exceeding one hundred dollars, for his commissions as shall be commensurate with the services rendered by said receiver. Any receiver, assignee, guardian, trustee, committee, executor, administrator or person appointed under section one hundred and eleven of the real property laws2 or under section twenty of the personal property laws required by law to give a bond as such may include as a part of his necessary expenses, such reasonable sum, not exceeding one per centum per annum upon the amount of such bond paid his surety thereon, as such court or judge allows. A trustee of an express trust is entitled, and two or more trustees of such a trust are entitled, to be apportioned between or among them according to the services rendered by them respectively, as compensation for services as such, over and above expenses, to commissions as follows: For receiving and paying out all sums of principal not exceeding one thousand dollars, at the rate of five per centum. For receiving and paying out any additional sums of principal not exceeding ten thousand dollars, at the rate of two and one-half per centum. For receiving and paying out all sums of principal above eleven thousand dollars, at Number of article (formerly 11) changed to conform to 81 L. 1909, ch. 62. present law. 82 L. 1909, ch. 52. to present law. 83 L. 1909, ch. 45. present law. Number of section (formerly 91) changed to conform the rate of one per centum. And for receiving and paying out income in each year, at the like rates. In all cases a just and reasonable allowance must be made for the necessary expenses actually paid by such trustee or trustees. If the value of the principal of the trust estate or fund equals or exceeds one hundred thousand dollars, each such trustee is entitled to the full commission on principal, and on income for each year, to which a sole trustee is entitled, unless the trustees are more than three, in which case three full commissions at the rates aforesaid must be apportioned between or among them according to the services rendered by them respectively. If the instrument creating the trust provides specific compensation for the services of the trustee or trustees, no other compensation for such services shall be allowed unless the trustee or trustees shall, before receiving any compensation for such services, by a written instrument duly acknowledged, renounce such specific compensation. § 3343, subd. 14. A "judgment creditor's action" is an action brought as prescribed in article first of title fourth of chapter fifteenth of this act, or any other action, brought by a judg ment creditor to aid the collection of a judgment for a sum of money, or directing the payment of a sum of money. § 3347, subd. 1.85 In chapter second, the prisoners referred to are civil prisoners only, except that article third of title second thereof applies to all prisoners, civil or criminal. § 3347, subd. 5.86 Chapter seventh, excluding articles first and second of title fourth thereof, applies only to an action, in one of the courts specified in subdivision fourth of this section, in which an application for an order of arrest, an injunction order, or a warrant of attachment against property, is made, on or after the first day of September, eighteen hundred and seventy-seven. Articles first and second of title fourth of that chapter apply only to proceedings taken, in one of those courts, on or after that date. § 3347, subd. 7. In chapter tenth, titles first, second and sixth and article second of title fifth apply only to proceedings taken on or after the first day of September, eighteen hundred and seventy-seven, in one of the courts specified in subdivision fourth of this section. Article third87 of title third 84 Formerly read "sixteenth." Changed to correct error. 85 Former reference to § 122 of the Code of Civil Procedure omitted as now constituting 347 of the Prison Law (L. 1909, ch. 47) which applies to both civil and criminal prisoners. $6 Former reference to § 548 of the Code of Civil Procedure omitted as now constituting § 23 of the Civil Rights Law (L. 1909, ch. 14). & Words "Article third" new, balance of title being now superseded by Judiciary Law (L. 1909, ch. 35), art. 16. Reference to art. 4 omitted for same reason. |