I. JURISDICTION OF DISTRICT COURTS. a. Claim and delivery.—In an action to recover the possession of personal property, the judgment in the district courts must be rendered according to the provisions of the revised statutes (2 R. S. 530, § 49), and not according to the provisions of § 277 of the Code. Stauff v. Maher, 2 Daly, 142. b. Estate of married woman.-The district courts have not jurisdiction of an action brought to charge the separate estate of a married woman, although the debt on which the action was brought was contracted with reference to such estate. Salter v. Parkhurst, 2 Daly, 240. See subd. c. c. Removal of cause to common pleas. When the defendent, for the purpose of removing a cause to the court of common pleas, according to the laws of 1857, ch. 344, has presented his undertaking to the justice, the jurisdiction of the justice is arrested, except to adjourn until the application is disposed of. And when he filed the undertaking but did not approve or disapprove of the same, but took additional proof, and rendered judgment for the plaintiff, such judgment was reversed on appeal. Hogan v. Derlin, 2 Daly, 184. Where a surety on the undertaking was re jected and the cause was adjourned to enable the defendant to procure another, a judgment entered on the non-appearance of the defendant on the adjourned day was affirmed. Moon v. Thompson, 2 Daly, 180. If a cause has been removed to the common pleas, the pleadings cannot be so changed as to allow the litigation of a matter, not a subject of jurisdiction in the district court. Salter v. Parkhurst, 2 Daly, 240; subd. b, supra. d. Action on bond.-The district courts have not jurisdiction of an action on any bonds except those conditioned for the payment of money and surety bonds, given under subd. 6, of § 53, of the Code. Smith v. White, 2 Daly, 72. e. General.-In 1857 an act was passed by the legislature reducing the various acts relating to the jurisdiction of the district courts into one, which forms a Code for proceedings in these courts, an annotated edition of which has been published; hence, it has not been thought advisable to give any, except a few of the more recent cases under this section. See § 67, note I, post. CHAPTER III. The justices' courts of cities. § 67. [60.] Their jurisdiction. The justices' courts of cities shall have jurisdiction in the following cases, and no other: 1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54. 2. In an action upon the charter or by-laws of the corporations of their respective cities, where the penalty or forfeiture shall not exceed one hundred dollars. I. District courts.-The district and marine courts of New York city are not courts of justices of the peace within the meaning of the Code. Boston Silk and Woolen Mills v. Eull, 37 How. 299, (305); S. C. 6 Abb. N. S. 319. See also Mills v. Winslow, 2 E. D. Smith, 18; Jackson v. Whedon, 1 id. 141; and Davis v. Hudson, 5 Abb. 61. CHAPTER IV. General provisions. § 68. [61.] (Am'd 1849, 1851.) Sections 55 to 64, applicable to the courts embraced in this title. The provisions of sections 55 to 64, both inclusive, relating to forms of actions, to pleadings, to the times of commencing actions, to the rules of evidence, to filing and docketing transcripts of judgments, to their effect and the mode of enforcing them, and to proceedings, where title to real property shall come in question, shall apply to the courts embraced in this title; except that, after the discontinuance of the actions in the inferior court upon an answer of title, the new action may be brought either in the supreme court, or in any other court having jurisdiction thereof; and except, also, that in the city and county of New York, a judgment for twenty-five dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien, and be enforced in the same manner as, and be deemed, a judgment of the court of common pleas for the city and county of New York. I. TRANSCRIPT. d. County court.-After the filing of the transcripts with the county clerk, the judgments are deemed judgments of the county court, and that court may order setoff between them. Hayden v. McDermott, 9 Abb. 14. a. Filing transcript.