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Id. 421.

5 Redf. 353 3 Dem. 63. 13 Civ. Pro

205.

1 Conn. 491.

128 N. Y. 70. 85 Hun, 188.

2661 [im'd 1893.] A person appointed administra. 1 Dem. 171. Lefore letters are issued to him, must file his official , execute to the people of the State, and file with the rogate, the joint and several bond of himself and two or e sureties, in a penalty fixed by the surrogate, not less twice the value of the personal property of which the dent died possessed and of the probable amount to be vered by reason of any right of action, granted to an utor or administrator, by special provision of law. to be fixed as the amount of the penalty must be ascered by the surrogate, by the examination on oath of the icant or any other person, or otherwise, as the surrothinks proper. The bond must be conditioned that the inistrator will faithfully discharge the trust reposed in as such and obey all lawful decrees and orders of the ogate's court touching the administration of the estate mitted to him. But where a right of action is granted a executor or administrator by special provision of law, appears to be impracticable to give a bond sufficient to er the probable amount to be recovered, the surrogate , in his discretion, accept modified security, and issue ers limited to the prosecution of such action, but reining the executor or administrator from a compromise he action, and the enforcement of any judgment rered therein, until the further order of the surrogate additional further satisfactory security. In cases where he next of kin to the intestate consent, the penalty of boad need not exceed double the amount of the claims reditors against the estate, presented to the surrogate, suant to a notice to be published twice a week for four ks in the official State paper, and in two newspapers lished in the city of New York, and once a week for four 8 in two newspapers published in the county where intestate usually resided, and in the county where he , reciting an intention to apply for letters under this vision, and notifying creditors to present their claims to surrogate on or before a day to be fixed in such notice, ch shall be at least thirty days after the first publication eof; but no bond so given shall be for less than five isand dollars; and such bond may be increased by er of the surrogate for cause shown. Pending such aption, no temporary administrator shall be appointed ex> on petition of such next of kin.

2665. [Am'd 1893.] The county treasurer of each ney, except New York and Kings, by virtue of his office, authority to collect and take charge of the assets of ry person dying i estate, amounting to one hundred

county court of the county where the judgment was rendered.

§ 3023. A justice of the peace, whose term of office has expired, may make a transcript of a judgment rendered by him, as prescribed in either of the foregoing sections of this title.

TITLE VIL
Executions.

§ 3024. When justice may issue
execution.

3025. General requisites of exe-
cution.

3026. Execution upon judgment
for money.

3027. Renewal of execution.
3028. Property exempt from ex-
ecution.

3029. Indorsement of levy;
notice of sale.

3030. Mode of levy and sale.
3031. Return of execution.
3032. Execution against the per-
son; imprisonment of
judgment debtor.

3033. When judgment debtor to
be discharged.

3034. Affidavit; discharge.
3035. Penalty for not discharg.

ing.

3036. Affidavit a defence to ac tion for escape.

3037. Discharge not to affect judgment.

8038. Execution upon judgment in action for a chattei 3039. Action against constable for not returning execu tion.

3040. Constable not to act ander execution after return day.

3041. Action against constable for money collected. 3042. Duty of constable whose term of office has expired.

8043. Execution upon judgment docketed with county

clerk.

§§ 1399,1403, § 3024. At any time within five years after entry of a Consol. Act. judgment, the justice of the peace, who rendered it, being in office, may issue an execution thereupon, unless it has been docketed in the county clerk's office.

5 Misc. 533.

§ 3025. An execution, issued by a justice, must be 84 Hun, 166. directed generally to any constable of the same county. It must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the name of the justice by whom, the judgment was rendered; and it must be made returnable to the jus tice, within sixty days after its date.

148 N.Y. 592.

§ 3026. An execution, issued upon a judgment for a sum of money, must specify, in the body thereof, the sum recovered, and the sum actually due upon the judgment at the date of the execution; and, except in a case where special provision is otherwise made by law, it must, substantially, require the constable to satisfy the judgment, together with his fees, out of the personal property of the judgment debtor within the county, not exempt from levy and sale by virtue of an execution; and to bring the money before the justice, by the return day of the execution, to be rendered, by the justice, to the party who recovered the judgment. If the judgment was recovered against a male nerson, in either of the actions specified in subdivision first

or second of section two thousand eight hundred and ninety-five of this act; or if an order of airest was granted, and was executed, in a case specified in subdivision third of that section, the execution must also command the constable, if sufficient personal property cannot be found to satisy the judgment, to arrest the judgment debtor, and to convey him to the jail of the county, there to remain until he pays the judgment, or is discharged according to law. If the judgment was rendered in an action to recover a penalty or forfeiture given by a statute of the State, the justice must indorse upon the execution a reference to the statute, as prescribed in section one thousand eight hundred and ninety-seven of this act, with respect to a copy of the

summons.

§3027. After the return, wholly or partly unsatisfied, of an execution, issued by a justice of the peace, he may, from time to time, within five years after the judgment was rendered, issue a new execution, or renew the former execution. An execution is renewed by a written indorsement thereupon to that effect, signed by the justice, and dated upon the day when it is made. If part of the execution has been satisfied, the indorsement must state the sum remaining due. Each indorsement renews the execution for sixty days from the date thereof. A justice whose term of office has expired may thus issue or renew an execution.

