§ 3154. Action on judgment of justice.

In an action upon a judgment of a justice of the peace,brought in the county wherein it was rendered, within five years after the rendition thereof, against a defendant upon whom the summons was personally served, no costs can be recovered, except where the justice, who rendered the judgment, is dead, or out of office, or otherwise incapable of acting: or has removed from the county: or where one of the parties has died: or where the docket of the judgment has been lost or destroyed.

Co. Proc., § 71, last clause.

§ 3155. Id.; proof of judgment, etc.

In an action brought upon a judgment of a justice of the peace, who is dead, or out of office, or otherwise incapable of acting; or has removed from the county; or cannot be found therein; the original docket-book of the justice is presumptive evidence of any matter entered therein, as prescribed by law; but the presumption may be repelled by proof. If the docket-book is lost or destroyed, or if it cannot be produced, after reasonable. effort to obtain it, the like proof may be given, respecting the recovery of the judgment, as upon any other question of fact. Sections 265 and 267, R. S.

3156. Execution of mandate by private person.

A justice of the peace, who issues any mandate, authorized by this chapter, except a venire, may, at the request of the party, whenever he deems it expedient so to do, empower, by a written authority indorsed upon the mandate, any proper person of full age, not a party to the action, to serve or otherwise execute it. For that purpose the person so empowered has all the power and authority, and is subject to all the obligations and liabilities, of a constable; and his return is evidence in like manner as a constable's. But a person so empowered is not entitled to any fee or reward for his services.

Sections 271 and 272, R. S. See § 2885, ante.

§ 3157. Constable to execute mandates in person.

A constable, to whom a mandate is directed and delivered as prescribed in this chapter, must execute it in person, pursuant to the tenor thereof. He cannot act by deputy in such a case. Section 273, R. S. See § 2885, ante.

§ 3158. Sheriff to act where execption 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 104, 105, and 106 of this act apply to a mandate delivered to a sheriff, as prescribed in this section.

See § 104-106, ante.

CHAPTER XX.

Provisions Relating to Certain Courts in Cities, and the Proceedings Therein.

TITLE I. The City Court of the City of New York.

TITLE II.-The Mayor's Court of the City of Hadson, and the Recorders Courts of the Cities of Utica and Oswego.

TITLE III.-The City Court of Yonkers.

TITLE IV.-The District Courts of the City of New York, and the Justices Courts of the Cities of Albany and Troy.

TITLE V.-The Municipal Court of the City of Rochester.

TITLE I.

The city court of the city of New York.

Article 1. Provisions generally applicable to proceedings in the court.

2. Provisions exclusively applicable to the proceedings, other than appeals, in an ordinary action.

3. Provisions exclusively applicable to the proceedings, other than appeals, in certain marine causes.

4. Appeals.

ARTICLE FIRST.

Provisions generally applicable to proceedings in the court. Sec. 3159. Provisions, applying generally to courts of record, subject to cer tain qualifications.

3160. Certain sections not to apply to New York city court; whe a nonresident.

3161 Time for service of notices.

3162. Service of notice of trial; filing of note of issue

3163. When court may relieve from imprisonment.

3164. Money; how paid into the court.

3164a. Fees of clerk of New York city court.

§ 3159. [Am'd, 1907.] Provisions, applying generally to courts of record, subject to certain qualifications.

Each of the foregoing provisions of this act which is made, by chapter twenty-second of this act, applicable to the city court of the city of New-York, or generally to courts of record, is subject to the qualifications and exceptions expressed or plainly implied in this title.

L. 1872, ch. 629, § 2; am'd L. 1907, ch. 707. In effect Aug. 12, 1907.

§ 3160. [Am'd, 1896, 1902.] Certain sections not to apply to New York city court; who a non-resident.

