§ 2927. When and to whom constable must deliver chattel.

If the defendant neither excepts to the plaintiff's sureties, nor requires the return of the chattel, within the time prescribed for that purpose; or if he fails to procure the allowance of his undertaking; or if the plaintiff, after the defendant has excepted to his sureties, duly procures the allowance of his undertaking, the constable must, except in the case specified in the next section but one, immediately deliver the chattel to the plaintiff. If the plaintiff, after the defendant has excepted to his sureties, fails to procure the allowance of his undertaking; or if the defendant, after he has required the return of the chattel, procures the allowance of his undertaking, the constable must immediately deliver the chattel to the defendant.

From the last clause of Id., § 7.

See § 1339, Consol. Act.

§ 2928. Penalty for wrong delivery by constable.

A constable who delivers to either party, without the consent of the other, a chattel replevied by him, except as prescribed in the last section, or, by virtue of an execution issued upon a judgment in the action, forfeits to the party aggrieved the sum of one hundred dollars; and is also liable to him for all damages which he sustains thereby. See 1340, Consol. Act.

§ 2929. Claim of title by third person.

The provisions, regulating the proceedings, where a person, not a party, claims property which has been replevied, and the rights of such a person, and of the sheriff, as prescribed in sections 1709, 1710, 1711, and 1712 of this act, apply to a like case in an action, brought as prescribed in this article, substituting the constable for the sheriff; except that service of a notice and of a copy of the claimant's affidavit, upon the plaintiff's attorney, as prescribed in section 1709, must be made, either upon the plaintiff personally, or upon the attorney who appears for him before the justice; and that the sum specified in the undertaking, given by the plaintiff to the constable, need not exceed in any case, three hundred dollars.

From part of Id., § 9.

See 1341, Consol. Act.

§ 2930. Defendant may demand judgment for return. Where a chattel has been replevied, and the defendant has not required the return thereof, pending the action, as prescribed in the foregoing sections of this article, he may, in his answer, demand judgment for the return thereof, either with or without damages for the taking, withholding, or detention.

From part of Id., § 11.

See 1342, Consol. Act.

§ 2931. Proceedings in the action; action upon undertaking.

Section 1373, section 1731, excluding subdivision first thereof, and sections 1722, 1726, 1730. 1732, 1733, 1734, and 1735 of this act, substituting the constable for the sheriff. apply to the proceedings in an action in a justice's court to recover a chattel, and to an action against the sureties in an undertaking given therein, except as otherwise specially prescribed in this chapter.

From Id., § 10, as amended by ch. 616 of 1865 (6 Edm. 559), and remainder of § 11.

See § 1343, Consol. Act.

when

summons

not

personally

§ 2932. Proceedings served.

Where the defendant does not appear, and the summons has not been personally served upon him, and a chattel, or part of a chattel, to recover which the action is brought, has been replevied, and the proceedings thereupon have been duly taken, as prescribed in this article; the justice must proceed to hear and determine the action, with respect to that chattel or part of a chattel; or, if the action is brought to recover two or more chattels, with respect to those which have been replevied; in like manner and with like effect, as if the summons had been personally served.

From Id., § 12.

See § 1344, Consol. Act.

§ 2933. When action not affected by failure to replevy. Where the summons has been personally served upon the defendant, or where he appears, the justice must proceed to hear and determine the action, although the plaintiff has not required the chattel to be replevied, or the constable has not been able to replevy it. See § 1345, Consol. Act.

TITLE III.

Pleadings; including counter-claims, and proceedings upon answer

SEC. 2934. When issue to be joined.

2935. Pleadings.

2936. Complaint.

of title.

2937. What causes of action may be joined.

2938. Answer.

2939. Demurrer.

2940. General rules of pleading.

2941. Account, or instrument for payment of money.

2942. Court may require items to be exhibited.

2943. Immaterial variance to be disregarded.

2944. Amendment of pleadings.

2945. Counter-claims.

2946. Id.; where executor or trustee is a party.

2947. Consequence of neglect to plead counter-claim.

2948. The last section qualified.

2949. Judgment upon counter-claim.

2950. Judgment when accounts exceed $400.

2951. Answer of title.

2952. Undertaking thereupon.

2953. In what court new action to be brought.

2954. When action before justice to be discontinued.

2955. Effect of failure to give undertaking.

2956. When title comes in question on plaintiff's own showing.

2957. Pleadings in new action. Undertaking before justice, when ap

plicable.

2958. Answer of title as to one of several causes of action.

§ 2934. When issue to be joined.