-"It is not neces-overruling Candee v. Gundelsheimer, subd. b, sary that a transcript, from a justice of the supra. peace, of a judgment rendered by him, show the proceedings to give jurisdiction to render a valid judgment, in order to authorize it to be filed and docketed. It is for that purpose prima facie evidence that such justice had jurisdiction to render the judgment." Dickinson v. Smith, 25 Barb. 102, (105); Jackson v. Rowland, 6 Wend. 666; Jackson v. Tuttle, 9 Cow. 233; Jackson v. Jones, id. 182. After the transcript is filed, the magistrate who rendered it, has no further control over the judgment. Matter of Sholts, 2 Cow. 506. b. Less than $25.-A transcript may be filed with the county clerk, though the judgment be less than $25. Candee v. Gundelsheimer, 17 How. 434; S. C. 8 Abb. 435; and cases cited under subd. c. c. Supplementary proceedings, however, cannot be instituted unless the judgment exceeds $25. Anonymous, 32 Barb. 201; Butts v. Dickinson, 12 Abb. 60; S. C. 20 How. 230; Vultee v. Whitehead, 2 Hilt. 596; | An action cannot be brought on such judgment without leave of the court. Lyon v. Manly, 18 How. 267; S. C. 10 Abb. 337; 32 Barb. 51. But it cannot open or vacate a judgment thus rendered one of its own. Martin v. Mayor, etc., of New York, 12 Abb. 243; Aff'g S. C. 20 How. 86, (89); 11 Abb. 295. e. Evidence. The transcript of a docket may be put in evidence to prove a judgment in support of an execution thereon, although it does not state that a transcript of such judgment has been given to the county clerk to file; such filing may be proved in some other manner. Carpenter v. Simmons, 1 Rob. 360, (371); S. C. 28 How. 12, (15). See subd. a, supra. II. JUDGMENTS, ETC. a. Dockets.-The statutory provisions prescribing the duties of clerks in respect to dockets, transcripts, etc., are merely directory, and the omission to perform such duties will not invalidate a judgment regularly recovered. Carpenter v. Simmons, subd. e, supra; Sears v. Burnham, 17 N. Y. (3 Smith,) 445; S. C. 2 Bradf. 394. b. Lien. The lien of a justice's judgment, docketed with the county clerk, pursuant to the provisions of 2 R. S. 247, § 128, continues against subsequent incumbrancers, and purchasers in good faith for ten years, and against the defendant himself for twenty years. Waltermire v. Westover, 14 N. Y. (4 Kern.) 16, (19); contra, Young v. Reimer, 4 Barb. 442. The Code has not changed the law in this respect. Nicholls v. Atwood, 16 How. 475; Jones v. Merchant's Bank of Albany, 6 Rob. 162. See also Geller v. Hoyt, 7 How. 265. c. Joint debtors.-Section 375 of the Code does not apply to the district and marine courts of New York city. Ticknor v. Kennedy, 4 Abb. N. S. 417; Rev'g 3 id. 387; Prince V. Cujas, 7 Rob. 76. d. Judgment by default.-In certain cases a justice is bound to give a transcript of his proceedings, etc., to any party interested in the judgment, on being paid therefor. Laws of 1841, ch. 141. He may be compelled to deliver such transcript by mandamus. People ex rel. Decker v. Lynde, 8 Cow. 133. e. Certificate.-The certificate of a justice of proceedings had before him, may be made after the expiration of his term of office. Maynard v. Thompson, 8 Wend. 393. f. Execution.-Where on a judgment of the county court in one county, an execution was issued to another county, before a transcript had been filed there, and the judgment was paid, both parties supposing the proceedings regular, the supreme court in an action to recover the money so paid, ordered a transcript to be filed nunc pro tunc. Roth v. Schloss, 6 Barb. 308. Where a judgment rendered in the district court, has been docketed in the common pleas, the execution thereon may be issued by the attorney for the judgment creditor. It is not necessary that the clerk should issue it. Brush v. Lee, 3 Abb. N. S. 204; S. C. 36 N. Y. (9 Tiff.), 49; 34 How. 283; 1 Trans. App. 66; Aff'g 18 Abb. 398. But not on this point. | McDonald v. O'Flynn, 2 Daly, 42. SECTION 69. TITLE I. Of the form of civil actions. Distinction between actions at law and suits in equity, and forms of such actions and suits, abolished. 70. Parties to an action, how designated. § 69. [62.] (Am'd 1849.) Distinction between actions at law and suits in equity, and forms of such suits and actions abolished. The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and there shall be in this State, hereafter, but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action. I. ACTIONS OF A LEGAL NATURE. a. Property pawned.