Sections four hundred and thirty-eight and six hundred and three, sections six hundred and eleven to six hundred and nine teen, both inclusive, and sections six hundred and thirty-six. eight hundred and twenty-seven and ten hundred and fifteen of this act do not apply to an action or a special proceeding brought in the city court of the city of New York, or before a justice thereof, or to any proceeding therein. Sections thirty-two hundred and sixty-eight and thirty-two hundred and sixty-nine of this act do not apply to an action in the court, prosecuted as prescribed in article third of this title; or where an undertaking as been given as prescribed in section thirty-one hundred and

sixty-five of this act. A plaintiff, in an action brought in the court, who has an office for the regular transaction of business in person, within the city of New York, is deemed a resident of that city within the meaning of sections thirty-two hundred and sixty-eight and thirty-two hundred and sixty-nine of this act.

2. The provisions of section ten hundred and thirteen of the code of civil procedure are hereby made applicable to and binding upon the city court of the city of New York.

L. 1896, ch. 954. See § 1013. L. 1902, ch. 615. In effect Sept. 1, 1902.

§ 3161. [Am'd, 1902.] Time for service of notices in New York city court.

The time for personal service of certain notices, in an action brought in the court, is as follows:

1. Notice of justification of the sureties, in an undertaking given by the plaintiff, as security for the defendant's costs, not more than two days.

2. Notice of an application for judgment in a case specified in section five hundred and thirty-seven of this act; notice of a motion to strike out a pleading, in a case specified in section five hundred and thirty-eight of this act; notice of an application for judgment upon the defendant's default, or of the execution of a reference, or writ of inquiry, or of an assessment thereupon, as prescribed in section twelve hundred and nineteen of this act; not less than two days.

3. Notice of the justification of bail, not less than two, nor more than ten days.

4. Notice of a motion, other than a motion specified in subdivision second of this section, not less than four days; but the court or a justice thereof may, upon an affidavit showing grounds therefor, prescribe a shorter time, by an order to show cause.

5. Notice of trial of an issue of fact, or of an issue of law; notice of any hearing, the time for serving which is not expressly prescribed in either of the foregoing subdivisions of this section, or elsewhere in this title; not less than five days.

6. Notice of taxation of costs, not less than two days; except where all the attorneys, serving and served with the notice, reside or have their offices in the city of New York, in which case, one day's notice is sufficient.

L. 1872, ch. 629, §§ 5 and 14; L. 1874, ch. 545, § 2; L. 1875, ch. 479, §§ 17 and 50; also, § 51, subd. 10; L. 1902, ch. 515. In effect Sept. 1, 1902.

§ 3162. [Am'd, 1902.] Service of notice of trial; filing of note of issue.

Notice of trial of an issue triable at a term of the court may be given for any day of the term. A note of issue must be filed at least two days before the day, or the commencement of the term, for which the notice of the trial is given; and it must, in addition to the matters specified in section nine hundred and seventy-seven of this act, state the day or the term, for which the notice has been given. But this and the last section do not apply to a case where special provision is otherwise made in article third of this title.

See L. 1874, ch. 545, § 2; L. 1902, ch. 515. In effect Sept. 1, 1902.

§ 3163. When court may relieve from imprisonment. Where it satisfactorily appears that a party, who is actually confined in jail, by virtue of an order of arrest, or an execution against the person, issued in an action brought in the court, is physically unable to endure the confinement, and that he cannot procure bail, or the necessary sureties in a bond for the jail liberties, as the case requires, the court, or justice thereof, may. in its or his discretion, by order, direct the sheriff to release him from custody. The sheriff must obey such an order. After such a release from an execution against the person, another execution. against the person of the judgment debtor, cannot be issued upon the judgment; but the judgment creditor may enforce the judgment against property, as if the execution, from which the judg ment debtor was released, had been returned without his being taken.

See L. 1875, ch. 479, part of § 10.

§ 3164. Money; how paid into the court.

Money paid into the court, pursuant to any provision of this act, must, unless the court otherwise directs, be paid directly to the chamberlain of the city of New-York, to the credit of the cause in which it is paid.

§ 3164a. [Added, 1906.] court.

