the death of the grantor, the person appointed is presumed to have renounced the appointment; and if a guardian is afterwards duly appointed by a surrogate's court, the presumption is conclusive. § 2852. Where a will, containing the appointment of a guardian, is admitted to probate, the person appointed guardian must, within thirty days thereafter, qualify as prescribed in section two thousand five hundred and ninety-four of this act; otherwise he is deemed to have renounced the appointment. But the surrogate may extend the time so to qualify, upon good cause shown, for not more than three months. And any person interested in the estate may, before letters of guardianship are issued, file an affidavit setting forth with respect to the guardian, so appointed, any fact which is made by law an objection to the issuing of letters testamentary to an executor. Sections two thousand six hundred and thirty-six to two thousand six hundred and thirty-eight of this act, both inclusive, apply to such an affidavit and to the proceedings thereupon. A person appointed guardian by will may, at any time before he qualifies, renounce the appointment by a written instrument, under his hand, filed in the surrogate's office. 2853. Where a guardian of an infant's person or property has been appointed by will or by deed, the infant, or any relative or other person in his behalf, may present, to the surrogate's court in which the will was admitted to probate; or to the surrogate's court of the county in which the deed was recorded; a written petition, duly verified, setting forth, either upon his knowledge, or upon his information and belief, any fact, respecting the guardian, the existence of which, if it was interposed as an objection to granting letters testamentary to a person named as executor in a will, would make it necessary for such a person to give a bond, in order to entitle himself to letters; and praying for a decree, requiring the guardian to give security for the performance of his trust; and that he may be cited to show cause why such a decree should not be made. Upon the presentation of such a petition, and proof of the facts therein alleged, to the satisfaction of the surrogate, he must issue a citation accordingly, Upon the return of the citation, a decree requiring the guardian to give security may be made, in the discretion of the surrogate, in a case where a person so named as executor; can entitle himself to letters testamentary only by giving a bond; but not otherwise. 2854. The security to be given, as prescribed in the last two sections, must be a bond to the same effect, and in the same form, as the bond of a general guardian, appointed by the surrogate's court. Each provision of this chapter, applicable to the bond of such a guardian, and to the rights, duties, and liabilities of the parties thereto, or any of them, including the release of the sureties, and the giving of a new bond; applies to the bond 30 given, and the parties thereto. 2855. Upon the petition of the ward, or of any relative or other person in his behalf, the surrogate's court having jurisdiction to require security, as prescribed in the last three sections, may, at any time, in the discretion of the surrogate, make an order, requiring a guardian, appointed by will or by deed, to render and file an inventory and account, in the same form, and verified in the same manner as the inventory and account required to be filed annually by a guardian appointed by a surrogate's court, as prescribed in article second of this title. The order may also require such an inventory and account to be filed, in the month of January of each year thereafter. Sections two thousand eight hundred and forty-two to two thousand eight hundred and forty-five of this act, both inclusive, apply to such an inventory and account, and to the filing thereof, as if the guardian had been appointed by the surrogate's court. 2856. The surrogate's court, having jurisdiction to require security, may compel a judicial settlement of the account of a guardian, appointed by will or by deed, in any case where it may compel a judicial settlement of the account of a guardian appointed by it; and the proceedings to procure such a settlement are the same, as if the guardian had been so appointed. § 2857. A decree, made upon a judicial settlement of the account of a guardian appointed by will or by deed, as prescribed in this article, or the judgment rendered upon appeal from such decree, has the same force, as a judgment of the supreme court to the same effect, 2858. Upon the petition of the ward, or of any relative or other person in his behalf, the surrogate's court, having jurisdiction to require security from a guardian appointed by will or by deed, may remove such a guardian, in any case where a testamentary trustee may be removed, as prescribed in title sixth of this chapter; and the proceedings upon such a petition are the same, as prescribed in that title for the removal