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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 prescribed in section two thousand 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 judgment 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 one thousand and thirty-three of this code, and in either case draw another ballot, and continue to do so until twelve are drawn. After the adjournment of the court, at which a jury trial has been had, the justice must deposit the ballot 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,

2992. Where the action is between two towns or cities, or between a town and a city, the venire must direct the constable to notify twelve men of the county, who are qualified and not exempt, as prescribed in the last section, and who are not interested in the matter at issue, to form a jury for the trial of the action.

§ 2993. [Am'd 1889.] The justice must insert the 22 Miso. 224. names of the jurors so drawn, in a venire and deliver or cause it to be delivered to a constable of the county disinterested between the parties. The constable must at least three days before the day therein stated, notify each of the persons whose names have been therein inserted, by reading it or stating the substance thereof to the person so served. But the service shall not be affected by the constable's failure after diligent search, to find any of the persons so named. The constable must make his return upon the venire, certifying that he has so personally served it upon each of the jurors whose names are therein inserted, or if any were not served, stating the reason for such omission. Any constable making a false return upon such venire is guilty of a misdemeanor. Any person so served and not attending at the time and place to which the cause

* So in original.

Dem. 240. 2 1d. 203.

4 Id. 168. Id. 297. Id. 487.

davit, verified as prescribed in section two thousand six hundred and thirty-six of this act, showing that he is.. creditor of decedent, or a person interested in the estate, and setting forth specially one or more legal objections to granting letters to the person selected. The proceedings to be taken thereupon are the same, as prescribed in sections tw thousand six hundred and thirty-seven and two thousand six hundred and thirty-eight of this act. If letters are not issued to the person so selected, the power of selection is deemed to be exhausted.

§ 2642. [Am'd 1883.] If a person named as executor in a will does not qualify or renounce within thirty days after probate thereof; or if a person, chosen by virtue of a power in the will, does not qualify or renounce within thirty days after the filing of the instrument designating him; or, in either case, if objections are filed, and the executor does ret qualify or renounce within five days after they are determined in his favor, or in a case specified in section twentysix hundred and thirty-eight of this act, within five days after an objection has been established; the surrogate must, upon the application of any other executor or any creditor or person interested in the estate, make an order requiring him to qualify within a time therein specified; and directing that in default of so doing, he be deemed to have renounced his appointment. Where it appears by affidavit or other written proof to the satisfaction of the surrogate that such an order cannot, with due diligence, be served personally within the state, upon the person therein named, the surrogate may prescribe the manner in which it must be served, which may be by publication. If the person so appointed executor does not qualify within the time fixed, or within such further time as the surrogate allows for that purpose, an order must be made and recorded, reciting the facts, and declaring that he has renounced his appointment as executor. Such an order may be revoked by the surrogate in his discretion, and letters testamentary may be issued to the person so failing to renounce or qualify, upon his application, in a case where he might have retracted an express renunciation, as prescribed in section twenty-six hundred and thirty-nine of this act. And where any powers to sell, mortgage or lease real estate, or any interest therein, are given to executors as such, or as trustees, or as executors and trustees, and any of such persons named as executors shall neglect to qualify, then all sales, mortgages and leases under said powers made by the executors who shall qualify shall be equally valid as if the other executors or trustees had joined in such sale.

§ 2643. [Am'd 1881, 1895, amendment to take effect September 1, 1895.] If no person is named as executor in the will, or selected by virtue of a power contained therein; or if, at any time, by reason of death, incompetency adjudged by the surrogate, renunciation in either of the methods prescribed

for the purpose; or in his discretion he may draw from the jury box double the number of jurors required to complete the jury in the mauner required by the foregoing sections, which shall be summoned in like manner as the first jury, and he shall continue to do so till a jury is obtained. Nothing herein before contained shall preclude the justice from adjourning the trial of the case, on his motion, or on the application of either of the parties to the action, as provided by sections twenty-nine hundred and fifty nine to twenty-nine hundred and sixty-eight of the code of civil procedure.

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§ 2998. The justice must administer an oath or affirmation to each juror, well and truly to try the matter in difference between plaintiff, and defendant, and, unless discharged by the justice, a true verdict to give, according to the evidence. § 2999. After the jurors have been duly sworn, they must sit together, and hear the allegations and proofs of the parties, which must be made publicly, in their presence.

§ 3000. A person offered as a witness, must, before any testimouy is given by him, be duly sworn or affirmed, to the effect that the evidence which he shall give, relating to the matter in difference between

plaintiff, and

-, defendant, shall be the

truth, the whole truth, and nothing but the truth.

§ 3001. Where a witness, attending before a justice in an action, refuses to be sworn or affirmed in the form prescribed by law; or to answer a pertinent and proper question; or neglects or refuses to produce a book or paper which he has been duly subpoenaed to produce, as prescribed in section two thousand nine hundred and sixtynine of this act, or duly required to produce by an order, made as prescribed in section eight hundred and sixtyseven of this act; and the party, at whose i stance he attended, makes oath that the testimony of the witness, or that the book or paper, is so far material, that without it he cannot safely proceed with the trial of the action, the justice may, by warrant, commit the witness to the jail of the county.

