tory proof, by affidavit, that the justice, before whom the action or special proceeding is pending, is a material witness for the defendant, without whose testimony he cannot safely proceed to trial, setting forth therein the particular facts and circumstances, which he expects to prove by him, the justice must forthwith make a written order, directing the action or special proceeding to be continued before another justice of the same town or city, named in the order.

§ 3152. Where an order is made, as prescribed in either of the last two sections, the constable must forthwith take it, and all other papers in the action, with the body of the defendant, if he is under arrest, before the justice named in the order. The plaintiff or petitioner must forthwith appear before that justice, who must take cognizance of the action or special proceeding, and must proceed therein as if it had been commenced before him. Costs, recovered in the action or special proceeding, include the fees allowed by law, for services performed by the constable and the justice, before the transfer, together with the fees allowed by law, for the proceedings before the justice to whom the cause is transferred.

§ 3153. A justice of the peace, who neglects or refuses, within a reasonable time after demand, to pay any money, collected by him in his official capacity, to the person entitled thereto, is guilty of a misdemeanor, and shall be punished accordingly. A conviction also operates as a forfeiture of his office.

§ 3154. In an action upon a judgment of a justice of the peace, brought in the county wherein it was rendered, within five years after the rendition thereof, against a defendant upon whom the summons was personally served, no costs can be recovered, except where the justice, who rendered the judgment, is dead, or out of office, or otherwise incapable of acting; or has removed from the county; or where one of the parties has died; or where the docket of the judgment has been lost or destroyed.

3155. In an action brought upon a judgment of a justice of the peace, who is dead, or out of office, or otherwise incapable of acting; or has removed from the county; or cannot be found therein; the original docket-book of the justice is presumptive evidence of any matter entered therein, as prescribed by law; but the presumption may be repelled by proof. If the docket-book is lost or destroyed, or if it cannot be produced, after reasonable effort to obtain it, the like proof may be given, respecting the recovery of the judgment, as upon any other question of fact.

S3156. A justice of the peace, who issues any mandate, authorized by this chapter, except a venire, may, at the request of the party, whenever he deems it expedient so to do, empower, by a written authority indorsed upon the

mandate, any proper person of full age, not a party to the action, to serve, or otherwise execute it. For that pur pose, the person so empowered has all the power and au thority, and is subject to all the obligations and liabilities, of a constable; and his return is evidence in like manner as a constable's. But a person so empowered is not entitled to any fee or reward for his services.

§3157. A constable, to whom a mandate is directed and delivered as prescribed in this chapter, must execute it in person, pursuant to the tenor thereof. He cannot act by deputy in such a case.

§ 3158. If a constable, to whom a mandate, issued by a justice of the peace, is directed and delivered, finds, or has reason to apprehend, that resistance will be made to the execution thereof, he may deliver it to the sheriff of the county, with a written certificate, stating the facts, and requiring the sheriff to execute it. Thereupon the sheriff must execute the mandate; and he is subject to all the liabilities attaching to a constable in executing it. Sections one hundred and four, one hundred and five, and one hundred and six of this act apply to a mandate delivered to a sheriff as prescribed in this section.

CHAPTER XX.

PROVISIONS RELATING TO CERTAIN COURTS IN CITIES, AND THE PROCEEDINGS THEREIN. TITLE I. THE MARINE COURT [NOW CITY COURT] OF THE CITY OF NEW YORK.

TITLE II-THE MAYOR'S COURT OF THE CITY OF HUDSON, AND THE RECORDERS' COURTS OF THE CITIES OF UTICA AND OSWEGO.

TITLE III.-THE CITY COURT OF YONKERS.

TITLE IV.

THE DISTRICT COURTS OF THE CITY OF NEW YORK, AND THE JUSTICES' COURTS OF THE CITIES OF ALBANY AND TROY. TITLE V.-THE MUNICIPAL COURT OF THE CITY OF ROCHESTER.

TITLE I.

The marine court of the city of New York.*

ARTICLE 1. Provisions generally applicable to proceedings in the

court.

2. Provisions exclusively applicable to the proceedings, other than appeals, in an ordinary action.

3. Provisions exclusively applicable to the proceedings, other than appeals, in certain marine causes.

4. Appeals to and from the general term of the court.

* L. 1883, Ch. 26, changed name to "City court of New York."

§ 3159. Each of the foregoing provisions of this act, which is made, by chapter twenty-second of this act, applicable to the marine court of the city of New York, or generally to courts of record, is subject to the qualifications and exceptions expressed or plainly implied in this title.