At the place and within one hour after the time specified in the summons for the return thereof; or, where an order of arrest is granted and executed, within twelve hours after the defendant is brought before the justice; or, where no summons is issued, at the time when the parties voluntarily appear to join issue, the pleadings of the parties must be made and issue must be joined. Where both parties appear upon the return of the summons an issue must be joined before an adjournment is had, except when the defendant refuses or neglects to plead. Where an issue of fact or an issue of law is joined in a justice's court, or before a justice of the peace in the city of Brooklyn, or in any of the towns in the county of Kings, in which the judgment demanded by either party in his pleadings exceeds the sum of one hundred dollars; or, when in an action to recover a chattel or chattels, the value of which as fixed by either party in his pleadings or affidavit exceeds one hundred dollars, the defendant may, after issue joined and before an adjournment is granted upon his application, apply to the justice before whom the action is brought for an order removing the action into the county court of the county of Kings. Such an order must be granted upon the defendant filing with the justice an undertaking in a sum fixed by the justice, not exceeding twice the amount of the damages claimed or twice the value of the chattel or of all the chattels claimed as stated in the pleadings or affidavits, with one or more sureties, approved by the justice, to the effect that the defendant will pay to the plaintiff the amount of any judgment, including costs, that may be re

covered against him in the county court in the action so removed. From the time of the granting of the order the county court of Kings count has cognizance of the action, and the same shall be tried and determine 1 by said county court as if originally brought therein. The justice must forthwith deliver to the clerk of the county court all processes, pleadings and other papers in the action which must be filed, entered or recorded, as the case requires, in the latter office. Costs in an action so removed shall be the same as in an original action commenced in said county court.

From 2 R. S. 233, Part 3, ch. 2, tit. 4, § 47, as amended by ch. 25 of 1845 (2 Edm. 249).

Am'd by ch. 380 of 1893.

§ 2935. Pleadings.

The pleadings in a justice's court are:

1. The plaintiff's complaint.

2. The defendant's answer.

3. The defendant's demurrer to the complaint, or to one or more distinct causes of action, separately stated therein.

4. The plaintiff's demurrer to one or more counter-claims stated in the

answer.

From Co. Proc. § 64, sub. 1.

See § 1347, Consol. Act.

§ 2936. Complaint.

The complaint must state in a plain and direct manner, the facts constituting the cause of action.

From Id., sub. 3.

See § 1347, Consol. Act.

§ 2937. What causes of action may be joined.

The plaintiff may unite, in the same complaint, two or more causes of action, where they all arise out of

1. The same transaction, or transactions connected with the same subject of action; or

2. Contract, express or implied; or

3. Personal injuries, and injuries to property, or either.

But it must appear, upon the face of the complaint, that all the causes of action so united belong to one of the foregoing subdivisions of this section; that they are consistent with each other; that they require the same judgment; and, except as otherwise prescribed by law, that they affect all the parties. Where a cause of action, for which a defendant might be arrested, is united with a cause of action, for which he cannot be arrested, an execution against the person of the defendant cannot be issued upon the judgment.

See 1347, Consol. Act.

§ 2938. Answer.

The answer may contain a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof. It may also set forth, in a plain and direct manner, new matter, constituting one or more defenses or counter-claims.

From Co. Proc. § 64, sub. 4.

§ 2939. Demurrer.

In a case specified in subdivision third and fourth of section 2935 of this act, a party may demur to the pleading of the adverse party, or, if it

is a complaint, to one or more distinct and separate causes of action, where it is not sufficiently explicit to be understood; or where it does not state facts sufficient to constitute a cause of action, or counter-claim, as the case may be. If the court deems the demurrer well founded, it must permit the pleading to be amended; and if the party fails so to amend the defective pleading, or part of a pleading, demurred to, must be disre garded. If the court deems the demurrer not well founded, it must permit the party making it to plead over, at his election.

From Id., subs. 6 and 7.

§ 2940. General rules of pleading.

A pleading, except as otherwise prescribed in section 2951 of this act, may be oral or written. If it is oral, the substance thereof must be entered by the justice in his docket-book; if it is written, it must be filed by him, and a reference to it made in his docket-book. A pleading is not required to be in any particular form; but it must be so expressed, as to enable a person of common understanding to know what is intended.

From Id., subs. 2 and 5.

See § 2877.

See also § 1347, Consol. Act.

As to verification of pleadings in justices' courts, see ch. 414 of 1881.

§ 2941. Account, or instrument for payment of money. For the purpose of setting forth a cause of action, defence, or counterclaim, founded upon an account, or upon an instrument for the payment of money only, it is sufficient for the party to deliver the instru ment, or a copy of the account to the court, and to state that there is due to him thereupon, from the adverse party, a specified sum, which he claims to recover or to set-off.

From Id., sub. 9.

See § 1347, Consol. Act.

§ 2942. Court may require items to be exhibited. The court may, upon the request of either party, made when issue is joined, require the adverse party to exhibit his account or demand, or to state the nature thereof, as far as it is in his power so to do, at that or another 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.

From Id., sub. 14.

See § 1347, Consol. Act.

§ 2943. Immaterial variance to be disregarded.

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

From Id., sub. 10.

See § 1347, Consol. Act.

§ 2944. Amendment of pleadings.

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 to the adverse party, in consequence of the amendment or pleading over, an adjournment must be