§3028. The same personal property is exempt from levy and sale, by virtue of an execution issued by a justice of the peace, which is exempt from levy and sale, by virtue of an execution issued out of the supreme court, and in the like cases, and under the same circumstances, as prescribed in sections one thousand three hundred and eighty nine, one thousand three hundred and ninety, one thousand three hundred and ninety-one, one thousand three hundred and ninety-two, one thousand three hundred and ninety-three, and one thousand three hundred and ninetyfour of this act, and the other special provisions of law, relating to such an exemption.

§ 3029. A constable, who takes personal property into 47 Hun, 438 his custody, by virtue of an execution, must indorse upon The execution the time of levying upon it. He must immediately post conspicuously, in at least three public places of the city or town, in which the property was taken, written or printed notices, signed by him, describing the property, and specifying the place, within the same city or town, where, and the time, not less than six days after the posting, when, it will be exposed for sale.

§ 3030. The provisions of sections one thousand three hundred and eighty-four, one thousand three hundred and eighty-five, one thousand three hundred and eighty-six, one thousand three hundred and eighty-seven, one thousand four hundred and five, one thousand four hundred and

.

21 Misc. 342.

nine, one thousand four hundred and ten, one thousand four hundred and eleven, one thousand four hundred and twelve, and one thousand four hundred and twenty-eight of this get, substituting the constable for the sheriff, apply to and govern the levy upon and sale of personal property, by virtue of an execution issued by a justice of the peace; except where a different rule is prescribed in this act.

3031. The constable must return the execution to the justice, and pay to him the amount of the judgment, with interest, or so much thereof as he has collected; returning the surplus, if any, to the person from whose property it was collected.

3032. For want of sufficient personal property, whereon to levy, the constable must, if the execution requires it, arrest the judgment debtor, and convey him to the jail of the county. The keeper of the jail must thereupon keep the judgment debtor in custody, in all respects as if the execution was issued out of the suprerae court, until the judgment and the fees of the constable are paid; or until the judgment debtor is thence discharged, in due course of law; except that if the execution has an indorsement, showing that the judgment was rendered in an action for a penalty or forfeiture, given by a statute of the State, the sheriff shall not admit the judgment debtor to the liberties of the jail.

§ 3033. [Am'd 1883.] If a person committed to jail by virtue of an execution issued by a justice of the peace, or out of the municipal court of Buffalo, or by virtue of an execution issued by a county clerk on a transcript of a judg ment recovered before a justice of the peace, or in the said municipal court of Buffalo, has a family within the state for which he provides, he must be discharged, after remaining in custody, either with or without being admitted to the jail liberties, thirty days; otherwise he must be discharged after so remaining sixty days.

3034. In order to procure a discharge, as prescribed in the last section, the prisoner must make, and deliver to the sheriff or jailor, an affidavit, stating the facts which entitle him thereto, according to the provisions of that section. Upon receiving such an affidavit, the sheriff or jailor must forthwith discharge the prisoner from his custody. He must thereupon deliver the affidavit to the clerk of the county, who must file it in his office, without fee.

3035. A sheriff or jailor, who refuses to discharge the prisoner, upon receiving such an affidavit, forfeits twenty-five doliars for each day, during which he detains the prisoner; to be recovered by the latter, in addition to any damages, which he sustains by reason of the false imprisonment.

§ 3036. The receipt of such an affidavit is a defence, to an action brought against the sheriff or jailor, by reason of the prisoner's discharge.

Id. 421.

5 Redf. 353 3 Dem. 63. 13 Civ. Pro.

205.

1 Conn. 491.

128 N. Y. 70. 85 Hun, 188.

$ 266 [im'd 1893.] A person appointed administra. 1 Dem. 171. tor, before letters are issued to him, must file his official oa h, execute to the people of the State, and file with the surrogate, the joint and several bond of himself and two or more sureties, in a penalty fixed by the surrogate, not less tan twice the value of the personal property of which the de cedent died possessed and of the probable amount to be recovered by reason of any right of action, granted to an executor or administrator, by special provision of law. The sum to be fixed as the amount of the penalty must be ascertained by the surrogate, by the examination on oath of the applicant or any other person, or otherwise, as the surrogate thinks proper. The bond must be conditioned that the administrator will faithfully discharge the trust reposed in him as such and obey all lawful decrees and orders of the surrogate's court touching the administration of the estate committed to him. But where a right of action is granted to an executor or administrator by special provision of law, if it appears to be impracticable to give a bond sufficient to cover the probable amount to be recovered, the surrogate may, in his discretion, accept modified security, and issue letters limited to the prosecution of such action, but restraining the executor or administrator from a compromise of the action, and the enforcement of any judgment recov red therein, until the further order of the surrogate on additional further satisfactory security. In cases where al the next of kin to the intestate consent, the penalty of the bond need not exceed double the amount of the claims of creditors against the estate, presented to the surrogate, pursuant to a notice to be published twice a week for four weeks in the official State paper, and in two newspapers published in the city of New York, and once a week for four wees in two newspapers published in the county where the intestate usually resided, and in the county where he died, reciting an intention to apply for letters under this provision, and notifying creditors to present their claims to the surrogate on or before a day to be fixed in such notice, which shall be at least thirty days after the first publication thereof; but no bond so given shall be for less than five thousand dollars; and such bond may be increased by order of the surrogate for cause shown. Pending such aplication, no temporary administrator shall be appointed except on petition of such next of kin.

§ 2665. [Am'd 1893.] The county treasurer of each county, except New York and Kings, by virtue of his office, has authority to collect and take charge of the assets of every person dying i estate, amounting to one hundred

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