§ 3160. Sections four hundred and thirty-eight and six hundred and three, sections six hundred and eleven to six hundred and nineteen, both inclusive, and sections six hundred and thirty-six, eight hundred and twenty-seven, one thousand and thirteen, and one thousand and fifteen of this act do not apply to an action or a special proceeding brought in the marine court of the city of New York, or before a justice thereof, or to any proceeding therein. Sections three thousand two hundred and sixty-eight and three thousand two hundred and sixty-nine of this act do not apply to an action in the court, prosecuted as prescribed in article third of this title; or where an undertaking has been given as prescribed in section three thousand one hundred and sixty-five of this act. A plaintiff, in an action brought in the court, who has an office for the regular transaction of business in person, within the city of New York, is deemed a resident of that city, within the meaning of sections three thousand two hundred and sixtyeight and three thousand two hundred and sixty-nine of this act.

§ 3161. The time for personal service of certain notices, in an action brought in the court, is as follows:

1. Notice of justification of the sureties, in an undertaking given by the plaintiff, as security for the defendant's costs, not more than two days.

2. Notice of an application for judgment in a case specified in section five hundred and thirty-seven of this act; notice of a motion to strike out a pleading, in a case specified in section five hundred and thirty-eight of this act; notice of an application for judgment upon the defendant's default, or of the execution of a reference, or writ of inquiry, or of an assessment thereupon, as prescribed in section one thousand two hundred and nineteen of this act; not less than two days.

3. Notice of the justification of bail, not less than two, nor more than ten days.

4. Notice of a motion, other than a motion specified in subdivision second of this section, not less than four days; but the court or a justice thereof may, upon an affidavit showing grounds therefor, prescribe a shorter time, by an order to show cause.

5. Notice of trial of an issue of fact, or of an issue of law; notice of the hearing of an appeal, or of any other hearing, the time for serving which is not expressly prescribed in either of the foregoing subdivisions of this section, or elsewhere in this title; not less than five days.

6. Notice of taxation of costs, not less than two days; except where all the attorneys, serving and served with the notice, reside or have their offices in the city of New York, in which case, one day's notice is sufficient.

§ 3162. Notice of trial of an issue triable at a term of § 1241, Con the court, or of the hearing of an appeal to the general term sol. Act. of the court, may be given for any day of the term. A note of issue must be filed at least two days before the day, or the commencement of the term, for which the notice of trial or hearing is given; and, if it relates to the trial of an issue of fact, or of law, it must, in addition to the matters specified in section nine hundred and seventy-seven of this act, state the day or the term, for which the notice has been given. But this and the last section do not apply to a case where special provision is otherwise made in article third of this title.

§ 3163. Where it satisfactorily appears that a party, § 1246, Conwho is actually confined in jail, by virtue of an order of sol. Act. arrest, or an execution against the person, issued in an action brought in the court, is physically unable to endure the confinement, and that he cannot procure bail, or the necessary sureties in a bond for the jail liberties, as the case requires, the court, or a justice thereof, may, in its or his discretion, by order, direct the sheriff to release him from custody. The sheriff must obey such an order. After such a release from an execution against the person, another execution, against the person of the judgment debtor, cannot be issued upon the judgment; but the judgment creditor may enforce the judgment against property, as if the execution, from which the judgment debtor was released, had been returned without his being taken.

§ 3164. Money paid into the court, pursuant to any § 1265, Con provision of this act, must, unless the court otherwise sol. Act. directs, be paid directly to the chamberlain of the city of New York, to the credit of the cause in which it is paid.

§ 1237, Consol. Act.

21 Abb. N.

C. 93.

93 N.Y.93.

§ 1238, Consol. Act.

ARTICLE SECOND.

PROVISIONS EXCLUSIVELY APPLICABLE TO THE PROCEED-
INGS, OTHER THAN APPEALS, IN AN ORDINARY ACTION.

3165. The summons, in an action brought in the court, must state that the time, within which the defendant must serve a copy of his answer, is six days after the service thereof, exclusive of the day of service; except in one of the following cases:

1. A justice of the court may, upon satisfactory proof, by affidavit, that either the plaintiff or the defendant resides without the city of New York; or, where there are two or more plaintiffs, or two or more defendants, that all the plaintiffs or all the defendants reside without that city, direct, by an order, that the defendant be summoned to answer within a shorter time, specified therein, not less than two days after the service of the summons, exclusive of the day of service; whereupon the summons must correspond to the order. The order must be indorsed upon or annexed to the summons; and a copy thereof must be delivered with a copy of the summons. The justice may, in his discretion, as a condition of granting the order, require the plaintiff to give an undertaking, with one or more sureties, to the effect that the plaintiff will pay any judgment which may be rendered against him in the action, not exceeding a sum specified in the undertaking, which must be at least two hundred dollars.

2. Where an order, directing service of the summons without the city of New York, or by publication, is granted, the summons must state that the time, within which the defendant must serve a copy of his answer, is ten days after service thereof, exclusive of the day of service. If a summons, requiring the defendant to answer within a shorter time, has been issued, as prescribed in this section, before an order specified in this subdivision is granted, the justice granting such an order may direct that the summons be amended accordingly; and thereupon the summons published, or served without that city, pursuant to the order, must correctly state the time.

3166. The time, within which a defendant in a case specified in section four hundred and seventy-nine of this