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as an appeal from a judgment of the justice in an action to recover a sum of money, equal to the value of the animal or animals, and the proceedings thereupon are the same, except as otherwise prescribed in the next section. See L. 1867, ch. 814, part of 6.
§ 3105. Id. ; by claimant; stay of proceedings and delivery of possession. — An appeal from a final order, taken as prescribed in the last section, by the person answering, is not effectual for any purpose, unless the appellant files, with the notice of appeal, an order of the county judge, or, if he is absent from the county, of a justice of the supreme court, reciting that the appeal has been perfected, and that security has been given thereupon, as prescribed in this section, and di. recting a stay of proceedings upon the final order appealed from, and that the possession of the animal or animals seized be delivered to the appellant. The order can be made only where an undertaking is given by the appellant, as required for the purpose of perfecting an appeal from a judgment, and staying the execution thereof; and also an undertaking, in the same or another instrument, to the effect that, if the final order appealed from is affirmed, or if the appeal is dismissed, the appellant will pay all sums which the justice awards against him, upon the hearing after the determination of the appeal, as prescribed in the next section, not exceeding a sum specified therein ; which must be, at least, twice the amount of all the sums, which might be deducted from the proceeds of the sale, as prescribed in section 3092 of this act.
The sum must be fixed, and the undertaking must be approved, by the judge who grants the order. Upon filing the order with the justice, the appellant is forth with enti. tled to the possession of the animal or animals seized. See note to last section.
$ 3106. Proceedings upon affirmance.- If the final order appealed from is affirmed, upon an appeal taken by the person answering, the county court must appoint a time and place, at which the justice must fix the sums payable by the appellant, pursuant to his undertaking. The justice may adjourn the hearing to another place, and to another time, not exceeding
three days after the time so appointed. The justice must fix the sums so payable, as if a warrant for the sale of the animals seized had been returned, and the proceeds thereof paid to him by the constable, as prescribed in section 3092 of this act. The undertaking upon the appeal inures to the benefit of each officer, to whom any sum is payable, as prescribed in that section ; and with respect to any of those sums, the respondent is a trustee for the officer entitled thereto.
See note to 2 3104, ante. $ 3107. Limitation of action for seizing animals.Where an animal is seized, upon the ground that it was running at large, or was being herded or pastured, or was trespassing, contrary to the provisions of this title ; and the oflicer or other person making the seizure, immediately files his petition, and diligently prosecutes the same, as prescribed in this title ; an action to recover the animal so seized, or to recover damages for the seizure, or for any act subsequent thereto, must be commenced within one year after the cause of action acerues. Section 7, act of 1867.
$ 3108. Certain actions cannot be maintained. A person, to whom the precept was directed by his name, and who was personally served therewith, or a person who has appeared and answered in the special proceed. ing, or demanded the return of any animal seized, can. not maintain an action against the officer or other per. son seizing an animal, or a person acting by his command, or in liis aid, in a case specified in the last section. But, except as specified in this section, the owner of an animal seized or detained, under color of any provision of this title, may maintain an action to recover the animal, or its value, or damages for the seizure or detention, or for any unlawful act subsequent thereto, if, in fact, the animal was not, at the time of the seizure, running at large, or being herded or pastured, or tres. passing, as the case may be, as specified in the foregoing provisions of this title.
$ 3109. Where several animals are trespassing, damages are entire. Proceedings in such cases.
For the purpose of determining the damages sustained by the petitioner, where two or more animals are found simultaneously trespassing upon real property, owned or occupied by him, all the damage done by all the animals seized, is to be regarded as done by them jointly; and the petitioner's remedy therefor is entire, and must be enforced against all the animals, and the proceeds of the sale thereof. Where different persons, who are known, own different animals seized, the precept must be directed to all of them by their names. If one or more of the owners are known, and the others are unknown, and cannot be ascertained with reason. able diligence, the precept must be directed to each known owner, by his name, and, also generally to all persons having an interest in those animals, the owners of which are unknown. In a case specified in this section, a demand of the possession of an animal seized cannot be made, as prescribed in section 3097 or 3101 of this act, unless it is made with respect to all the animals seized, and by persons entitled to the pos. session of all of them. But a separate demand may be made, as prescribed in section 3098 of this act, by sach owner of one or more animals seized ; in which case, if possession is delivered to him, as prescribed in that section, the petitioner's remedy for his damages is the same, with respect to the animal or animals, of which possession is not so delivered, and against the proceeds of the sale thereof, as if those, whereof possession is so delivered, had not been trespassing upon the property.
