also, in its discretion, require, as a condition of allowing an amendment, the payment of costs to the adverse party.

Id., subd. 11. Doughty v. Crozier, 9 Abb. 411; Bigelow v. Dunn, 36 How. 120; 53 Barb. 570; Fulton v. Heaton, 1 id. 552; Aggreda v. Faulberg, 3 E. D. Smith, 178: Loyd v. Fox, 1 id, 101 Lapham v. Rice, 55 N. Y. 472: Turck v. Richmond, 13 Barb. 533; Hilliard v. Austin, 17 id. 141; Stern v. Drinker, 2 E. D. S. 401; Glass v. Keulsen, 3 Abb. 100; Walsh v. Cornett, 17 Hun, 27; Smith e. Milten, 13 How. 325; White v. Stevensen, 4 Denio, 193; Leonard v. Foster, 7 Hun, 464; Wood v. Shultis, 4 id. 309; 6 T. & C. 557; Gilmore v. Barnett, 20 Hun, 514; Birdsall v. Fuller, 11 id. 204; Lowe v. Rammell, 5 Daly, 17; Gilmore v. Jacobs, 48 Barb. 336; Webster v. Hopkins, 11 How. 140; Jaycox Pinney, 62 Barb. 344: Bull v. Colton, 22 id. 94; Waldheim . Sichel,1 Hilt. 45; Wooley v. Wilber, 4 Denio, 570; Babcock v. Lipe, 1 id. 139; Colvin . Corwin, 15 Wend. 557; Tattersall v. Hass, 1 Hilt. 56; Russell v. Ruckman, 3 E. D. Smith, 419; Price v. Peters, 15 Abb. 197; Hall v. Olney, 65 Barb. 27; Ryan v. Lewis, 5 T. & C. 662; 3 Hun, 429; Leonard v. Foster, 7 id. 464; Andrews v. Thorp, 1 E. D. Smith, 615; Monteith v. Cash, id. 412; McGinnis . Mayor of New York, 6 Daly, 416.

$2945. Counterclaims. - Sections 501 and 502 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.

Substituted for 2 R. S. 234, 50 (2 Edm. 250, 251). McGenty v. Herrick, 5 Wend. 240; Chaffee v. Cox, 1 Hilt. 78; Culver . Barney, 14 Wend. 161; Sergeant v. Holmes, 3 Johns. 428; Williams v. Bitner, 1 Lans. 200; Smith v. Burke, 10 Johns. 110; Greenleaf v. Low, 4 Den. 168; King v. Fuller, 3 Cai. 152.

2946. Id.; where executor or trustee is a party. Sections 505 and 506 of this act apply to a counterclaim in an action against a person sued in a representa. tive capacity, or in favor of an executor or administra tor, except that the defendant cannot take judgment against the plaintiff, upon a counterclaim, for a sum exceeding two hundred dollars.

Id., 22 55 and 56.

§ 2947. Consequence of neglect to plead counterclaim. 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 thereto through or from him, are forever thereafter precluded from maintaining an action to recover the some, or any part thereof.

Id., 57.

2948. The last section qualified. 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

recovers.

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 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.

Id., 58, amended; L. 1840, ch. 317 (2 Edm. 252).

Where a

2949. Judgment upon counterclaim. counterclaim is established, which equals the plaintiff's demand, the judgment must be in favor of the defend ant. 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 defend ant, either:

1. Set off so much of the counterclaim as is sufficient to satisfy 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 plaint iff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel.

Id., 52, 53, and part of § 58.

§ 2950. Judgment when accounts exceed $400. -

Where, upon the trial of an action, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars, judgment of discontinuance must be rendered against the plaintiff, with costs.

Id., 54. Lamoure v. Caryl, 4 Den. 370; Parker v. Eaton, 25 Barb.122; Glackin v. Teller, 52 id. 147.

$2951. Answer of title. — 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 question. 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.

Code Proc., 8 55. Sage v. Barnes, 9 Johns. 365; Hinds v. Page, 6 Abb. N. S. 58; Weeks v. Stroble, 36 How. 123; Shull v. Green, 49 Barb. 311; 34 How. 418; Houghtaling v. Houghtaling, 5 Barb. 379; Tuthill v. Clark, 11 Wend. 642; Brotherton v. Wright, 15 id. 237; Adams v. Rivers, 11 Barb. 390; Brown v. Schofield, 8id. 239; Bellows v. Sackett, 15 id. 96; Fred. & S. Pl. R'd Co. v. Wait, 27 id. 214; Boyer v. Schofield, 2 Keyes, 628; Fleet v. Youngs, 7 Wend. 291; Heintz v. Dillinger, 28 How. 39; Hinds v. Paige, 6 Abb. N. S. 58; Hawkins v. Peterson, 9 Week. Dig. 408; Althouse v. Rice, 4 E. D. Smith, 347; Ryan v. Harrington, 9 Hun, 520; Rathbone v. McConnell, 21 N. Y. 466; s. c., 20 Barb. 311; O'Reilly v. Davies, 4 Sandf. 722; Doolittle v. Eddy,7 Barb. 74; Launitz v. Barnum, 4 Sandf. 637; Ehle v. Quackenboss, 6 Hill, 537; Pierrett v. Moller, 3 E. D. Smith, 574: Alle man v. Day, 49 Barb. 641; O'Donnell v. Brown, 3 Lans. 474: Smith v. Mitten, 13 How.325; Wetter v. Blodget, 4 N. Y. Leg. Obs. 263; Whiting v. Dudley, 19 Wend. 373; Randall v. Crandall, 6 Hill, 342; Kelly v. N. Y. & Manhattan R. R. Co., 19 Hun, 363; Heath. Barmour, 53 Barb. 444; s. C., 50 N.Y. 302; Little v. Devin, 34 id. 452; Main v. Cooper 26 Barb. 468; s. C., 25 N. Y. 180; Haley v. Wheeler, 8 Hun, 569; Storms v. Snyder, 10 Johns. 108; Smith v. Riggs, 2 Duer, 622; Hardrop v. Gallagher, 2 E. D. S. 523; Clapman v. Swan, 65 Barb. 210; Main v. Cooper, 25 N. Y. 180; Snyder v. Beyer, 3 E. D. Smith, 235.

