preme court cannot vacate in such case (Bradstreet's Collection Bureau 180 AD 511. 167 NYS 751, aff 95 Mis 188, 159 NYS 202; Petsche 94 Mis 655, 158 NYS 494); judgment on confession (Riverside Security Co 72 Mis 396, 130 NYS 167). Libel and slander: action for slander of title (Title Ins Co 76 Mis 478, 135 NYS 608). of Loss of husband or wife's society: action founded on intentional injury to consortium (*Lyons 49 Mis 517, 97 NYS 1033). Malicious prosecution: (*Barsotti 157 NYS 844; Telzer 61 Mis 59, 113 NYS 18). Matters within jurisdiction of courts equity: (*McConologue 29 Mis 139, 60 NYS 279); action on partial assignment of wages for separate weeks (Thompson 71 Mis 126, 128 NYS 210, aff 145 AD 436, 129 NYS 1025, aff 207 NY 659, 100 NE 794); action to cancel sealed instrument for mistake in execution (*Pelgram 58 Mis 195, 109 NYS 55); to establish trust in savings bank deposit (Herpe 89 Mis 142, 151 NYS 503); to set aside an assignment of money for fraud (*Midler 45 Mis 637, 91 NYS 148); fraud as equitable defense (Wilbisky 90 Mis 335, 152 NYS 1048; Milella 47 Mis 690, 94 NYS 464); jurisdiction by consent (Herpe 89 Mis 142, 151 NYS 503); reformation of contract (*Metropolitan Elec Protective 185 NYS 358) or lease (*O'Rourke 147 NYS 31; *Kraus 46 Mis 463, 92 NYS 329); rescission of contract of sale (*Peterson 82 Mis 451, 143 NYS 1038) for fraud (Belletiere 47 Mis 161, 93 NYS 471). Mechanic's lien: action to establish and for personal judgment (See Bogopoler Realty Co 59 Mis 495, 110 NYS 853); action to enforce (Weinstock 134 AD 598, 119 NYS 604; Nelson 67 Mis 128, 121 NYS 1018); action to foreclose (*Boynton Furnace Co 141 AD 773, 126 NYS 695; *Drall 51 Mis 618, 101 NYS 171), under former law (Eadie 64 AD 424, 72 NYS 233; Kotzen 33 Mis 299, 68 NYS 497; *Smith 53 Mis 462, 65 NYS 1053; McConologue 29 Mis 139, 60 NYS 279); Judgment establishing lien of a defendant subcontractor and adjusting priorities (*Drall 51 Mis 618, 101 NYS 171); personal judgment for sum due against owner, where no contract between him and plaintiff (*Daxe 56 Mis 673, 107 NYS 601). New trial, grant of: for newly discovered evidence not limited by MCA § 254 (PxTobenkin v O'Connell 134 AD 457, 119 NYS 305); on vacation of judgment in action tried by court, tho supreme court cannot grant new trial (Petsche 94 Mis 655, 158 NYS 494); provided that justice uses discrimination and states reason for grant (Sylvan Mortgage Co 188 NYS 516). Partnership account after dissolution or other termination: (*Stein 185 NYS 838; *Fischer 161 NYS 342; *Golden 159 NYS 842; Schmitt 94 Mis 640, 158 NYS 575; *Voegtlin 54 Mis 254, 104 NYS 394; see Cahill 183 AD 659, 170 NYS 1000 dis op); action by parties to whom firm accounts were transferred absolutely on dissolution to recover money thereafter collected by defendant partner on accounts (Barnett 150 NYS 550). Personal injuries: action by employe injured while employed as stevedore on board ship moored to pier (La Rosa 115 Mis 392, 188 NYS 396); action for loss of wife's services because of personal injury thru negligence (Leyden 122 AD 383. 106 NYS 769; McVeigh 72 AD 598, 76 NYS 535), tho wife's society also lost (Lyons 49 Mis 517, 97 NYS 1033). Process, correction of: warrant for possession in summary proceedings which clerk omitted to sign (Tauszig 115 Mis 366, 188 NYS 92). V Property injuries: action against attorney for false return of service of summons to plaintiff as defendant, on which there was judgment, execution and levy (Main Electric Co 72 Mis 30, 129 NYS 66); action by creditor for loss from prohibited transfer of property by corporation to its officer in payment of debt due him from it (Trustees of Masonic Hall & Asylum Fund 99 Mis 497, 164 NYS 370); action for causing plaintiff's discharge from employment by false representations to employer (*Scott 92 Mis 195, 155 NYS 497); for injury to realty (Post 88 Mis 334, 151 NYS 947); for loss of property, not for injury thereto (*Kneustler 30 Mis 442, 62 NYS 593); for wrongful attachment where proof showed attachment was rightful in inception and became wrongful because plaintiffs had no cause of action on which any attachment could be based (*Barsotti 157 NYS 844); for wrongfully filing mechanic's lien, thereby delaying work on building and resulting in loss of rent (Ghilione 115 AD 606, 100 NYS 1024). Stay of proceedings: stay beyond five days (*Sowden 114 NYS 164); stay of action till plaintiff pays judgment for costs in prior action in defendant's favor (McKown 60 Mis 98, 111 