or second of section two thousand eight hundred and ninety-five of this act; or if an order of aires was granted, and was executed, in a case specified in subdivision third of that section, the execution must also command the constable, if sufficient personal property cannot be found to satisy the judgment, to arrest the judgment debtor, and to convey him to the jail of the county, there to remain until he pays the judgment, or is discharged according to law. If the judgment was rendered in an action to recover a penalty or forfeiture given by a statute of the State, the justice must indorse upon the execution a reference to the statute, as prescribed in section one thousand eight hundred and ninety-seven of this act, with respect to a copy of the

summons.

§ 3027. After the return, wholly or partly unsatisfied, of an execution, issued by a justice of the peace, he may, from time to time, within five years after the judgment was rendered, issue a new execution, or renew the former execution. An execution is renewed by a written indorsement thereupon to that effect, signed by the justice, and dated upon the day when it is made. If part of the execution has been satisfied, the indorsement must state the sum remaining due. Each indorsement renews the execution for sixty days from the date thereof. A justice whose term of office has expired may thus issue or renew an execution.

§ 3028. The same personal property is exempt from levy and sale, by virtue of an execution issued by a justice of the peace, which is exempt from levy and sale, by virtue of an execution issued out of the supreme court, and in the like cases, and under the same circumstances, as prescribed in sections one thousand three hundred and eighty nine, one thousand three hundred and ninety, one thousand three hundred and ninety-one, one thousand three hundred and ninety-two, one thousand three hundred and ninety-three, and one thousand three hundred and ninetyfour of this act, and the other special provisions of law, relating to such an exemption.

§ 3029. A constable, who takes personal property into 47 Hun, 438 his custody, by virtue of an execution, must indorse upon the execution the time of levying upon it. He must immediately post conspicuously, in at least three public places of the city or town, in which the property was taken, written or printed notices, signed by him, describing the property, and specifying the place, within the same city or town, where, and the time, not less than six days after the posting, when, it will be exposed for sale.

3030. The provisions of sections one thousand three hundred and eighty-four, one thousand three hundred and eighty-five, one thousand three hundred and eighty-six, one thousand three hundred and eighty-seven, one thousand four hundred and five, one thousand four hundred and

21 Misc. 342.

nine, one thousand four hundred and ten, one thousand four hundred and eleven, one thousand four hundred and twelve, and one thousand four hundred and twenty-eight of this act, substituting the constable for the sheriff, apply to and govern the levy upon and sale of personal property, by virtue of an execution issued by a justice of the peace; except where a different rule is prescribed in this act.

$ 3031. The constable must return the execution to the justice, and pay to him the amount of the judgment, with interest, or so much thereof as he has collected; returning the surplus, if any, to the person from whose property it was collected.

3032. For want of sufficient personal property, whereon to levy, the constable must, if the execution requires it, arrest the judgment debtor, and convey him to the jail of the county. The keeper of the jail must thereupon keep the judgment debtor in custody, in all respects as if the execution was issued out of the supreme court, until the judgment and the fees of the constable are paid; or until the judgment debtor is thence discharged, in due course of law; except that if the execution has an indorse ment, showing that the judgment was rendered in an action for a penalty or forfeiture, given by a statute of the State, the sheriff shall not admit the judgment debtor to the liberties of the jail.

§ 3033. [Am'd 1883.] If a person committed to jail by virtue of an execution issued by a justice of the peace, or out of the municipal court of Buffalo, or by virtue of an execution issued by a county clerk on a transcript of a judgment recovered before a justice of the peace, or in the said municipal court of Buffalo, has a family within the state for which he provides, he must be discharged, after remaining in custody, either with or without being admitted to the jail liberties, thirty days; otherwise he must be discharged after so remaining sixty days.

§ 3034. In order to procure a discharge, as prescribed in the last section, the prisoner must make, and deliver to the sheriff or jailor, an affidavit, stating the facts which entitle him thereto, according to the provisions of that section. Upon receiving such an affidavit, the sheriff or jailor must forthwith discharge the prisoner from his custody. He must thereupon deliver the affidavit to the clerk of the county, who must file it in his office, without fee.

3035. A sheriff or jailor, who refuses to discharge the prisoner, upon receiving such an affidavit, forfeits twenty-five dollars for each day, during which he detains the prisoner; to be recovered by the latter, in addition to any damages, which he sustains by reason of the false imprisonment.

$3036. The receipt of such an affidavit is a defence, to an action brought against the sheriff or jailor, by reason of the prisoner's discharge.

§ 3037. Notwithstanding the discharge of a judgment debtor, as prescribed in the last four sections, the judgment remains valid as against his property; and a new execution may be issued accordingly, as if he had not been imprisoned.

§3038. In an action for a chattel, the possession of 77 Hun, 530, which has not been delivered to the prevailing party, an execution, for the delivery of the possession thereof to him, as well as for any damages recovered by him, may be issued by the justice; unless the judgment has been docketed in the county clerk's office, as prescribed in title sixth of this chapter. It must be to the same effect, and executed in the same manner, as a like execution issued upon a judgment rendered in the supreme court; except that it must be directed generally to any constable of the county; and that the direction to satisfy a sum of money, out of the property of the judgment debtor, must be in the form prescribed in this title for a like direction, where an execution is issued by a justice of the peace, upon a judgment for a sum of money.

