§ 1340, Consol. Act. 22 Week. Dig. 261.

§ 1341, Consol. Act.

1342, Consol. Act.

§ 1343, Con sol. Act.

6 Misc. 476.

§ 1344. Consol. Act.

procures the allowance of his undertaking, the constable must immediately deliver the chattel to the defendant.

2928. A constable who delivers to either party, with out the consent of the other, a chattel replevied by him. except as prescribed in the last section, or, by virtue of an execution issued upon a judgment in the action, forfeits to the party aggrieved the sum of one hundred dollars; and is also liable to him for all damages which he sustains thereby.

§ 2929. The provisions, regulating the proceedings, where a person, not a party, claims property which has been replevied, and the rights of such a person, and of the sheriff, as prescribed in sections one thousand seven hundred and nine, one thousand seven hundred and ten, one thousand seven hundred and eleven, and one thousand seven hundred and twelve of this act, apply to a like case in an action, brought as prescribed in this article, substituting the constable for the sheriff; except that service of a notice and of a copy of the claimant's affidavit, upon the plaintiff's attorney, as prescribed in section one thousand seven hundred and nine, must be made, either upon the plaintiff personally, or upon the attorney who appears for him before the justice; and that the sum specified in the undertaking, given by the plaintiff to the constable, need not exceed, in any case, three hundred dollars.

2930. Where a chattel has been replevied, and the defendant has not required the return thereof, pending the action, as prescribed in the foregoing sections of this article, he may, in his answer, demand judgment for the return thereof, either with or without damages for the taking, withholding, or detention.

§ 2931. Section one thousand three hundred and sev enty-three, section one thousand seven hundred and thirtyone, excluding subdivision first thereof, and sections one thousand seven hundred and twenty-two, one thousand seven hundred and twenty-six, one thousand seven hundred and thirty, one thousand seven hundred and thirty-two. one thousand seven hundred and thirty-three, one thousand seven hundred and thirty-four, and one thousand seven hundred and thirty-five of this act, substituting the constable for the sheriff, apply to the proceedings in an action in a justice's court to recover a chattel, and to an action against the sureties in an undertaking given therein, except as otherwise specially prescribed in this chapter.

$2932. Where the defendant does not appear, and the summons has not been personally served upon him, and a chattel, or part of a chattel, to recover which the action is brought, has been replevied, and the proceedings thereupon have been duly taken, as prescribed in this article; the jus tice must proceed to hear and determine the action, with respect to that chattel or part of a chattel; or, if the action

is brought to recover two or more chattels, with respect to those which have been replevied; in like manner and with like effect, as if the summons had been personally served.

2933. Where the summons has been personally served upon the defendant, or where he appears, the justice ust proceed to hear and determine the action, although the laintiff has not required the chattel to be replevied, or the Constable has not been able to replevy it.

The Union Surety and Guaranty Co

The Union Surety and Guaranty Co

80 Hun, 35. Misc. 561. 30 App. Div. 173.

§ 2934. [Am'd 1893.] At the place and within one hour after the time specified in the summons for the return thereof; or, where an order of arrest is granted and execnted within twelve hours after the defendant is brought before the justice; or, where no summons is issued, at the time when the parties voluntarily appear to join issue, the pleadings of the parties must be made and issue must be joined. Where both parties appear upon the return of the summons an issue must be joined before an adjournment is had, except when the defendant refuses or neglects to plead. Where an issue of fact or an issue of law is joined in a justice's court, or before a justice of the peace in the city of Brooklyn, or in any of the towns in the county of Kings, in which the judgment demanded by either party in his pleadings exceeds the sum of one hundred dollars; or, when in an action to recover a chattel or chattels, the value of which as fixed by either party in his pleadings or affidavits exceeds one hundred dollars, the defendant may, after issue joined and before an adjournment is granted upon his application, apply to the justice before whom the action is brought for an order removing the action into the county court of the county of Kings. Such an order must

be granted upon the defendant filing with the justice an undertaking in a sum fixed by the justice, not exceeding twice the amount of the damages claimed or twice the value of the chattel or of all the chattels claimed, as stated in the pleadings or affidavits, with one or more sureties, approved by the justice, to the effect that the defendant will pay to the plaintiff the amount of any judgment, including costs, that may be recovered against him in the county court in the action so removed. From the time of the granting of the order the county court of Kings county has cognizance of the action, and the same shall be tried and determined by said county court as if originally brought therein. The justice must forth with deliver to the clerk of the county court all processes, pleadings and other papers in the action which must be filed, entered or recorded, as the case requires, in the latter office. Costs in an action so removed shall be the same as in an original action commenced in said county court.

§ 2935. The pleading in a justice's court are:

1. The plaintiff's complaint.

§ 1347, Cor sol. Act.

9 Misc. 56.

3.

The defendant's demurrer to the complaint, or to one or more distinct causes of action, separately stated therein.

4. The plaintiff's demurrer to one or more counterclaims 72 Hun, 475. stated in the answer.

§ 2936. The complaint must state, in a plain and direct manner, the facts constituting the cause of action.

§ 2937. The plaintiff may unite, in the same complaint, two or more causes of action, where they all arise out of

16 Misc. 334.

§ 1347, Consol. Act.

§ 1347, Consol. Act.

7 Misc. 320; 9 Id. 72.

§ 1847, Consel. Act.

5 Misc. 514. 24 Id. 643.

1347, ConBol. Act.

$1347, Consol. Act.

1. The same transaction, or transactions connected with the same subject of action; or

2. Contract, express or implied; or

3. Personal injuries, and injuries to property, or either. But it must appear, upon the face of the complaint, that all the causes of action so united belong to one of the foregoing subdivisions of this section; that they are consistent with each other; that they require the same judgment; and, except as otherwise prescribed by law. that they affect all the parties. Where a cause of action, for which a defendant might be arrested, is united with a cause of action, for which he cannot be arrested, an execution against the person of the defendant cannot be issued upon the judgment.

§2938. The answer may contain a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof. It may also set forth, in a plain and direct manner, new matter, constituting one or more defences or counterclaims.

2939. In a case specified in subdivision third or fourth of section two thousand nine hundred and thirtyfive of this act, a party may demur to the pleading of the adverse party, or, if it is a complaint, to one or more distinct and separate causes of action, where it is not sufficiently explicit to be understood; or where it does not state facts sufficient to constitute a cause of action, or counterclaim, as the case may be. If the court deems the demurrer well founded, it must permit the pleading to be amended; and if the party fails so to amend, the defective pleading, or part of a pleading, demurred to, must be disregarded. If the court deems the demurrer not well founded, it must permit the party making it to plead over, at his election.

§ 2940. A pleading, except as otherwise prescribed in section two thousand nine hundred and fifty-one of this act, may be oral or written. If it is oral, the substance thereof must be entered by the justice in his docket-book : if it is written, it must be filed by him, and a reference to it made in his docket book. A pleading is not required to be in any particular form; but it must be so expressed, as to enable a person of common understanding to know what is intended.

2941. For the purpose of setting forth a cause of action, defence, or counterclaim, founded upon an account, or upon an instrument for the payment of money only, it is sufficient for the party to deliver the instrument, or a copy of the account to the court, and to state that there is due to him thereupon, from the adverse party, a specified sum, which he claims to recover or to set off.

2942. The court may, upon the request of either party, made when issue is joined, require the adverse party 143 to exhibit his account or demand, or to state the nature