NYS 609). Summary proceedings: (PxHalperin Strahl 113 Mis 23, 184 NYS 710; Ebling Brewing Co 58 Mis 545, 109 NYS 808; Dickinson 50 Mis 640, 98 NYS 694; Gossett 90 NYS 477; Cohen 43 Mis 79, 86 NYS 514), clerk being authorized to sign warrant (PxHalperin v. Strahl 113 Mis 23, 154 NYS 710) and mandamus lying to compel him to sign it (PxKilgal.on Nuhn 92 Mis 312, 156 NYS 559); counterclaim in excess of $1000 (Broadway & Ninety-Fourth St 116 Mis 440, 190 NYS 563; defenses in, equitable defenses (Osterweil 113 Mis 395, 186 NYS 234); legal or equitable defenses, matters defeating landlord's termination of lease under cancellation clause (Huyler's 195 AD 410, 186 NYS 290); making of final order on confession or consent, without taking proof on consent (Dabrose Realty Corp 116 Mis 603, 190 NYS 317); vacation of warrant for possession (*Myers 186 NYS 606; *PxHalperin V Strahl 113 Mis 23, 184 NYS 710); warrant for possession, grant or vacation of stay of, stay of 30 days or less (Hyman 185 NYS 301), after expiration of original stay (*PxHSHRealty Corp v. Murphy 194 AD 530, 186 NYS 38). Surety bond or undertaking: action on attachment bond taken in supreme court (*Ward 25 Mis 198, 54 NYS 177), on sister state special bail bond (Isenberg 70 Mis 498. 127 NYS 411, aff 145 AD 256, 130 NYS 27). V § 7. Board of justices. 1. The justices of this court shall constitute the board of justices and shall discharge the functions thereof. They shall elect from their own number a president of the board of justices, and may at pleasure remove him and elect a successor in his place. The meetings of the board shall be public, and, so far as practicable, shall be held at regular intervals; and all its proceedings shall be recorded by its secretary and shall be preserved. A majority of all the members of the board shall constitute a quorum. The board may by resolution provide for the conduct of its meetings, the keeping and preservation of its minutes and the public inspection thereof at reasonable times; for the order of judicial business, the manner of its discharge and the maintenance of order in and about the court; for the establishment of parts of the court and for the yearly assignment of justices to hold the several parts so established; provided, however, that no justice shall sit in any one district for two successive months, or in the borough of Manhattan for more than three months in any one year, or in the other boroughs for more than the minimum number of months under a system of complete rotation by the justices within such boroughs respectively. 3. The president of the board of justices shall preside and be entitled to a vote at all meetings of the board. In addition to all the other powers of a justice, he shall exercise general supervision of the business of the court and have such other powers as may be conferred by resolutions of the board. He shall, whenever he deems it necessary for the prompt disposition of business, assign, in the borough from which he was elected, any justice temporarily to hold court in any district in said borough other than that in which he had been assigned by the board, and may assign a justice, with his consent, regardless of borough lines, to any district within the city, and transfer cases for trial from one district to another in the same borough. The acts or directions of the president of the board of justices may be vacated, amended or modified by a majority vote at a regular or special meeting of the board. 4. The board of justices may designate a clerk of said court for one of said districts to act as secretary of said board and from time to time substitute another and fix a compensation to be paid for such service, not exceeding the sum of one thousand dollars per annum. The secretary of the board of justices shall have charge of such administrative work and perform such duties as may be assigned to him by the board. He shall maintain an office where he shall keep such records as the board may direct. EDITORIAL NOTES Source: MCA § 11 and Greater NY Charter § 1374, amended and rewritten with new matter added. Embraces some of the matter contained in MCA §§ 12 and 13. Provisions creating offices of Chief Justice and Chief Clerk, and defining their powers and duties, are new. System of rotation of justices retained. §§ 11, 12, 13 from L 1901, ch 466, §§ 1374, 1375. Star (*) means read Not into HEADLINE in capitals. For explanation see MCC § 1. JUSTICES PROPERLY ASSIGNEDElected for: 13th district, presiding at trial in 4th district (Sakolski 50 Mis 151, 98 NYS 190). Rotation: provision for not invalid as class TRANSFER OF CASE PROPER— Former provision: now omitted (Lesser 46 Not applied: (Greenwald 179 AD 672, 167 § 8. Rules of court. The board of justices may adopt and amend rules relating to the following subjects: 1. The hours during which the court shall be open. 2. The duties of the secretary of the board, clerks, deputy-clerks, assistant clerks, stenographers, interpreters, attendants and employees; the manner of keeping records and papers, the collection and disposition of moneys and accounts thereof. 