of a testainentary trustee. Where a citation is issued, upon a petition for the removal of such a guardian, he may be suspended from the exercise of his powers and authority as if he had been appointed by the surrogate's court. § 2859. A guardian appointed by will or by deed, may be allowed to resign his trust, by the surrogate's court, having jurisdiction to require security from him. The proceedings for that purpose, and the effect of a decree made thereupon, are the same, as where a guardian appointed by the surrogate's court presents a petition, praying that his letters may be revoked, as prescribed in article first of this title. § 2860. Where a sole guardian, appointed by will or by deed, has been, by the decree of the surrogate's court, removed or allowed to resign, a successor may be appointed by the same court, with the effect prescribed in section two thousand six hundred and five of this act; unless such an appointment would contravene the express terms of the will or deed. CHAPTER ΧΙΧ. COURTS OF JUSTICES OF THE PEACE, AND PROCEED. INGS THEREIN. TITLE I. JURISDICTION AND GENERAL POWERS. TITLE II. COMMENCEMENT OF ACTION; APPEARANCE OF PARTIES; PROVISIONAL REMEDIES. TITLE III.-PLEADINGS; INCLUDING COUNTERCLAIMS, AND PROCEEDINGS UPON ANSWER OF TITLE. TITLE IV. PROCEEDINGS BETWEEN THE JOINDER OF ISSUE AND THE TITLE X.-ACTION OR SPECIAL PROCEEDING, RELATING TO AN ANIMAL STRAYING UPON THE HIGHWAY, TITLE TITLE XI.-PROVISIONS SPECIALLY RELATING TO COURTS OF JUSTICES OF TITLE I. Jurisdiction and general powers. 2861. Justice's jurisdiction must be § 2868. Justices to hold courts; general powers. 2869. In what town, etc., action must 2870. Criminal contempts. § 2861. A justice of the peace has such jurisdiction in civil actions and special proceedings, as is specially conferred upon him by statute, and no other. § 2862. Except as otherwise prescribed in the next section, a justice of the peace has jurisdiction of the following civil actions: 1. An action to recover damages upon or for breach of a contract, express or implied, other than a promise to marry, where the sum claimed does not exceed two hundred dollars. 2. An action to recover damages for a personal injury, or an injury to property, where the sum claimed does not exceed two hundred dollars. 3. An action for a fine or penalty, not exceeding two hundred dollars. 4. An action upon a bond conditioned for the payment of money, where the sum claimed to be due does not exceed two hundred dollars; the judgment to be rendered for the sum actually due. Where the sum secured by the bond is to be paid in instalments, an action may be brought for each instalment, as it becomes due. 3. An action upon a surety bond, taken, by any justice of the peace. 6. An action upon a judgment rendered in a court of a justice of the peace, or in a district court of the city of New York, or in a justices' court of a city, being a court not of record. 7. An action to recover one or more chattels, with or without damages for the taking, withholding, or detention thereof, where the value of the chattel, or of all the chattels, as stated in the affidavit made on the part of the plaintiff, does not exceed two hundred dollars. § 2863. [am'd 1882.] But a justice of the peace cannot take cognizance of a civil action, in either of the following cases: 1. Where the people of the state are a party, except for one or more fines or penalties not exceeding two hundred dollars. 2. Where the title to real property comes in question, as prescribed in title third of this chapter. 3. Where the action is to recover damages for an assualt, battery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution, or where it is brought under sections 1837, 1843, 1868, 1902, or 1969 of this act. 4. Where, in a matter of account, the sum total of the accounts of both parties proved to the satisfaction of the justice, exceeds four hundred dol lars. 5. Where the action is brought against an executor or administrator, as such. § 2864. A justice of the peace has also jurisdiction to render judgment, upon the confession of a defendant, as prescribed in title sixth of this chapter, where the sum confessed does not exceed five hundred dollars. § 2865. [am'd 1882.] An action, cognizable by a justice of the peace, may be brought by or against a corporation; by or against a natural person in his own right; by or against a town or county officer in his official character; or by an executor, administrator, trustee of an express trust, or a receiver in supplementary proceedings. § 2866. A justice of the peace, who is an innholder or tavern keeper in fact, has no power or jurisdiction under any provision of this chapter; but if a judgment has been actually rendered by him, before he became so disqualified, he may give a transcript thereof, or issue execution thereupon, or satisfy the judgment, upon payment thereof. 