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thereof, as far as it is in his power so to do, at that or an other specified time; and in case of his default, it may preclude him from giving evidence of such parts thereof, as have not been so exhibited or stated.

sol. Act.

§ 2943. A variance, between an allegation in a pleading § 1347, Con · and the proof, must be disregarded as immaterial, unless the court is satisfied that the adverse party has been misled thereby, to his prejudice.

§1347, Con sol. Act.

18 Week.
Dig. 128.
24 N. Y.
State Rep.

899.

7 Misc. 561.

§ 2944. The court must, upon application, allow a pleading to be amended, at any time before the trial, or during the trial, or upon appeal, if substantial justice will be promoted thereby. Where a party amends his pleading after joinder of issue, or pleads over upon the decision of a demurrer, and it is made to appear to the satisfaction of the court, by oath, that an adjournment is necessary 83 Hun, 465. to the adverse party, in consequence of the amendment or pleading over, an adjournment must be granted. The court may also, in its discretion, require, as a condition of allowing an amendment, the payment of costs to the adverse party.

2945. Sections five hundred and one and five hundred 9 Misc. 72. and two of this act apply to a counterclaim in an action brought in a justice's court; except that such a counterclaim cannot be interposed, unless it is of such a nature, that a justice's court has jurisdiction of a cause of action founded thereon.

2946. Sections five hundred and five and five hundred and six of this act apply to a counterclaim in an action against a person sued in a representative capacity, or in favor of an exécutor or administrator, except that the defendant cannot take judgment against the plaintiff upon a counterclaim, for a sum exceeding two hundred dollars.

§ 2947. Where the defendant, in an action to recover damages upon or for breach of a contract, neglects to interpose a counterclaim, consisting of a cause of action in his favor to recover damages for a like cause, which might have been allowed to him upon the trial of the action, he, and every person deriving title there to through or from him, are forever thereafter precluded from maintaining an action to recover the same, or any part thereof.

2948. But the prohibition contained in the last section does not extend to either of the following cases:

1. Where the amount of the counterclaim is two hundred dollars more than the judgment which the plaintiff re

covers.

2. Where the counterclaim consists of a judgment, rendered before the commencement of the action, in which it might have been interposed.

3. Where the counterclaim consists of a claim for unliquidated damages.

4 Where the counterclaim consists of a claim, upon

85 Hun, 554.

31 Abb. N. C.

295.

which another action was pending, at the time when the action was commenced.

5. Where judgment is taken against the defendant without personal service of the summons upon him, or an appearance by him.

$2949. Where a counterclaim is established, which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff, unless it is more than the sum of two hundred dollars. If it is more than two hundred dollars, or if no part of it is due from the plaintiff, the justice must, at the election of the defendant, either:

1. Set off so much of the counterclaim as is sufficient to satify the plaintiff's demand, and render judgment for the defendant for his costs; in which case, the defendant may maintain an action for the residue; or,

2. Render a judgment of discontinuance with costs; in which case, the defendant may thereafter maintain an action for the whole.

Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof, as the judg ment does not cancel.

§ 2950. Where, upon the trial of an action, the sum 263; 75 Hun, total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars, judg ment of discontinuance must be rendered against the plaintiff, with costs.

§ 1349, Consol. Act.

12 Abb. N.

C. 348.

14 Misc. 342.

153 N. Y. 428.

$1350, ConFol. Act.

12 Abb. N. C. 348.

2951. The defendant may, either with or without other matter of defence, set forth in his answer facts, showing that the title to real property will come in ques tion. Such an answer must be in writing; and it must be signed by the defendant, or his attorney or agent, and delivered to the justice. The justice must, thereupon, countersign the answer, and deliver it to the plaintiff.

$2952. In the case specified in the last section, the defendant must also deliver to the justice, with the answer, a written undertaking, executed by one or more sureties, approved by the justice; to the effect that, if the plaintiff, within twenty days thereafter, deposits with the justice a summons and complaint in a new action, for the same cause, to be brought in the proper court, as prescribed in the next section, the defendant will, within twenty days after the deposit, give a written admission of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking must further provide, that he will, at all times, render himself amenable to any mandate, which may be issued to enforce a final judgment in the action so to be brought. If the defendant fails to

which the order was granted, that the petitioner can not, with reasonable diligence, ascertain a place or places where the person to be served would probably receive matter trans. mitted through the post office, dispenses with the deposit of any papers therein."

§ 2525. [Am'd 1882.] Where service is made by deliv ering a copy of the citation without the state, pursuant to an order made as prescribed in the last section, it must be made, if within the United States, at least thirty days, if without the United States at least forty days, before the return day of the citation. Proof of publication, deposit, or delivery may be made as prescribed in section four hundred and forty-four of this act.

2526. Service of a citation must be made upon an in- 49 Hun. 818 fant under the age of fourteen years, a person judicially declared to be incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, or a corporation, in the manner prescribed for personal service of a summons upon such a person, or upon a corporation, in article first of title first of chapter fifth of this act.