3. The forms and practices of the court, including forms of pleading and all matters of procedure not specifically provided for in this act. 4. The calendar practice and the designation of a part or parts of the court where special classes of cases shall be brought or tried. 5. The establishment of a system of conciliation whereby controversies may be submitted by consent of the parties to a justice of the court for informal hearing and decision without entry of judgment. 6. The establishment of a system of arbitration and the procedure thereof. Such rules shall be submitted to the presiding justices of the appellate division of the supreme court for the first and second departments, or to the justices presiding therein, and, when approved by them, shall have the force of law. EDITORIAL NOTES Source: MCA § 12 amended and rewritten, with some of its provisions transferred to MCC § 7, and with new matter added; from L 1901, ch 466 § 1375, Provisions for forms of pleadings and systems of conciliation and arbitration are new. Star (*) means read Not into HEADLINE in capitals. For explanation see MCC § 1. PRACTICE RULES PROPER Costs: regulating amount of security for (Gary 169 NYS 1051). Not applied: (Sakolski 50 Mis 151, 98 NYS § 9. Death or removal of justice not to affect proceedings. No process, action, judgment, execution or proceeding shall abate or be discontinued by reason of the death, removal from office or vacancy in office of any justice, but another justice shall proceed to hear, try, determine and give judgment in and upon the same, and upon all matters and things pending and undecided or not acted upon. § 10. Time and place of holding court. It shall be the duty of the commissioners of the sinking fund to provide a suitable place for holding court in each district in the city of New York; and more than one place in any district may be provided by them if the board of justices shall certify that the public convenience requires such additional places. The justices assigned by the board of justices shall hold court in one or more parts in each district as established, and on such days as fixed, by said board and at the places provided by the commissioners of the sinking fund. In each district in the boroughs of Manhattan and Brooklyn, and in the second district of the borough of The Bronx, on every day of the year except Saturdays, Sundays, legal holidays and during the months of July and August, at least one part of the court with a justice in attendance shall be open for the transaction of judicial business. During the months of July and August the court in each district shall be in session for at least two days in each week and shall try summary proceedings, actions for wages and, on good cause shown, other actions where the rights of the parties may be jeopardized by delay, and such other actions as the court may deem proper to be tried. EDITORIAL NOTES Source: MCA § 17 amended and rewritten; from L 1882, ch 410, § 1291; L 1901, ch 466, § 1371. Provisions of second sentence of MCA § 17 revised and made applicable to the Borough of Brooklyn and to the second district of the Borough of the Bronx (with two hours of holding court omitted), and classes of cases to be tried in July and August enlarged. Star (*) means read Not into HEADLINE in capitals. For explanation see MCC § 1. COURT HELD Private office: justice remained at on certain days, reading evidence, examining briefs, and deciding cases (*Bolte 97 AD 551, 90 NYS 499). § 11. Seals. The court in each district shall have an official seal on which shall be engraved the arms of the state of New York, the name of the court, the borough and the district. Such seals shall be furnished at the expense of the city of New York. EDITORIAL NOTES Source: MCA § 18 rewritten without substantial change; from L 1901, ch 466, § 1368. Star (*) means read Not into HEADLINE in capitals. For explanation see