3002. The warrant must specify the canse for which it is issued. If it is issued for refusing to answer a question, the question must be specified therein; if for neglecting or refusing to produce a book or paper, the same must be described with convenient certainty. The recusant witness must be closely confined, by virtue of the warrant, until he submits to be sworn or affirmed, or to answer, or to produce the book or paper required, as the case may be; or is otherwise discharged according to law.

§ 3003. The justice must thereupon, from time to time, at the request of the party in whose behalf the witness attended, adjourn the trial, until the witness testifies, or produces the book or paper required, or dies, or becomes a lunatic. or is discharged according to law.

§3004. An ex parte affidavit shall not be received in evidence upon a trial, without the consent of both parties, except in a case where it is specially allowed by law.

23 Misc. 495.

§ 3005. An objection to the competency of a witness must be tried and determined by the justice. Where the ground of the objection depends upon a matter of fact, evidence may be given thereupon, as upon any other ques tion of fact; except that, if the witness is examined thereupon by the party objecting, no other testimony shall be received from either party as to his competency.

§ 3006. After hearing the allegations and proofs, the jury must be kept together in a private and convenient place, under the charge of a constable, until they all agree upon their verdict; and, for that purpose, the justice shall administer to the constable the following oath: "You swear in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as jurors upon this trial together, in a private and convenient place, without any meat or drink, except such as shall be ordered by me; that you will not suffer any communication to be made to them, orally or otherwise; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed upon their verdict, until they are discharged; and that you will not before they render their verdict, communicate to any person the state of their deliberations, or the verdict they have agreed upon".

§ 3007. When the jurors have agreed upon their verdict, they must publicly deliver it to the justice, who must enter it in his docket-book. It is not necessary to call the plaintiff before receiving the verdict; and the plaintiff cannot submit to a nonsuit or withdraw the action, after the cause has been committed to the jury.

§ 3008. Where the justice is satisfied that the jurors cannot agree upon a verdict, after having been out a reasonable time, he may discharge them, and issue a new venire, returnable within forty-eight hours; unless the parties consent, and their consent is entered in the justice's docketbook, that the justice may render judgment upon the evidence already before him; which he may do, in that case.

3009. A person duly notified to attend as a juror, who fails to attend, or, attending, refuses to serve, without a reasonable excuse, proved by his oath, or the oath of another person, is liable to the same fine, to be imposed and collected, with costs, in like manner, and applied to the same use, as is prescribed in article second of title fourth of this chapter, with respect to a person subpoenaed as a witness, and not attending, or attending and refusing to testify.

TITLE VI.

Judgment; and docketing the same.

8010. Judgment by confession. 3011. Id.; mode of confessing judgment.

3012. Id.; when void.

3013. Judgment of nonsuit. 3014. Judgment upon verdict,

etc.

§ 3010-3015

JUDGMENT

§ 3015. When judgment to be rendered.

3916. Remitting part of verdict,

etc.

3017. Transcript of judgment; docketing the same. 3018. Id.; when execution may issue against per

son.

3019. Id.; in action for a chattel.

387

3020. Judgment against joint
debtors.

302. Docketing the same; ac-
tion thereupon.

3022. Docketing judgment in
another county.

3023. Justice may give trans-
cript, after expiration
of his term.

State Rep

3010. A justice of the peace may enter a judgment 24 N. Y upon the confession of the defendant, in any case, where the amount confessed does not exceed the sum of five hundred dollars, with such a stay of execution, if any, as is agreed upon by the parties to the judgment.

552

§ 3011. A judgment upon confession shall not be ren- 30 App. Div. dered, unless the following requisites are complied with:

1. The defendant must personally appear before the justice.

2. The confession must be in writing, signed by the defendant, and filed with the justice.

3. If the judgment is confessed for a sum exceeding fifty dollars, the confession must be accompanied with the aflidavit of the defendant and of the plaintiff, stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein, over and above all just demands which the defendant has against the plaintiff; and that the confession is not made or taken with intent to defraud any creditor.

3012. A judgment confessed, otherwise than as prescribed in the last section, is void, as against every person, except a purchaser in good faith of property, real or personal, thereunder, and the defendant making the confession.

173.

sol. Act.

3013. Judgment of nonsuit, with costs, must be ren- $1882, Condered against a plaintiff prosecuting an action before a justice of the peace, in either of the following cases:

19 N Y. State Rep. 295; 9 App, Div. 175.

1. If he discontinues or withdraws the action.

2. If he fails to appear within one hour after the summons is returnable, or within one hour after the time to which the trial has been adjourned.

3. If he is nonsuited upon the trial.

3014. Where a verdict, or the decision of the justice upon a trial without a jury, is rendered in favor of either party, the justice must render judgment against the adverse party in conformity thereto, with costs, except as is otherwise specially prescribed by law.

32 Hun, 363. 46 Id. 492. 19 N. Y.

State Rep. 295.

§ 3015. Where the plaintiff is nonsuited, or discontinues or withdraws the action; or where judgment is confessed, or a verdict is rendered; or where, at the close of the trial, the defendant is in custody; the justice must forthwith render judgment, and enter it in his docket-book. 14 Misc. 125. In every other case, he must render judgment and enter it 2 App. Div. in his docket book, within four days after the cause has been 1. finally submitted to him.

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