$3039. If a constable fails to return an execution with- 5 Misc. 534. i five days after the return day thereof, the party, in whose favor it was issued, may recover, in an action against the constable, the amount of the execution, if it was issued upon a judgment for a sum of money; or if it was for the delivery of the possession of a chattel, the value of the chattel, as specified in the judgment, together with the damages and costs awarded thereby; and, in either case, with interest from the time when the judgment was rendered.

§ 3040. A constable shall not levy upon or sell prop erty, or arrest a defendant, or take possession of a chattel, by virtue of an execution, after the time limited therein for its return, unless the execution has been renewed; nor shall he do any act under a renewed execution, after the expiration of the time for which it has been renewed.

§ 3041. Where money, collected by a constable upon an execution, is not paid over by him according to law, any person entitled thereto may maintain an action in his own name, upon the instrument of security given by the constable and his sureties; and may recover therein the sum so collected, with interest from the time when it was collected.

§ 3042. A constable, to whom an execution is delivered, whose term of office expires on or before the return day thereof, must proceed thereupon in the same manner, as if his term of office had not expired; and he and his sureties are liable for any neglect of duty, with respect to the execution; or for money collected thereunder, or for damages sustained by reason of any act done by the constable, touching the execution, in the same manner, and to the same extent, as if his term of office had not expired.

5 Misc. 532

9 Misc. 456.

34 Hun, 55.

87 Hun, 40.

10 Abb. N. C. 220.

§ 3043. Where a judgment, rendered by a justice of the peace, has been docketed with a county clerk, upon the filing either of a transcript from the justice's docket, or of a transcript from the clerk's docket of another county, the execution, to be issued thereupon by the county clerk, must be in the same form, and executed in the same manner, as an execution issued upon a judgment of the county court; except as otherwise prescribed in section one thousand three hundred and sixty-seven of this act; and except, also, that. where the judgment is for a sum less than twenty-five dollars, exclusive of costs, the direction to satisfy the judg ment out of the real property of the judgment debtor must be omitted. In that case the provisions of this act, relating to the satisfaction of an execution out of the judgment debtor's real property, are not applicable thereto.

TITLE VIII.
Appeals.

ARTICLE 1. Appeals generally.

2. Appeal where a new trial is not had in the appellate

3044. The only mode of reviewing a judgment, rendered by a justice of the peace in a civil action, is by an appeal, as prescribed in this title.

§ 3045. [Am'd 1895, amendment to take effect January 1, 1896.] An appeal may be taken by any party aggrieved by the judgment. Except where the judgment is rendered by a justice of the peace of the city of Buffalo, the appeal must be taken to the county court of the county where the judg ment was rendered.

§ 3046. [Am'd 1882.] An appeal must be taken, within twenty days after the entry of the judgment in the justice's

5 Civ. Pro.

docket; except that, where a defendant appeals from a 28 Hun, 497. judgment rendered in an action, wherein he did not appear 141. and the summons was not personally served upon him, the appeal may be taken within twenty days after the personal service upon him, on the part of the plaintiff, of written notice of the entry of the judgment; but not after the expiration of five years from the entry of the judgment. An appeal is taken by serving upon the justice by whom the judgment was rendered, and upon the respondent, a written notice of appeal, subscribed either by the appellant or by his attorney in the appellate court.

3047. Service of the notice of appeal upon the justice, 21 App. Div. must be made by delivering it to him personally, or to his 285. clerk, appointed pursuant to law; but if the justice is dead, or if neither he nor his clerk can, after reasonable diligence, be found within the county, service of the notice upon the justice may be made, by delivering it to the clerk of the appellate court. Unless the justice is dead, the appellant must, at the time of serving the notice, pay to the person to whom it is delivered the costs of the action, included in the judgment, and the sum of two dollars, as the fee of the justice for making the return.

§ 3048. Service of the notice of appeal upon the respondent may be made, by delivering it, in any part of the State, to the respondent personally, or in one of the following methods:

1. If the respondent is a resident of the county, by leaving it at his residence, with a person of suitable age and discretion. If he is not a resident of the county, and the person who appeared as his attorney upon the trial is a resident thereof, it may be served upon the attorney, either personally, or by leaving it at his residence, with a person of suitable age and discretion.

2. If service within the county cannot be made, with due diligence, upon the respondent personally, or in the method prescribed in the foregoing subdivision, the notice of appeal may be served upon him, by delivering it to the clerk of the appellate court.

23 Ïd. 326.

5. Civ. Pro.

81.

3049. Where the appellant, seasonably and in good 28 Hun, 497. 18 Week. faith, serves the notice of appeal, upon either the justice or Dig. 510. the respondent, but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, the appellate court, upon proof by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires. 1 N. Y. State Rep 295, 9 App. Div. 175; 22 Id. 220.

24 N. Y.

State Rep.

815.

62 How. Pr.

3050. If the appellant desires a stay of execution, he must give a written undertaking, executed by one or more 258. sureties, approved by the justice who rendered the judg- 5 Civ. Pro. ment, or by a judge of the appellate court, to the effect 81. that, if the appeal is dismissed; or if judgment is rendered 13 d. 183. against the appellant in the appellate court, and an execu

43 Hun, 509.