MCC § 1. § 12. Access to court houses; expenses of court, how paid. The justices of the court shall have access to and possession of the court houses. It shall be the duty of the board of aldermen of the city of New York and its several officers charged with duties in that behalf, to supply and pay for whatever may be necessary for the transaction of the business of said court and the justices thereof, to supply all proper accommodations, books, stationery and furniture, and to pay all salaries, compensation and expenses and disbursements herein authorized; and the board of estimate and apportionment shall annually include in its final estimate such sums as may be necessary to pay the same. EDITORIAL NOTES Source: MCA § 19 rewritten without substantial change; from L 1901, ch 466, § 1380. Star (*) means read Not into HEADLINE in capitals. For explanation see MCC § 1. § 13. Criminal and civil contempt. All of the provisions of the judiciary law relating to civil and criminal contempts shall apply to this court, except subdivision seven of section seven hundred and fifty-three of said law and except that the provisions of said law relating to sheriffs shall apply to marshals, subject to the provisions of section one hundred and fifty-one of this act. EDITORIAL NOTESSource: New. Supersedes MCA §§ 4-8g; from L 1882, ch 410, § 1288; CCP §§ 8-12, 14; 2 RS 278, § 10. Star (*) means read Not into HEADLINE in capitals. For explanation see MCC § 1. PROCEEDING TO PUNISH FOR CRIMINAL CONTEMPT PROPER Order to show cause: preliminary notice of charge in form of (Bowman 152 AD 690, 137 NYS 568). ACTS CONSTITUTING CIVIL CONTEMPTFalse representations: by attorney, acquiesced in by client, as to financial responsibility of client, to obtain stay of enforcement of judgment (Ludwig 187 NYS 325). § 14. Process; where service may be made. The court shall have power to send its process and other mandates in an action or special proceeding of which it has jurisdiction to any part of the city of New York for service or execution, and to enforce obedience thereto, and the power and authority of said court extends to the whole of said city of New York, except as otherwise expressly prescribed in this act. EDITORIAL NOTES Source: MCA § 9 rewritten without substantial change; from L 1901, ch 466, § 1368. Star (*) means read Not into HEADLINE in capitals. For explanation see MCC § 1. | SECTION CITED Not applied: (Henning 181 AD 859, 169 NYS 284). § 15. Conformity to supreme court practice. Except as otherwise provided in this act or in the rules, the practice, pleadings, forms and procedure in this court shall conform, as nearly as may be, to the practice, pleadings, forms and procedure existing at the time in like causes in the supreme court, any statutory limitations, heretofore enacted, to the contrary thereof notwithstanding. EDITORIAL NOTES Source: New. Supersedes MCA §§ 20, 239, 240. § 20 from L 1901, ch 466, § 1377. § 239 from CCP § 1380. § 240 from L 1882, ch 410, § 1381. Adopted from US Rev Stats 914, providing that the practice on the law side of the federal courts shall conform to the State practice. Insures the application to the Municipal Court of provisions of CCP notwithstanding § 3347 thereof, a section which has produced much conflict of authority. Star (*) means read Not into HEADLINE in capitals. For explanation see MCC_§ 1. SUPREME COURT PRACTICE FOL LOWED Action: delivery of summons for service deemed commencement only for purpose of tolling statute of limitations (Harkow 121 AD 194, 105 NYS 689). Answer: striking and entering judgment on motion (Cochran 192 NYS 199). .Appeal: amendment of pleading on (Maisch 134 AD 201, 118 NYS 908); from order, expressly provided for by MCC, no appeal from denial of motion to vacate order of arrest (*Leavitt 43 Mis 26, 86 NYS 495); modification of judgment at instance of respondent who did not take appeal in proper time unauthorized (Laforge 127 AD 143, 111 NYS 288). Bill of particulars: failure to file on demand, requiring notice of motion before order precluding defendant from giving testimony (Teitelbauf 100 Mis 103, 165 NYS 334); of defense (Voron & Chait 94 Mis 160, 147 NYS 779). Contempt: criminal, proceeding to punish for commenced by order to show cause (Bowman 152 AD 690, 137 NYS 568). Corporation: judgment against on note for failure to serve order for trial of issue (Duke 111 NYS 313), notice of intention to apply for judgment necessary (Blenderman 64 Mis 65, 117 NYS 897). Costs: imposition on "granting