rendered in an action, or a final order is made in a special proceeding, pending before him, he must previously make a written order, reciting the fact, and directing the action or special proceeding to be continued before another justice of the same town or city, named in the order.

3151. Id.; when justice is a witness.

If, before an issue of fact is joined in an action or special proceeding, the defendant, or, where he has not been arrested, his attorney, presents to the justice satisfactory proof, by affidavit, that the justice, before whom the action or special proceeding is pending, is a material witness for the defendant, without whose testimony he cannot safely proceed to trial, setting forth therein the particular facts and circumstances. which he expects to prove by him, the iustice must forthwith make a written order, directing the action or special proceeding to be continued before another justice of the same town or city, named in the order.

From 2 R. S. 229, Part 3, ch. 2, tit. 4, part of § 21 (2 Edm. 245); also 118 of the same title, as amended by ch. 243 of 1838, and ch. 334 of 1875.

§ 3152. Proceedings upon transfer.

Where an order is made, as prescribed in either of the last two sections, the constable must forthwith take it, and all other papers in the action, with the body of the defendant, if he is under arrest, before the justice named in the order. The plaintiff or petitioner must forthwith appear before that justice, who must take cognizance of the action or special proceeding, and must proceed therein as if it had been commenced before him. Costs, recovered in the action or special proceeding, include the fees allowed by law, for services performed by the constable and the justice, before the transfer, together with the fees allowed by law, for the proceedings before the justice to whom the cause is transferred.

From Id.

§ 3153. Penalty for not paying over money.

A justice of the peace, who neglects or refuses, within a reasonable time after demand, to pay any money, collected by him in his official capacity, to the person entitled thereto, is guilty of a misdemeanor, and shall be punished accordingly. A conviction also operates as a forfeiture of his office.

From Id., 259.

§ 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.

From 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 re

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pelled 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.

From 2 R. S. 229, §§ 265 and 267.

8 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.

From Id., §§ 271 and 272.

See § 2885.

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.

From Id., § 273.

See § 2885.

§ 3158. Sheriff to act where execution 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.

From ch. 69 of 1845.

See 88 104-106.

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 Hudson, 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 I. 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 certain qualifications.

3160. Certain sections not to apply to New York city court; who 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.

§ 3159. 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 marine 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.

From ch. 629 of 1872, § 2.

§ 3160. 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 nineteen 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 marine 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 has 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 section thirty-two hundred and sixty-eight and thirty-two hundred and sixty-nine of this act.

(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.)

Am'd by ch. 954 of 1896.

Am'd by ch. 515 of 1902. In effect Sept. 1, 1902,

See § 1262, Consol. Act.

§ 3161. 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 538 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 1219 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.

From ch. 479 of 1875, §§ 17, 50 and 51; ch. 629 of 1872, §§ 5 and 14; ch. 545 of 1874. § 2.

§ 3162. 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

and it must, in addition to the

which the notice of the trial is given matters specified in section 977 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.

§ 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 a 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 judgment debtor was released, had been returned without his being taken.

From ch. 479 of 1875, last clause of § 10.

See 1246, Consol. Act.

§ 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.

See 1265, Consol. Act.