-Without some other circumstances rendering its interference necessary, a court of equity has no general jurisdiction over actions to redeem personal property pawned. Durant v. Einstein, 5 Rob. 423; S. C. 35 How. 223. b. Rent charge.-Under the Code, it is not necessary that the plaintiff should resort to a separate action of an equitable nature, to have the existence of a rent charge declared. The whole matter may be determined in an action to recover possession of land for the jury, and the equitable causes by the court. Davis v. Morris, 36 N. Y. (9 Tiff.), 569; S. C. 3 Trans. App. 226; Aff'g S. C. 35 Barb. 227. The old forms of action were abolished by the Code, but not the principles by which the different forms of action were previously governed; these still remain, and control in determining the rights of parties. Eldridge v. Adams, 54 Barb. 417. II. ACTIONS OF AN a. Dower.-An equitable action for the admeasurement of dower, is sustainable under the Code. Brown v. Brown, 4 Rob. 688; S. C. 31 How. 481. b. Construction.-The nature and effect of this section has been discussed in the fol lowing cases: Reubens v. Joel, 13 N. Y. (3 Kern.), 488; Aff'g S. C. 2 Duer, 530; 12 N. Y. Leg. Obs. 148; Scovill v. Griffith, 12 N. Y. (2 Kern.), 509; Trull v. Granger, 8 N. Y. (4 No relief can be administered in equity where the remedies at law are adequate to the attainment of justice. Mutual Benefit Life Insurance Co. v. The Board of Supervisors of the City and County of New York, 3 Keyes, 182; S. C. 32 How. 359; 2 Abb. N. S. 233; Aff'g S. C. 8 Bosw. 683; 33 Barb. 322. EQUITABLE NATURE. Seld.), 115; Ten Eyck v. Houghtaling, 12 §70. [63.] Parties to an action, how designated. In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant. § 71. [64.] Actions on judgments, when and how to be brought. No action shall be brought upon a judgment rendered in any court of this State, except a court of a justice of the peace, between the same parties, without leave of the court, for good cause shown, on notice to the adverse party; and no action on a judgment rendered by a justice of the peace, shall be brought in the same county within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is, or shall have been lost or destroyed. I. ACTIONS ON JUSTICES' JUDGMENTS. No action shall be brought on a justice's judgment, docketed in a county court, with II. LEAVE TO a. When leave must be obtained.When a judgment has been rendered in a district court, or the marine court of the city of New York, between the same parties, no action can be commenced upon it without leave of the court. Thompson v. Sutphen, 2 E. D. Smith, 527; Mills v. Winslow, id. 18; S. C. 3 Code, R. 44. When judgment has been obtained against two defendants upon a joint contract, but process served only on one of them, and judgment taken to be collected of the joint property of both, or of the separate property of the defendant served, a second action may out leave of such court. Lyon v. Manly, 32 Barb. 51; S. C. 10 Abb. 337; 18 How. 267. BRING ACTION. be brought against both defendants, alleging the recovery of the former judgment, and setting out the joint obligation, and serving process only on the defendant not served in the former action, and a like judgment obtained against the latter defendant. The second action is not an action upon a judgment, within the meaning of § 71 of the Code. Neither is such an action superseded by § 375 of the Code. Dean v. Eldridge, 29 How. 218. Strictly, the prohibition of § 71 of the Code against the bringing of any action upon a judgment without leave, would not include the nominal judgment obtained against parties not served with process in an action against joint debtors. But an action cannot now be brought at all upon a judgment so obtained against joint debtors, where some have not been served with process. Nor would any court have the right to grant leave to sue on such a judgment against joint debtors, where some only have been served, until after the judgment on the special proceeding authorized by the Code (§ 375, et seq.) to make the judgment binding on all. Lane v. Salter, 4 Rob. 239. b. When leave need not be obtained.