§ 35. (Being § 41 of 1848.) The superior court of the city of New York, and the court of common pleas for the city and county of New York, shall, within twenty days, appoint general and special terms of those courts respectively, and prescribe the duration thereof; and they may, from time to time, respectively, alter such appointments; and hereafter no fees shall be paid for any service of a judge of either of those courts. § 36. (Being § 42 of 1848.) A general term shall be held by at least two of the judges of those courts respectively, and a special term by a single judge. § 37. (Being § 43 of 1848.) Judgments upon appeal shall be given at the general term; all others, at the special term. § 38. (Being § 44 of 1848.) The concurrence of two judges shall be necessary to pronounce a judgment at the general term. If two do not concur, the appeal shall be reheard. § 39. (Added in 1849.) A crier shall be appointed by the superior court of the city of New York, and by the court of common pleas for the city and county of New York, respectively, to hold his office during the pleasure of the court. He shall receive a salary to be fixed by the supervisors of the city and county of New York, and paid out of the county treasury. § 40. (Added in 1849.) The superior court of the city of New York shall, from the first day of May, 1849, consist of six justices. (Sections 41, 42 and 43, of the Code, as am'd in 1849, related to the election and classification of judges of the superior court of New York city, whose terms expired December 31st, 1855, and those sections have now become obsolete.) § 44. (Added in 1849.) After the expiration of the terms of office under such classification, the term of office of all the justices of the superior court of the city of New York shall be six years; and any vacancy occurring in the offices created by this title shall be filled in the manner prescribed for filling vacancies in the offices of the present justices. § 45. (Added in 1849.) The justices elected pursuant to this title, subject to the provisions contained in section forty-nine, shall have the same powers, and perform the same duties, in all respects, as the present justices of such superior court, and shall receive the same salaries, payable in like manner. § 46. (Added in 1849.) A general term of the superior court may be held by any two of the six justices thereof, and a special term by any one of them; and a general and special terms, one or more of them, may be held at the same time. § 47. (Added in 1849.) All civil suits at issue at the time of the passage of this act, that from and after the first of May, 1849, shall be placed upon the calendar of the supreme court at any general or special term thereof, to be held in the city of New York, and which shall be in readiness for hearing on questions of law only, or are equity cases, may, by an order of that court, or of the judge holding such special term, be transferred to the said superior court of the city of New York, and to be heard at the general terms thereof, hereinafter provided for. § 47. (As am'd in 1851.) Same as § 47, as amended in 1849, except that the last three words "hereinafter provided for" were stricken out. § 48. (Added in 1849.) The said superior court shall have jurisdiction of every suit so transferred to it, and may exercise the same powers in respect to every such suit, and any proceedings therein, as the supreme court might have exercised, if the suit had remained in that court. § 49. (Added in 1849.) It shall be the special duty of the three justices, to be elected under the provisions of this title, and of their successors, to devote their time and labors, for the term of two years, from the first of May, one thousand eight hundred and forty-nine, to the hearing and determination of the suits transferred from the supreme court, and for that purpose they, or any two of them, shall hold a general term of the said superior court, of at least two weeks in duration, in each month of the year except the month of August. (Section 49 was repealed by ch. 2, of 1851.) § 50. (Added in 1849.) Appeals from the judgments of the superior court in such suits may be taken to the court of appeals, in the same manner as from the judgments of the superior court, in actions originally commenced therein. § 51. (Added in 1849.) The provisions of section twenty-eight of this act shall apply to the said superior court. TITLE VI. Of the Courts of Justices of the Peace. SECTION 52. Repeal of certain existing provisions. RULE 53. Jurisdiction of these courts. 54. Jurisdiction in civil actions limited. 56. Undertaking therein. 1 57. Suit before justice to be discontinued. Costs. 59. The same. 60. New action in supreme court; pleadings therein. 61. Costs of action in supreme court. 62. Proceedings where several causes of action, and answer of title as to one. 63. Docketing justices' judgments, and effect thereof. 