2527. Where a person, cited or to be cited, is an in- 8 Dem. 13. fant of the age of fourteen years or upwards, or where the surrogate has, in his opinion, reasonable grounds to believe, that a person, cited or to be cited, is an habitual drunkard, or for any cause mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, the surrogate may, in his discretion, with or without an application therefor, and in the interest of that person, make an order requiring that a copy of the citation be delivered, in behalf of that person, to a person designated in the order; and that service of the citation shall not be deemed complete until such delivery. Where the person, cited or to be cited, is an infant under the age of fourteen years, or a person judicially declared to be incompetent to manage his affairs, by reason of lunacy, idiocy, or habitual drunkenness, and the surrogate has reasonable ground to believe that the interest of the person, to whom a copy of the citation was delivered, in behalf of the infant or incompetent person, is adverse to that of the infant or incompetent person, or that, for any reason, he is not a fit person to protect the latter's rights, the surrogate may likewise make such an order; and as a part thereof, or by a separate order, made in like manner at any stage of the proceedings, he may appoint a special guardian ad litem to conduct the proceedings in behalf of the incompetent person, to the exclusion of the committee, and with the same powers, and subject to the same liabilities, as a committee of the property.

§ 2528. [Am'd 1896, amendment to take effect September 1, 1896.] In a surrogate's court, a party of full age may, unless he has been judicially declared to be incompetent to manage his affairs, prosecute or defend a special proceeding, in person or by attorney regularly admitted to practice in the courts of record, at his election, except in a proceeding to punish him

46 Hun, 370.

40 Пun, 207.

TITLE IV.

Proceedings between the joinder of issue and the trial.

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§ 2959. At the time of the return of a summons, or of the joinder of issue without process, but at no other time, the justice may, in his discretion and upon his own motion, adjourn the trial of the action not more than eight days, unless the defendant has been arrested; in which case, no such adjournment shall be made.

§ 2960. At the time of the return of a summons, or of the joinder of issue without process, the justice must. upon the application of the plaintiff, adjourn the trial of the action, not more than eight days, to a time fixed by the justice. But such an adjournment shall not be granted unless the plaintiff or his attorney, if required by the defendant, makes oath that the plaintiff cannot, for want of some material testimony or witness, specified by him, safely proceed to trial.

§ 2961. At the time of the joinder of issue, the justice must, upon the application of the defendant, adjourn the trial of the action, upon his complying with the following requirements :

1. The defendant or his attorney must, if required by the plaintiff, or by the justice, make oath that he verily believes that the defendant has a good defence to the action, and that he cannot safely proceed to trial, for want of some material testimony or witness, specified by him.

2. If required by the plaintiff, and the defendant has not been arrested in the action, an undertaking must be given to the plaintiff in behalf of the defendant, as prescribed in the next section. But such an undertaking need not be given, where the action is to recover a chattel.

Such an adjournment must be for such a reasonable time, fixed by the justice, as will enable the defendant to procure the testimony or witness.

2962. The undertaking described in the last section must be executed by one or more sureties, approved by the

justice; and must be to the effect that, if the plaintiff recovers judgment in the action; and if, before the expiration of ten days after the plaintiff becomes entitled to an execution upon the judgment, the defendant removes, secretes, assigns, or in any way disposes of any part of his property, liable to levy and sale by virtue of an execution, except for the necessary support of himself and his family, and if an execution upon the judgment is returned wholly or partly unsatisfied; the sureties will, upon demand, pay to the plaintiff the sum due upon the judgment.

§ 2963. Where the defendant has been arrested, the trial must be aujourned upon his application, upon the same terms, and in the same manner, as where he has not been arrested; except that the undertaking prescribed in the last section need not be given. A defendant, who procures such an adjournment, must continue, during the time of adjournment, in the custody of the constable: unless he gives an undertaking to the plaintiff, with one or more sureties, ap proved by the justice, to the effect that, if the plaintiff recovers judgment in the action; and if an execution is issued thereupon against the person of the defendant, within ten days after the plaintiff is entitled to the same; and if a return is made thereto, on or after the return day thereof, that the defendant cannot be found; the sureties will pay to the plaintiff the amount due upon the judgment. If such an undertaking is given, the defendant must be discharged from custody.

§ 2964. If the trial of an action, in which the defend ant has been arrested, is adjourned with the consent of both parties, or upon the application of the plaintiff, the defendant must be discharged from custody.

§ 2965. The justice must, upon the application of the defendant, grant a second or subsequent adjournment of the trial of the action, upon the defendant's giving security, if required, as prescribed in the foregoing provisions of this article, where he applies for a first adjournment; and upon his proving, by his own oath or otherwise, to the satisfaction of the justice, that he cannot safely proceed to trial for want of some material testimony or witness; and that he has used due diligence to obtain the testimony or witness. But if the defendant has given an undertaking upon a former adjournment, a new undertaking need not be given, unless it is required by the justice, or by the sureties in the former undertaking.

§ 2966. Upon granting the defendant's application for 6 Civ. PIG an adjournment, where the trial has been once adjourned, 28. or where the plaintiff is a non-resident of the county, the justice may, in his discretion, upon the plaintiff's application, direct that any witness on the part of the plaintiff, who is in attendance, be then examined under oath before the justice. Thereupon the testimony of the witness must be reduced to writing, certified by the justice, and retained

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