-

$2952. Undertaking thereupon.- - In the case speci. fied 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 comply with the undertaking, the sureties are liable thereupon, to an amount not exceeding two hundred dollars.

Code of Proc., part of 3 56, amended. Lalliette v. Van Keuren,7 How. 409; Wiggins v. Tallmadge, id. 404; Davis v. Jones, 4 id. 340; Randall v. Crandall, 6 Hill, 342; Adams v. Rivers, 11 Barb. 390; Koon v. Mazu zan, 6 Hill, 44; Thompson v. Blanchard, 3N. Y. 335; Seacord v. Morgan, 4 Abb. N. S. 249; 35 How. 487; 3 Keyes, 636; 17 How. 394; Roberts v. Donnell, 31 N. Y. 446; 1 Abb. N. S. 4.

§ 2953. In what court new action to be brought.The court in which a new action is to be brought, as prescribed in the last section, is the supreme court, or the county court of the justice's county, at the plaintiff's election; except that, where the justice is a justice of the peace of the city of Buffalo, it is the superior court of Buffalo.

Id., 56. Kundolf v. Thalheimer, 12 N. Y. 593.

2954. When action before justice to be discontinued. Upon the delivery of the undertaking to the justice, the action before him is discontinued, and each party must pay his own costs. The costs so paid by either party must be allowed to him, if he recovers costs in the new action, to be brought as prescribed in the last two sections. If the plaintiff fails to deposit with the justice a summons and complaint in the new action, before the expiration of twenty days after the delivery of the undertaking, the defendant may maintain an action against the plaintiff to recover his costs before the justice.

Id., 57. Little v. Denn, 24 N. Y. 452; 1 Keyes, 235; 34 How. 68.

2955. Effect of failure to give undertaking. If the undertaking is not delivered to the justice, he has jurisdiction of the action, and must proceed therein; and the defendant is precluded, in his defence, from drawing the title in question.

Code of Proc., 58.

§ 2956. When title comes in question on plaintiff's own showing. If, however, it appears, upon the trial, from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint, with

costs, and render judgment against the plaintiff accordingly.

Id., 59. Bowyer v. Schofield, 1 Abb. Ct. App. Dec. 177; Nixon v Jenkins, 1 Hilt. 318; Bellows v. Sackett, 15 Barb. 96; Adams v. Beach, 6 Hill, 271; Koon v. Mazuzan, id. 44; Browne v. Scofield, 8 Barb. 239; Babcock v. Lamb, 1 Cow. 238; Saunders v. Wilson, 15 Wend. 338; Dewey v. Bordwell, 9 id. 65; Alleman v. Dey, 49 Barb. 641; Striker v. Mott, 6 Wend. 465; Gage v. Hill, 43 Barb. 44; Hastings v. Glenn, 1 E. D. S. 402; Eagle v. Swayze, 2 Daly, 140; Main v. Cooper, 25 N. Y. 180; Nichols v. Bain, 42 Barb. 353; 27 How. 286; Taylor v. Scoville, 54 Barb. 34; Balja v. Rawley, 37 How. 120; Heintz v. Dellinger, 28 id. 39; 42 Barb. 363; Clow v. Van Loan, 4 Hun, 184; Ryan v. Harrigan, 9 id, 520.

$2957. Pleadings in new action. Undertaking before justice, when applicable.-In the new action, to be brought after an action before a justice is discontinued, by the delivery of an answer and an undertaking, as prescribed in the last six sections of this act, the plaintiff must complain for the same cause of action only, upon which he relied before the justice; and the de fendant's answer must set up the same defence only, which he made before the justice. If the action is to recover a chattel, which was replevied in the justice's court, each undertaking, given in the justice's court, continues to be valid in, and is applicable to, the new action.

Code of Proc., 8.60. Brotherton v. Wright, 15 Wend. 237; Tuthill v. Clark, 11 id. 642; Wendell v. Mitchell, 5 How. 424; Cusson v. Whalon, id. 302; McNamara v. Bitely, 4 id. 44; 2 C. R. 42; People ex rel. v. Albany, 19 Wend. 123; Wiggins v. Tallmadge, 7 How. 404; Brown v. Brown, 6 N. Y. 106; 6 How. 320; Pugsley_v. Kesselburgh, 7 id. 402; 10 N. Y. 420; Dorman v. Lang, 3 How. 59; Flora v. Carbean, 38 N. Y. 111; Cly le Plank R'd Co. v. Baker, 12 How. 371; 22 Barb. 323; Morss v. Salisbury, 48 N. Y. 637; Heath v. Barmour, 35 How. 1; 53 Barb. 444; 50 N. Y. 302; Hall v. Hodskins, 30 How. 15.

$2958. Answer of title as to one of several causes of action. Where, in an action before a justice, the plaintiff has two or more causes of action, and the defence, that the title to real property will come in question, is interposed as to one or more, but not as to all of them; the defendant may deliver an answer and undertaking as prescribed in sections 2951 and 2952 of this act, with respect to the cause or causes of action only, in which title will so come in question. Whereupon the justice must discontinue the action as to those causes of action only; the plaintiff may commence & new action therefor in the proper court; and the origi nal action must proceed as to the other causes.

Code of Proc., part of 62.