« PreviousContinue »
attorney, as the justice thinks proper, make an order, opening the default; allowing the defendant to appear and defend the action; and setting aside the judgment, or staying proceedings thereon. The justice may, in his discretion, impose, as a condition of making such an order, the payment by the defendant to the plaintiff of a fixed sum, not exceeding ten dollars, as costs. He may also require the defendant to give an undertaking to the plaintiff, in a sum fixed by the justice, with one or more sureties, to the effect that the defendant will pay the amount of any judgment, that may be rendered against him in the action. The justice may also direct that the judgment, and a levy, if any, made by virtue of an execution issued therenpon, stand as security for any judgment, which the plaintiff may ultimately recover before him. Id., 87. § 3129. Additional costs upon recovery of $100.
Iu an action brought in a justice's court of the city of Brooklyn, where the plaintiff, or a defendant inter. posing a counterclaim, recovers a judgment for one hundred dollars or more, the prevailing party, if he is entitled to costs in the action, recovers the following sums as costs, in addition to the costs allowed by title ninth of this chapter:
1. Where the adverse party fails to appear upon the return of the summons, or at the trial, seven dol. lars.
2. Where a trial is had, twelve dollars. Id., 22.
$ 3130. Id.; when defendant recovers judgment. A defendant, who recovers judgment in an action in a justice's court of the city of Brooklyn, wherein the come plaint demands judgment for one hundred dollars or more, or the recovery of one or more chattels, the value of which, as stated in the complaint, together with the damages claimed, if any, is one hundred dollars or more, recovers the following sums as costs, in addition to the costs allowed by title ninth of this chapter:
1. If the judgment was rendered without a trial, seven dollars.
2. If the judgment was rendered after a trial, ten dollars.
But this section does not apply to a case, where the defend. ant is entitled to the costs specified in the last section. Id., part of $ 3.
$ 3131. Costs in action by working woman.— In an action brought in a justice's court of the city of Brooklyn, to recover a sum of money, for wages earned by a female em ployee, other than a domestic servant; or for material furnished by such employee, in the course of her employment, or in or about the subject-matter thereof; or for both; the plaintiff, if entitled to costs, recovers the sum of ten dollars as costs, in addition to the costs allowed by title ninth of this chapter, unless the amount of damages recovered is less than ten dolJärs; in which case, the plaintiff recovers the sum of five dollars as such additional costs. Where the employee is the plaintiff in such an action, she is entitled, upon a settlenient thereof, to the full amount of costs, which she would have recovered, if judgment had been rendered in her favor, for the sum received by her upon the settlement. In such action brought in said court, if the plaintiff recover a judgment for a sum not exceeding fifty dollars, exclusive of costs, no property of the defendant shall be exempt from levy and sale, by virtue of an execution against property issued thereupon; and, if such an execution is returned wholly or partly unsatisfied, the clerk must, upon the application of the plaintiff, issue an execution against the person of the defendant for the sum remaining un. collected. A defendant arrested by virtue of an execution so issned against his person, must be actually confined in the jail and is not entitled to the liberties thereof; but he must be discharged after having been so confined fifteen days. After his discharge an execution against his person cannot be again issued upon the judgment, but the judgment creditor may enforce the judgment against property as if the execution, from which the judgment debtor is discharged, had been returned without his being taken.
$ 3132. Costs upon adjournment. -- Where an appli. cation is made for a second or subsequent adjournment of the trial of an action, brought in a justice's court of the city of Brooklyn, after it has been once adjourned, the justice may, in his discretion, require payment to the adverse party of a sum, not exceeding five dollars, besides disbursements, as a condition of granting the application. L. 1871, ch. 492, part of $ 3.
$ 3133. Application of other provisions. Holding court open.- Each justice of the peace of the city of Brooklyn is a justice of the peace of Kings county; and each provision of this act, relating to the proceedings before a justice of the peace of a town, applies to the proceedings before a justice of the peace of that city, except as otherwise specially prescribed in this title. Each of those justices must hold his court open, from nine o'clock in the morning, until three o'clock in the afternoon.
See L. 1849, ch. 125, $$ 35 and 36; L. 1850, ch. 102, 18; L. 1871, ch. 492 $8; L. 1873, ch. 863, part of $ 16.