2867. A justice of the peace, who is a member of the senate, or assembly, is not obliged to take cognizance of a civil action or special pro ceeding; but he may take cognizance thereof, in his discretion. § 2868. A justice of the peace must hold, within his town or city, a court for the trial of any action or special proceeding, of which he has juris. diction, brought before him. He must hear, try, and determine the same, according to law and equity; and for that purpose, where special provision is not otherwise made by law, the court is vested with all the necessary powers possessed by the supreme court. § 2869. An action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except in one of the following cases: 1. Where the defendant has absconded from his residence, it may be brought before a justice of the town or city in which the defendant, or a portion of his property, is at the time of the commencement of the action. 2. Where the plaintiff is not a resident of the county, or if there are two or more plaintiffs, where all are non-residents thereof, it may be brought before a justice of the town or city, in which the plaintiff, or either of the plaintiffs, or his attorney, is at the time of the commencement of the action. 3. Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city, in which he is at the time of the commencement of the action. 4. Where it is specially prescribed by law, that a particular action may be brought before a justice of the town, city, county, or district, where an offence was committed, or where property is found. A defendant designated in section two thousand eight hunered and seventy-nine, section two thousand eight hundred and eighty, or section two thousand eight hundred and eighty-one of this act, is deemed, for the purposes of this section, a resident of the town or city where the person, to whom a copy of the summons is delivered, resides. § 2870. A justice of the peace has power to punish, for a criminal contempt, a person guilty of either of the following acts: 1. Disorderly, contemptuous, or insolent behavior towards him, while engaged in the trial of an action, the rendering of a judgment, or any other judicial proceeding; where such behavior directly tends to interrupt the proceedings, or to impair the respect due to his authority. 2. Breach of the peace, noise, or other disturbance, directly tending to interrupt his official proceedings. 3. Resistance wilfully offered, in his presence, to the execution of his lawful mandate. He has not power to punish, for a criminal contempt, in any other case. 2871. Punishment for a contempt, specified in the last section, may be by fine not exceeding twenty-five dollars, or by imprisonment in the county jail not exceeding five days, or both, in the discretion of the justice. Where a person is committed to prison for the non-payment of such a fine, he must be discharged at the expiration of ten days; but where he is also committed for a definite time, the ten days must be computed from the expiration of the definite time. 2872. A person shall not be punished by a justice of the peace, for a contempt, until an opportunity has been given him to be heard in his defence. And, for that purpose, the justice must issue a warrant, directed, generally, to any constable of the county, requiring the constable to bring the offender before him. § 2873. A justice, who convicts a person of a contempt, must, within ten days after the conviction, make up, subscribe, and file in the county clerk's office, a record thereof, stating therein the particular circumstances of the offence, and the punishment awarded by him upon the conviction. § 2874. A warrant of commitment for a contempt must set forth the particular circumstances of the offence; otherwise it is void. 2875. An officer, who collects or receives a fine, imposed by a justice of the peace for a contempt, must, within ten days thereafter, pay the money, for the benefit of the poor, to the overseer or superintendent of the poor of the town, city, or district, wherein the fine was imposed; or, where there is no such officer, to the officer or officers performing corresponding functions under another name; unless the board of supervisors has directed the payment of fines and penalties to the supervisor of the town, in a case where it is authorized by law so to do. TITLE II. Commencement of action; appearance of parties; provisional remedies. ARTICLE 1. Commencement of action. 2. Appearance of parties. 3. Order of arrest. 4. Attachment of property. ARTICLE FIRST. 2876. Action; how commenced. 2881. Id.; relating to express com panies. § 2882. Last two sections qualified. 2883. Second and third summons; effect thereof. 2884. Where name of defendant is unknown. 2885. Return of summons. § 2876. An action is commenced before a justice of the peace, either by the voluntary appearance and joinder of issue by the parties, or by the ser vice of a summons. § 2877. The summons must be directed, generally, to any constable of the county where the justice resides; and it must command him to summon |