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§ 43. Judgments upon appeal shall be given at the general term ; all others, at the special term.
8 44. The concurrence of two judges shall be necessary to pronounce a judgment at the general terrn. If two do not concur, the appeal shall be reheard.
Of the Courts of Justices of the Peace.
SECTION 45. Repeal of certain existing provisions.
46, 47. Jurisdiction of these courts.
plicable to these courts.
This title is intended to make such alterations only in the justices' court acts, as are rendered necessary by dispensing with the forms of action, by abolishing actions upon judgments, and by introducing a new system of pleading. A brief explanation will be sufficient to show the manner in which this object is attained.
We commence by proposing, by section 45, to repeal the existing statutory provisions, conferring the jurisdiction of these courts, with reference to the existing forms of action; (2 R. S., 3d ed. 324, 325, sec. 1–5;) and we substitute in their place, sections 46 and 47, by which the existing jurisdiction is retained, with reference to the substance, instead of the form of the action.
In the next place, we propose by section 45, to repeal the existing provisions, applicable to cases where title to real property comes in question, in actions in those courts, (2 R. S., 3d ed., 334, 335, sec. 60-67,) and to substitute from section 48 to 55, inclusive, in their stead.
By the existing provisions, when the defendant, in an action in one of these courts, sets up, by way of answer to the action, a claim of title tó real property, and gives a bond to appear and put in bail in an action to be commenced for the same cause, within thirty days, in the common pleas of the county, the justice's court becomes divested of jurisdiction. There being, under the new constitution, no courts of common pleas, (except in the city of New-York,) these provisions are of course, inoperative. We have, therefore, so modified them, as to substitute the supreme court for the courts of common pleas. With this exception, we have retained the substance of the present statutes, though (as will be seen by a comparison of our proposed sections with those now in force,) we have greatly simplified the proceedings in these cases.
Again, the 56th section authorizes the docketing of a justice's judgment, whatever may be its amount, so as to make it a lien upon lands, and gives it for every purpose, the effect of a judgment of a county court. It differs, in this respect, from the present statutes, in making this right universal, instead of confining it to judgments exceeding twenty-five dollars, exclusive of costs. (2 R. S. 3d. ed. 343, 314, sec. 128.) Viewed even in the abstract, we can see no justice in such a distinction. But when it is considered, that its tendency is not merely to enable, but to compel the party, if he would make such a judgment a lien, to bring repeated actions upon it until the requisite amount is attained, its positive injustice becomes apparent. We have provided, in section 64, for abolishing all actions upon judgments. The provision in question obviates any possible injustice to the plaintiff in this respect, while it relieves the defendant from oppression by repeated actions upon the judgment.
Lastly,—by the 57th section, it is proposed to apply the provisions abolishing forms of actions and establishing a more simple system of pleading, to justices' courts. If there be any propriety in their application to the higher courts, it can require no argument to show, that the old system should no longer continue, to embarrass the proceedings of that class of courts, whose very nature and organization call for the utmost simplicity in their modes of proceeding.
§ 45. The provisions contained in sections 2, 3 and 4, of the article of the Revised Statutes, entitled “ Of the jurisdiction of justices' courts,” as amended by sections 1 and 2, of the act concerning justices' courts, passed May 14, 1840, and the provisions contained in sections 59 to 66, of the same article, both inclusive, are repealed, and the provisions of this title substituted in place thereof. But this repeal shall not affect any action heretofore commenced, in a court of a justice of the peace.
§ 46. Justices of the peace shall have civil jurisdiction, in the following actions, and no other :
1. An action arising on contract for the recovery of money only, if the sum claimed do not exceed one hundred dollars;
2. An action for damages for an injury to the person, or to real or personal property, if the damages claimed do not exceed one hundred dollars ;
3. An action for a penalty, not exceeding one hundred dollars, given by statute ;
4. An action commenced by attachment of property, as now provided by statute ; if the debt or damages claimed do not exceed one hundred dollars;
5. An action upon a bond, conditioned for the payment of money, not exceeding one hundred dollars, though the penalty exceed that sum ; the judgment to be
given for the sum actually due.
Where the payments are to be made by instalments, an action may be brought for each instalment, as it shall become due ;
6. An action upon a surety bond taken by them, though the penalty or amount claimed exceed one hundred dollars.
$ 47. But no justice of the peace snall have cognizance of an action :
1. In which the people of this state are a party, excepting for penalties not exceeding fifty dollars ;
2. Nor where the title to real property shall come in question, as provided by sections 48 to 55, both inclusive;
3. Nor of an action for an assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction;
4. Nor of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars ;
5. Nor of an action against an executor or administrator, as such.
§ 48. In every action brought in a court of a justice of the peace, where the title to real property shall come in question, the defendant may, either with or without other matter of defence, set forth in his answer, any matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his attorney, and delivered to the justice. The jus
tice shall thereupon countersign the same, and deliver it to the plaintiff.
$ 49. At the time of answering, the defendant shall deliver to the justice a written undertaking, executed by at least one sufficient surety, and approved by the justice, to the effect that if the plaintiff shall, within thirty days thereafter, deposit with the justice a summons and complaint in an action in the supreme court, for the same cause, the defendant will, within ten days after such deposit, give an admission in writing of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking shall further provide, that he will, at all times, render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable, not exceeding one hundred dollars.
§ 50. Upon the delivery of the undertaking, to the justice, the action before him shall be discontinued, and each party shall pay his own costs. The costs so paid by either party shall be allowed to him, if he recover costs in the action to be brought for the same cause in the supreme court. If no such action be brought within thirty days after the delivery of the undertaking, the defendant's costs before the justice may be recovered of the plaintiff
$ 51. If the undertaking be not delivered to the justice, he shall have jurisdiction of the cause, and shall