or denial" of motion "dismissal" equivalent to "denial" (*Porboner 97 Mis 376, 161 NYS 306); motion to compel giving security. for (*Chapman 115 NYS 160); offer of judgment by attorney, affidavit of authority required (Miller 131 AD 172, 115 NYS 253); requiring security from non-resident (Gary 103 Mis 257, 169 NYS 1051); tender of amount due as affecting recovery (Wagman 99 Mis 276, 164 NYS 28); where plaintiff prove indebtedness no greater than amount ten dered by defendant, expressly provided for by MCC (*Wagman 99 Mis 276, 164 NYS 28). Deposition: introduced in evidence, altho deponent party present at trial (Zlinkoff 171 NYS 228). Discontinuance: right (Levy 95 Mis 556, 159 NYS 902) absolute on payment of costs tho counterclaim interposed (Nichols 86 NYS 136). Equitable defense: not seeking affirmative relief court has jurisdiction (Kulerban Holding Corp 190 NYS 484). Examination before trial: adverse party (*Mitchell 94 Mis 270, 158 NYS 31; Scheidlinger 94 Mis 322, 158 NYS 27). Execution: against person, order of arrest necessary in action to foreclose lien on personal property. (Liederman 82 AD 541, 81 NYS 606); discharge of levy proper when undertaking on appeal given (Hyman 44 Mis 226, 88 NYS 1036). Foreign corporation: action against on cause of action arising outside state not maintainable by nonresident (Sommese 56 Mis 670, 107 NYS 630). Forma pauperis: prosecuting action not precluded by nonpayment of costs of former action (Johnson 164 NYS 23; Guttila 95 Mis 163, 158 NYS 773). Guardian ad litem: filing of bond by (Minai 167 NYS 308). Judgment: amendment by inserting true name of person served, tho amendment not allowed where person nonresident of New York city, court having no jurisdiction (Schallock 89 Mis 436, 152 NYS 225); amendment of date of entry to show entry subsequent to decision of motion for new trial (Maisch 134 AD 201, 118 NYS 908); amendment, tho power to amend limited by MCC (Lackner 112 AD 438, 98 NYS 376); by default, correction of defendant's name after entry (Corn 75 Mis 478, 133 NYS 447); confession (Connecticut Blower Co 106 Mis 623, 176 NYS 422); on motion where answer stricken (Cochran 192 NYS 199); on pleadings on motion authorized (Marine 139 AD 740, 124 NYS 504); summary on affidavit (*Paterno Const Co 191 NYS 517). Jury: omission to swear waived by failure to object (Arker 136 AD 871, 122 NYS 4). Limitations: saving action by delivery of summons to sheriff for service, expressly provided for by MCC (Sanger & Jordan 196 AD 55, 187 NYS 604); time to sue on undertaking on appeal (North Side Hoisting Co 94 Mis 167, 157 NYS 903). New trial: granting after entry of judgment and vacating judgment (Arker 136 AD 871, 122 NYS 4); motion based on newly discovered evidence, making and settlement of case necessary (Altmark 55 Mis 195, 105 NYS 205); order granting presumed to be on exceptions taken at trial when no ground specified (Pase 124 AD 891, 108 NYS 125). Notice of trial: time for mailing (Rethy 102 Mis 540, 169 NYS 235). Parties: misjoinder of defendants waived where no objection until trial (Ridley 105 Mis 52, 172 NYS 517); objection that plaintiff not real party in interest waived by failure to plead in abatement (Weinhardt 82 AD 627, 81 NYS 1042). Pleading: amendment to conform to proof (Maisch 134 AD 201, 118 NYS 908); defects disregarded where substantial right not affected (Cohen 85 Mis 59, 147 NYS 53); methods of testing sufficiency, expressly provided for by MCC (*Mutual Braid Co 106 Mis 494, 174 NYS 730). Reply to several defenses, expressly provided for by MCC (*Kern 109 Mis 173, 178 NYS 340). Service: of papers by mail (*Schallock 89 Mis 436, 152 NYS 225). Stay: for nonpayment of costs of former action (Wetzel 93 Mis 496, 157 NYS 297), expressly provided for by MCC (*McKown 60 Mis 98, 111 NYS 609). Summary judgment: under Rule 113 (Ritz Carlton [April 20, 1922] 67 NYLJ 235; Cochran [Feb 17, 1922] 66 NYLJ 1756; *Paterno Const Co 191 NYS 517). Transcript: of judgment, time for filing in county clerk's office limited to six years (Murphy 150 AD 460, 135 NYS 23). Trial: concession that issues of fact raised by evidence by failing to move for nonsuit or dismissal (Seeman 205 NY 514, rev 140 AD 272); postponement on ground of engagement of counsel, refusal of fifth application proper (O'Brien 84 NYS 536). Venue: action for penalty, expressly provided for by MCC (*Gormley 52 Mis 495, 102 NYS 692); trial in district where action brought unless transfer demanded (City of NY 100 Mis 537, 179 NYS 105). |