64. Rules in justices' courts. 1. The pleadings. 2. Pleadings, how put in. 3. Complaint. 4. Answer. 5. Pleadings, what to contain. 6. Demurrer. 7. Proceedings in demurrer. 8. Plaintiff to prove his case, if defendant do not appear. 9. Proceedings in action on account or instrument for the payment of money only. 10. Variance, when disregarded. 11. Amending pleadings. 12. Execution, when issuable and returnable. 13. Execution on justices' judgment docketed. 14. Requiring party to exhibit his account. 15. Certain provisions applicable to these courts. § 52. (Being § 45 of 1848.) The provisions contained in sections two, three and four of the article of the Revised Statutes, entitled “Of the jurisdiction of justices' courts," as amended by sections one and two 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. § 53. (Being § 46 of 1848.) 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 installments an action may be brought for each installment 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. (Am'd in 1849, 1851, 1860, 1861, 1862 and 1865.) § 53. (As am'd in 1849.) 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 property, or for taking, detaining or injuring personal property, if the damages claimed do not exceed one hundred dollars. (Subdivisions 3, 4, 5 and 6 same as in 1848.) 7. An action on a judgment rendered in a court of a justice of the peace, or of a justice's or other inferior court in a city, where such action is not prohibited by section seventy-one. 8. To take and enter judgment on the confession of a defendant, where the amount confessed shall not exceed two hundred and fifty dollars, in the manner prescribed by article eight, title four, chapter two of part three of the Revised Statutes. § 53. (As am'd in 1851.) Same as § 53 as amended in 1849, except that subdivision 3 was amended so as to read as follows: 3. An action for a penalty not exceeding one hundred dollars. And subdivision 9 was added, reading as follows: 9. An action for damages for fraud in the sale, purchase or exchange of personal property, if the damages claimed do not exceed one hundred dollars. § 53. (As am'd in 1860.) Same as § 53 as amended in 1851, except that subdivision 10 was added, reading as follows: 10. [§ 1.] An action to recover the possession of personal property claimed, the value of which, as stated in the affidavit of the plaintiff, his agent or attorney, shall not exceed the sum of one hundred dollars. [§ 2.] The plaintiff in such action, at the time of issuing the summons, but not afterward, may claim the immediate delivery of such property as hereinafter provided. [§ 3.] Before any process shall be issued in an action to recover the possession of personal property, the plaintiff, his agent or attorney, shall make proof by affidavit, showing: 1. That the plaintiff is the owner, or entitled to immediate possession, of the property claimed, particularly describing the same. 2. That such property is wrongfully withheld or detained by the defendant. 3. The cause of such detention or withholding thereof, according to the best knowledge, information and belief of the person making the affidavit. 4. That said personal property has not been taken for any tax, fine or assessment, pursuant to statute, or seized by virtue of an execution or attachment against the property of said plaintiff; or if so seized, that it is exempt from such seizure by statute. 5. The actual value of said personal property. [§ 4.] On receipt of such affidavit, and an undertaking in writing executed by one or more sufficient sureties, to be approved by the justice of the peace before whom such action is commenced, to the effect that they are bound in double the value of such property as stated in said affidavit for the prosecution of said action, and for the return of said property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against said plaintiff, the justice shall indorse upon said affidavit a direction to any constable of the county in which said justice shall reside, requiring said constable to take the property described therein from the defendant, and keep the same, to be disposed of according to law; and the said justice shall at the same time issue a summons, directed to the defendant, and requiring him to appear before said justice at a time and place to be therein specified, and not more than twelve days from the date thereof, to answer the complaint of said plaintiff; and the said summons shall contain a notice to the defendant that in case he shall fail to appear at the time and place therein mentioned, the plaintiff will have judgment for the possession of the property described in said affidavit, with the costs and disbursements of said action. [§ 5.] The constable to whom said affidavit, indorsement and summons shall be delivered, shall forthwith take the property described in said affidavit, if he can find the same, and shall keep the same in his custody. He shall there |