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the person from whose property it was col

part of % 149. Dexter v. Broat, 16 Barb. 337 ; Ross v. Hicks, 11

32. Execution against the person; imprison. of judgment debtor. - For want of sufficient I property, whereon to levy, the constable must, xecution requires it, arrest the judgment debtor, vey him to the jail of the county. The keeper uil must thereupon keep the judgment debtor in , in all respects as if the execution was issued he supreme court, until the judgment and the the constable are paid ; or until the judgment s thence discharged, in due course of law ; ex. it if the execution has an indorsement, showing judgment was rendered in an action for a pen. orfeiture, given by a statute of the State, the hall not admit the judgment debtor to the liberhe jail. of 33 151 and 143. Barhydt v. Valk, 12 Wend. 145; Van Slyck 9 Johns. 146; Connors v. Joyce, 3 Lans. 315; Hollister u.

Wend. 639. 3. (Amended, 1883.) If a person committed to 'tue of an execution issued by a justice of the peace, the municipal court of Buffalo, or by virtue of an exesued by a county clerk on a transcript of a judgment

before a justice of the peace, or in the said muni't of Buffalo, has a family within the state for which es, he must be discharged, after remaining in cuser with or without being admitted to the jail libery days; otherwise he must be discharged after so

sixty days. amended. Albany, City. Court, L. 1884, ch. 122; L. 1883, ch.26 - Affidavit; discharge.-In order to procure a -, as prescribed in the last section, the prisoner ke, and deliver to the sheriff or jailer, an affi. ting the facts which entitle him thereto, ac.

the provisions of that section. Upon receive an affidavit the sheriff or jailer must fortnharge the prisoner from his custody. He must deliver the affidavit to the clerk of the county, file it in his office, without fee. and 154. Coman v. Merrill, 19 Johns. 277; Judd v. Fulton

Penalty for not discharging.–A sheriff ot o refuses to discharge the prisoner, upon re

jeiving such an affidavit, forfeits twenty-five dollars for each day, during which he detains the prisoner; to be recovered by the latter, in addition to any damages, which he sustains by reason of the false imprisonment. Id., & 155.

8 3036. Affidavit a defence to action for escape.The receipt of such an affidavit is a defence, to an action brought against the sheriff or jailer, by reason of the prisoner's discharge. Id., & 156.

$ 3037. Discharge not to affect judgment.-- Notwithstanding the discharge of a judgment debtor, as pre. scribed in the last four sections, the judgment remains valid as against his property; and a new execution may be issued accordingly, as if he had not been imprisoned. Id., % 157.

$ 3038. Execution upon judgment in action for a chattel.--In an action for a chattel, the possession of which has not been delivered to the prevailing party, an execution, for the delivery of the possession thereof to him, as well as for any damages recovered by him, may be issued by the justice ; unless the judgment has been docketed in the county clerk's office, as prescribed in title sixth of this chapter. It must be to the same effect, and executed in the same manner, as a like execution issued upon a judgment rendered in the supreme court; except that it must be directed generally to any constable of the county; and that the direction to satisfy a sum of money, out of the property of the judgment debtor, must be in the form prescribed in this title for a like direction, where an execution is issued by a jus tice of the peace, upon a judgment for a sum of money. Substitute for L. 1866, part of ch. 131. Connors v. Joyce, 3 Lans. 315.

$ 3039. Action against constable for not returning execution.-If a constable fails to return an execution within five days after the return day thereof, the party, in whose favor it was issued, may recover, in an action against the constable, the amount of the execution, if it was issued upon a judgment for a sum of money; or if it was for the delivery of the possession of a chattel, the value of the chattel, as specified in the judgment, together with the damages and costs awarded thereby

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and, in either case, with interest from the time when the judgment was rendered. Id., & 159,

§ 3040. Constable not to act under execution after return day.-A constable shall not levy upon or sel! property, or arrest a defendant, or take possession of a chattel, by virtue of an execution, after the time limited therein for its return, unless the execution has been renewed; nor shall he do any act under a renewed execution, after the expiration of the time for which it has been renewed. Id., & 161.

& 3041. Action against constable for money col. lected. Where money, collected by a constable upon an execution, is not paid over by him according to law, any person entitled thereto may maintain an action in his own name, upon the instrument of security given by the constable and his sureties; and may recover therein the sum so collected, with interest from the time when it was collected. Id., & 163. Bortel v. Ostrander, 15 How. 572.

$ 3042. Duty of constable whose term of office has expired.— A constable, to whom an execution is delipa ered, whose term of office expires on or before the return day thereof, must proceed thereupon in the same man. ner, as if his term of office had not expired; and he and his sureties are liable for any neglect of duty, with respect to the execution; or for money collected there. under, or for damages sustained by reason of any act, done by the constable, touching the execution, in the same manner,

and to the same extent, as if his term of office had not expired.

Id., && 285 and 286; see L. 1872, ch. 788 (9 Edm. 481). *$ 3043. Execution upon judgment docketed with county clerk.—Where a judgment, rendered by a justice of the peace, has been docketed with a county clerk, upon the filing either of a transcript from the justice's docket, or of a transcript from the clerk's docket of another county, the execution, to be issued thereupon by the county clerk, must be in the same form, and executed in the same manner, as an execution issued upon a judgment of the county court; except as other.