3135. General requisites of mandates.
3158. Sheriff to act where execution of mandate is resisted. § 3134. Mode of application of certain provisions of this act.- Where a provision of this act, not con. tained in this chapter, is made applicable to proceedings before a justice of the peace, the application is subject to the qualification, that it does not include any thing, which is repugnant to any special provision of law, regulating the jurisdiction or powers of a jus. tice of the peace, or the proceedings before him. Where a provision, thus made applicable, relates to the filing of a paper in a court, or with a clerk, the paper must, in an action or special proceeding before a justice of the peace, be filed with the justice, unless he has a clerk appointed pursuant to law ; and where it confers a power upon a court or a judge, the provision, making it applicable to proceedings taken under this chapter, is to be construed, as conferring a like power upon the justice, before whom the action or special proceeding is brought. New.
§ 3136. General requisites of mandates.- A man date, issued by a justice of the peace, must be signed
by him, and may be without seal. It must be entirely filled up, at the time when it is delivered to an officer to be executed, so as to have no blank, either in the date thereof or otherwise ; except that there may be a blank in a subpoena for the name of any or all of the witnesses. A mandate, issued and delivered to an officer to be executed, contrary to this section, is void.
2 R. S. 267, 23 232 and 233 (2 Edm. 275). People v. Smith, 20 Johns. 63; Borrodaile v. Leek, 9 Barb. 611,
$ 3136. Reward to constable forbidden.-- A constable shall not ask or receive any money or other valuable thing from any person, as a consideration, reward, or inducement for omitting or delaying to arrest a person, or to take him to jail, or to sell property, by virtue of an execution, or to execute any other duty, pertaining to his office ; or any money or valuable thing, other than the fees expressly allowed to him by law, for exe cuting any duty pertaining to his office. Id., & 234,
§ 3137. Justice or constable not to pay claim, etc. A justice of the peace or constable shall not, directly or indirectly, buy, or be interested in buying, a bond, pote, or other demand or cause of action, for the purpose of bringing an action instituting a special proceeding before a justice, founded thereupon ; nor shall a justice or a constable, either before or after an action or a special proceeding is commenced, lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money or other valuable thing to any person, in consideration of, or as a reward for, or an inducement to, the placing or having placed in his hands, a debt or other demand or cause of action, for prosecution or collection. Id. , 8 235. $ 3138. Penalty. – A justice of the peace or constable who violates a provision of the last three sections, is guilty of a misdemeanor; and shall be punished ac cordingly. A conviction also operates as a forfeiture of his office. Id., & 236.
§ 3139. Violation of preceding sections a defence to action. It is a defence to an action, brought before
a justice of the peace, that the demand, upon which it is founded, was bought and sold, or received for prose. cution, contrary to the foregoing provisions of this title. In an action wherein such a defence is interposed, if the plaintiff, after being duly subpænaed as a witness, fails to attend, pursuant to the subpena; or if, upon the trial, or upon his examination as a witness by virtue of a commission, he refuses to answer any question pertinent to show a violation of either of those pro. visions ; the justice, besides punishing him, in a proper case, for his failure or refusal, must dismiss his complaint. The testimony, in such an action, of the plaint. jfi, or any other witness, is not evidence, in a criminal prosecution against him, for violating either of those provisions. Id., 83 237-242.
§ 3140. Docket-book to be kept by justice; entries therein.- A justice of the peace must keep a docketbook, in which he must enter:
1. The title of every action or special proceeding commenced before him.
2. The time when the summons, or the mandate for the cominencement of the special proceeding, was is. sued ; with a statement of the nature of the mandate, and a memorandum of each order of arrest, warrant of attachment, or requisition to replevy, granted by him.
3. The time when the parties appeared before him, either without process, or upon the return of the sum. mons, or of the mandate for the commencement of the special proceeding.
4. A concise statement of the substance of each oral pleading, or a memorandum of the filing of each writ. ten pleading:
5. Each adjournment; stating upon whose applica. tion, and to what time and place, it was made.
6. The issuing of a venire ; stating upon whose application it was issued, and the time and place of the return thereof.
7. The time when a trial was had ; and, if it was by a jury, the names of all the persons returned as hav. ing been notified to attend as jurors; stating who did not attend ; who attended ; and who were sworu.