-A bona fide assignee of a judgment may sue upon it without leave. Tuffts v. Braisted, 1 Abb. 83; S. C. 4 Duer, 607; Kopper v. Howe, 2 Hilt. 69. An executor or administrator of a deceased judgment creditor may also do so. Wheeler v. Dakin, 12 How. 537. An action in the nature of a creditor's bill may be brought without leave. Catlin v. Doughty, id. 459; Quick v. Keeler, 2 Sandf. 231; Dunham v. Nicholson, id. 636; S. C. 3 Code R. 205. An assignee of a justice's jndgment may set it off in an action against him, and without any leave of the court first obtained. Clark v. Story, 29 Barb. 295. So a defendant may set off a judgment previously recovered by himself. against the plaintiff, although no leave of court has been granted. Wells v. Henshaw, 3 Bosw. 625. After a judgment against joint-debtors, upon a service on one of them alone, no leave to sue under § 375 of the Code is required. And it is more than doubtful whether the first judgment is one, in personam as regards the party not served, so as to require leave to sue under § 71 of the Code. If it were, the omission to set up such leave is not cause of demurrer, the remedy being by motion to set aside the complaint or summons. Prince v. Cujas, 7 Rob. 76. c. Bringing action without leave. Bringing an action upon a judgment when it may be brought at all, without the leave of the court required by § 71 of the Code, is a mere irregularity, which may be waived by the opposite parties not taking the objection in time, or otherwise. It does not constitute any part of the cause of action. Lane v. Salter, 4 Rob. 230. The correct practice is to make a motion to set aside the summons and complaint, where an action has been commenced without leave, in a case where leave is necessary. Finch v. Carpenter, 5 Abb. 225. The plaintiff should be left to a motion, and leave to sue should not be granted nunc pro tunc upon the motion to vacate the proceedings, id. In the foregoing action, the order was that the motion to set aside the summons and complaint should be granted with costs, unless the plaintiff should, within twenty days, give notice of a motion for leave to bring the action nunc pro tunc; and if such notice was given, then all proceedings of both parties to be stayed until the decision of such motion. ib. d. Joint-stock company.-As to actions on judgments against joint-stock companies or associations, see Laws 1853, ch. 153 Suit against the company, as prescribed. by statute, and a judgment and an execution returned unsatisfied, must be shown before the members of a joint-stock company can be sued as such. Robbins v. Wells, 20 How. 15; S. C. 18 Abb. 191; 1 Rob. 666; Vanderbilt v. Garrison, 3 Abb. 361; S. C. 5 Duer, 689. e. Service by publication. — Where judgment has been obtained after service of process by publication, no action can be maintained on such judgment in another court. Force v. Gower, 23 How. 294. See Fiske v. Anderson, 33 Barb. 71; S. C. 12 Abb. 8. f. Joint-stock companies.-After a judgment has been obtained against a jointstock company, and execution thereon returned unsatisfied, suits may be brought against any or all the shareholders individually. But only one such suit can be maintained at one time. Laws of 1853, ch. 153. § 72. [65.] Feigned issues abolished, and order for trial substituted. Feigned issues are abolished; and, instead thereof, in the cases where the power now exists to order a feigned issue, or when a question of fact not put in issue by the pleadings is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial. I. ISSUES a. When order may be made.-It is too late, after a cause has been actually tried by the court, to apply for an order for the trial of a question of fact by a jury. O'Brien v. Bowes, 10 Abb. 106; S. C. 4 Bosw. 667. The court may, of its own motion, at any time before a trial has actually been had, OF FACT. order a trial by jury, id.; semble, that a motion for a trial by jury cannot be made after ten days after issue joined. id. The judge must determine the whole case. Id. b. Divorce.-Since the amendment of 1852, of § 253 of the Code, § 72 can have no application to an action for divorce for |