* See ante, 55 3017, 1307.

wise prescribed in section 1367 of this act; and except, also, that, where the judgment is for a sum less than twenty-five dollars, exclusive of costs, the direction to satisfy the judgment out of the real property of the judgment debtor must be omitted. In that case the provisions of this act, relating to the satisfaction of an execution out of the judgment debtor's real property, are not applicable thereto.

Code of Proc., 264, subd. 13. Ginochio v. Figari, 2 Abb. 186; Leland Smith, 11 Abb. N. 8. 231 ; 3 Daly, 309.


Appeals. ARTICLE 1. Appeals generally.

2. Appeal where a new trial is not had in the appellate court 3. Appeal for a new trial in the appellate court.


Suc. 3044. Justice's judgment reviewed by appeal.

3045. Who may appeal. To what court appeal to be taken.
3046. Appeal ; when and how taken,
3047. Service of notice upon justice, payment of costs and for
3048. Service of notice upon respondent.
3049, Amendment when allowed.
3050. Undertaking to stay execution upon judgmente
30:1. Proceedings; how stayed.
3052. Id.; when justice is dead, etc.
3053. Return.
3054. Id.; when justice has gone out of office,
3055. Further return; how compelled.
3056. Id.; when justice is dead, etc.
3057. Proceedings when error in fact is alleged,
3058. Restitution upon reversal.
3059. Setting off costs and recovery.
3060. Certain sums may be included in disbursements.

3061. Judgment-roll. 8 3044. Justice's judgment reviewed by appeal The only mode of reviewing a judgment, rendered by a justice of the peace in a civil action, is by an appeal, as prescribed in this title.

Code of Proc., part of $ 351. Schneider v. Armstrong, 1 Sheldon, 379; Striker v. Mott, 6 Wend. 465; Fitch v. Devlin, 15 Barb. 47: Hubbard o. Chapin, 26 How. 407; Nellis r. Turner, 4 Den. 553; Haulenbeck v. Gil bes, 7 Abb. 421 ; 2 Hilt. 239; Pearson v. Lovejoy, 53 Barb. 407 ; 35 How. 193; Brown v. Jones, 1 Hilt. 204 ; 3 Abb. 80 ; People ex rel. Robinson, How. 534 ; 29 Barb. 77 ; People ex rel. v. Rensselaer Co. Judge, 13 How 398; Douglass v. Reilly, 6 Week. Dig. 148; People ex rel. Oliver, 66 Bart. 070: Collier 0. Van Hoesen, 6 Week. Dig. 49,

§ 3045. (Amended, 1895.] Who may appeal; to what court appeal to be taken. An appeal may be taken by any party aggrieved by the judgment. Except where the judgment is rendered by a justice of the peace of the city of Buffalo, the appeal must be to the county court of the county where the judgment was rendered. In effect Jan. 1, 1896 ; L. 1895, ch. 946.

Code of Proc., part of 22 325 and 352; Mattison v. Jones, 9 How. 152; Jones v. Owen, 5 Hun, 339; Glassner v. Wheaton, 2 E. D. Smith, 352; Robbins r. Codman, 4 id. 315; Slaman v. Buckley, 29 Barb. 289; Bissell v. Marshall, 6 Johns. 100; see Kohlbrenner v. Elsheimer, 19 Hun, 88.

$ 3046. (Amended, 1882.] Appeal ; when and how taken. -An appeal must be taken within twenty days after the entry of the judgment in the justice's docket; except that, where a defendant appeals from a judgment rendered in an action, wherein he did not appear, and the summons was not personally served upon him, the appeal may, be taken within twenty days after personal service upon him, on the part of the plaintiff, of written notice of the entry of the judgment; but not after the expiration of five years from the entry of the judgment. An appeal is taken by serving upon the justice by whom the judgment was rendered, and upon the respondent, a written notice of appeal, subscribed either by the appellant, or by his attorney in the appellate court.

Code of Proc., part of a 353 and 354. Thomas v. Thomas, 18 Hun, 481; Young v. Whitcombe, 46 Barb. 615; Fuchs v. Pohlman, 2 Daly, 210; Purdy v. Harrison, 6 N. Y. Leg. Obs. 393; 1 C. R. 54 ; Tullock v. Brad show, 7 N.Y. Leg. Obs. 318; Seymour v. Judd, 2 N. Y. 464; Elias v. Bag cock, 12 Abb. N. S. 288; Pearson v. Lovejoy, 53 Barb. 407; 35 How. 193; Miller v. Perine, i Hun, 620; People ex rel. Eldridge, 7 IIow. 108; Van Hensen v. Kirkpatrick, 5 id. 422 ; Southard v. Phillips, 7 Hun, 18; Grise wold_”. Van Deusen, 2 E. D. Smith, 178; Eldridge v. Underhill, 17 Hun, 241; Partridge v. Thayer, 2 Sandf. 227; People ex rel. Monroe, 3 Wend, 426; Hall v. Sawyer, 47 Barb. 116; Andrews v. Long, 19 Hun, 303; reversed on other grounds, 9 Week. Dig. 513; Burrow v. Norton, 2 Hun, 550; 48 How. 132.

$ 3047. Service of notice upon justice; payment of costs and fee.-Service of the notice of appeal upon the justice, must be made by delivering it to him personally, or to his clerk, appointed pursuant to law; but if the justice is dead, or if neither he nor his clerk can, after reasonable diligence, be found within the county, service of the notice upon the justice may be made by delivering it to the clerk of the appellate court. Unless the justice is dead, the appellant must, at the time of serving the notice, pay to the person to whom it is de. livered the costs of the action, included in the judgment,

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