New. Van Steenburgh v. Tobias 17 Wend. 562; Auchmuty v. Ham, 1 Den. 495 ; Partenheimer v. Van Order, 20 Barb. 479.
$ 3110. Proceedings in other cases, where there are different owners.—Where the petitioner does not allege, that the animals seized, were trespassing upon real property owned or occupied by him, and different persons own different animals seized, a separate special proceeding may be instituted, as prescribed in this title, against each owner, or against any two or more owners, with respect to the animals owned by him or them, Or the proceedings may be taken against all the owners jointly ; in which case, each person to whom the pre. cept is directed by his name, and each person having an interest in an animal seized, has the same right to
demand the possession of the animal owned by him, and the same right to answer separately, as if the special proceeding was against him separately; and the final order may be in favor of one or more of the persons so answering, with respect to the auimal or ani. mals owned by him or them, and for his or their costs; and against the remainder of the persons answering, or to whom the precept was directed, or for the sale of the remainder of the animals, in like manner, as if the former persons had not answered, or had not been named in the precept. But the person, first making & demand of the possession of any animal seized, must pay all the costs to the time of the demand; and a person, subsequently making a demand, is excused from the payment of any costs, except those which have accrued since the former demand.
§ 3111. Surplus where there are different owners.Where proceedings are taken jointly against different persons, who own different animals seized, as prescribed in either of the last two sections, the surplus, remain. ing in the justice's hands, must be distributed between them, in proportion to the value of the animals owned by each, to be determined by the justice. Any owner may claim separately his proportion of the surplus; and sections 3093 and 3094 of this act apply to a claim made, and to the disposition of the surplus arising, as prescribed in this section. New.
§ 3112. When one action, etc., supersedes any other.- Where two or more persons, or an officer and a private person, are authorized, by this title, to bring an action, or to seize an animal, and take the proceedings prescribed in this title for the disposition thereof, the commencement of an action, or the seizure of the ani. mal, by either of them, supersedes the right of any of the others to bring such an action, or to make such a seizure, with respect to the animal seized, or in question in the action. But the justice may, in his discretion, allow an officer or other person, who is interested in the recovery, or in the application of the proceeds of the sale, to appear in the action or special proceeding, for
the purpose of protecting his interest, and to take such part in the proceedings therein as the justice thinks proper. New.
$ 3113. Rights of officer when private person fails to prosecute.-Where a seizure is made by a private person, as prescribed in this title, and the possession of an animal seized is abandoned by him, without filing a pe. tition; or where an action, brought by a private person, as prescribed in this title, is settled or discontinued by the plaintiff; the officer, to whom a penalty is payable, as prescribed in section 3083 of this act, or in subdivi. sion fourth of section 3092 of this act, may, unless lie has assented to the abandonment, settlement, or discon. tinuance, maintain an action against the owner of the animal in question, to recover the penalty so payable to him; and, upon proof of the facts, which would have entitled the plaintiff in the former action, or the peti. tioner in the special proceeding, to recover, he is enti. tled to judgment accordingly. New.
$ 3114. Person having a special property deemed owner. When a person is, at the time of the seizure, entitled to the possession of an animal, as against the general owner thereof, by virtue of a special property therein, he is deemed, for all the purposes of this title, the owner thereof. New.
$ 3115. Agent may act for his principal. - The duly authorized agent of the owner or person entitled to the possession of an animal, as specified in the last section, may, in his own name, answer, make any demand, or take any cther proceeding, which the owner or person so entitled may take, as prescribed in this title.
Provisions specially relating to courts of justices of the
peace in the city of Brooklyn. Spo. 3116, Justice in sixth district must be an attorney
3117. Justices' jurisdiction in Brooklyn extended.