Fees of clerk of New York city

The clerk of the city court of the city of New York is entitled to receive for the use of the city of New York, for the services performed by him the following fees and none other: For filing a note of issue for the general or equity calendar, three dollars: for entering final judgment in an action, including the filing of the judgment roll, fifty cents; and ten cents in addition for each folio exceeding ten, contained in said judgment. For filing and entering an order directing the change of name, one dollar for each name so changed. For entering any other order or an interlocutory judgment, ten cents for each folio exceeding five. For a certified or other copy of an order, record, or other paper. entered or filed in his office, five cents for each folio. For filing and entering a certificate of satisfaction, of a judgment twentyfive cents and for certifying a copy thereof twelve cents. For filing and entering an assignment of a judgment twenty-five cents, and for certifying a copy thereof twelve cents. For filing and entering a release of a judgment twenty-five cents, and for certifying a copy thereof twelve cents. For certifying a transcript of the docket of a judgment twelve cents. For an extract of the minutes of a trial ten cents. For attesting the correctness of the copy of any paper or record on file in his office, ten cents for each folio. For a certificate other than herein described. twenty-five cents. For making and certifying a search for any paper or record, one dollar. For comparing and certifying the printed papers on appeal from an order or judgment taken as prescribed in article fourth of title first of chapter twenty of this act, one cent per folio thereof. But where the attorneys for all the parties interested, other than parties in default or against whom a judgment or a final order has been taken, and is not appealed from, stipulate in writing that a paper is a copy of any paper whereof a certified copy is required by any provisions of this act, the stipulation takes the place of a certificate, as to the parties so stipulating, and the clerk is not required to certify the same, or entitled to any fees therefor. And the paper so proved by stipulation shall be received by the clerks of all the courts and by the courts and shall be used or filed with the same force and effect as if certified by a clerk of the court.

Added L. 1906, ch. 273. In effect Apr. 19, 1906.

ARTICLE SECOND.

Provisions exclusively applicable to the proceedings, other than appeals, in an ordinary action.

Sec. 3165. Summons.

3166. Time for service of pleadings, etc.

3167. Enforcement of certain judgments in favor of working women. 3168. Time for non-acceptance and justification of bail, etc.

3169. Proof necessary to obtain warrant of attachment.

3170. Service of summons without the city, or by publication.

3171. Commission to take testimony.

3172. Court may refer question arising upon a motion.

3173. Time for filing decision upon a trial by the court. Id.; when

sufficient.

3174. Counterclaims.

3175. Perishable property may be sold.

3176 Portion of verdict, etc., may be remitted.

§ 8165. Summons.

The summons, in an action brought in the court, must state that the time, within which the defendant must serve a copy of his answer, is six days after the service thereof, exclusive of the day of service; except in one of the following cases:

1. A justice of the court may, upon satisfactory proof, by affidavit, that either the plaintiff or the defendant resides without the city of New-York; or, where there are two or more plaintiffs, or two or more defendants, that all the plaintiffs or all the defendants reside without that city, direct, by an order, that the defendant be summoned to answer within a shorter time, specified therein, not less than two days after the service of the summons, exclusive of the day of service; whereupon the summons must correspond to the order. The order must be indorsed upon or annexed to the summons; and a copy thereof must be delivered with a copy of the summons. The justice may, in his discretion, as a condition of granting the order, require the plaintiff to give an undertaking, with one or more sureties, to the effect that the plaintiff will pay any judgment which may be rendered against him in the action, not exceeding a sum specified in the undertaking, which must be at least two hundred dollars.

2. Where an order, directing service of the summons without the city of New-York, or by publication, is granted, the summons must state that the time, within which the defendant must serve a copy of his answer, is ten days after service thereof. exclusive of the day of service. If a summons, requiring the defendant to answer within a shorter time, has been issued, as prescribed in this section, before an order specified in this subdivision is granted, the justice granting such an order may direct that the summons be amended accordingly, and thereupon the summons published, or served without the city, pursuant to the order, must correctly state the time.

L. 1872. ch. 29. § 5; L. 1874, ch. 545, § 1.

§ 3166. Time for service of pleadings, etc.

The time, within which a defendant in a case specified in section 479 of this act must demand a copy of the complaint, and the time within which the plaintiff must serve the same, after a de mand thereof, as prescribed in that section, and the time, within which a copy of a pleading, subsequent to the complaint, must be served, after the service of a copy of the preceding pleading, is the