Where, upon the trial of an action, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars, judgment of discontinuance must be rendered against the plaintiff, with costs. Id.. 54. Lamoure v. Caryl, 4 Den. 370; Parker v. Eaton, 25 Barb. 122; Glackin v. Teller, 52 id. 147. 2951. Answer of title. with or without other matter of defence, set forth in - The defendant may, either his answer facts, showing that the title to real property will come in question. Such an answer must be in writing; and it must be signed by the defendant, or his attorney or agent, and delivered to the justice. justice must, thereupon, countersign the answer, and deliver it to the plaintiff. The Code Proc., 55. Sage v. Barnes, 9 Johns. 365; Hinds v. Page, 6 Abb. N. S. 53; Weeks v. Stroble, 36 How. 123; Shull v. Green, 49 Barb. 311; 34 How. 418; Houghtaling v. Houghtaling, 5 Barb. 379; Tuthill v. Clark, 11 Wend. 642; Brotherton v. Wright, 15 id. 237; Adams v. Rivers, 11 Barb. 390; Brown v. Schofield, 8id. 239; Bellows v. Sackett, 15 id. 96; Fred. & S. Pl. R'd Co. v. Wait, 27 id. 214; Boyer v. Schofield, 2 Keyes, 628: Fleet v. Youngs, 7 Wend. 291; Heintz v. Dillinger, 28 How.39; Hinds v. Paige, 6 Abb. N. S. 58; Hawkins v. Peterson, 9 Week. Dig. 408; Althouse v. Rice, 4 E. D. Smith, 317; Ryan v. Harrington, 9 Hun, 520; Rathbone v. McConnell, 21 N. Y. 466; 8. c., 20 Barb. 311; O'Reilly v. Davies, 4 Sandf 722: Doolittle v. Eddy, 7 Barb. 74; Launitz v. Barnum, 4 Sandf. 637; Ehle v. Quackenboss, 6 Hill, 537; Pierrett v. Moller, 3 E. D. Smith, 574; Alleman v. Day, 49 Barb. 641; O'Donnell r. Brown, 3 Lans. 474: Smith v. Mitten, 13 How. 325; Wetter v. Blodget, 4 N. Y. Leg. Obs. 263; Whiting v. Dudley, 19 Wend. 373; Randall v. Crandall, 6 Hill, 342; Kelly v. N. Y. & Manhattan R. R. Co.,19 Hun, 363; Heath . Barmour, 53 Barb, 444; 8. C., 50 N.Y. 302; Little v. Devin, 34 id. 452; Main v. Cooper 26 Barb. 468; s. c., 25 N. Y. 130; Haley v. Wheeler, 8 Hun, 569; Stormis v. Snyder, 10 Johns. 108; Smith e. Riggs, 2 Duer, 622; Hardrop v. Gallagher, 2 E. D. S. 523; Clapman v. Swan, 65 Barb. 210; Main v. Cooper, 25 N. Y. 180; Snyder v. Beyer, 3 E. D. Smith, 235. 2952. Undertaking thereupon.- In the case specified in the last section, the defendant must also deliver to the justice, with the answer, a written undertaking, executed by one or more sureties, approved by the justice; to the effect that, if the plaintiff, within twenty days thereafter, deposits with the justice a summons and complaint in a new action, for the same cause, to be brought in the proper court, as prescribed in the next section, the defendant will, within twenty days after the deposit, give a written admission of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking must further provide, that he will, at all times, render himself amen able to any mandate, which may be issued to enforce a 37 final judgment in the action so to be brought. If the defendant fails to comply with the undertaking, the sureties are liable thereupon, to an amount not exceeding two hundred dollars. Code of Proc., part of ? 56, amended. Lalliette v. Van Keuren,7 How. 409; Wiggins v. Tallmadge, id. 404; Davis v. Jones, 4 id. 340; Randall v. Crandall, 6 HI, 342: Adams v. Rivers, 11 Barb. 390; Koon e. Martzan, 6 Hill, 44; Thompson v. Blanchard, 3 N. Y. 335; Seacord e. Morgan, 4 Abb. N. S. 249; 35 How. 487; 3 Keyes, 636; 17 How, 394; Roberts r. Donnell, 31 N. Y. 446; 1 Abb. N. S. 4. 2953. In what court new action to be brought.The court in which a new action is to be brought, as prescribed in the last section, is the supreme court, or the county court of the justice's county, at the plaintiff's election; except that, where the justice is a justice of the peace of the city of Buffalo, it is the superior court of Buffalo. Id., 56. Kundolf v. Thalheimer, 12 N. Y. 593. 2954. When action before justice to be discontinued. Upon the delivery of the undertaking to the justice, the action before him is discontinued, and each party must pay his own costs. The costs so paid by either party must be allowed to him, if he recovers costs in the new action, to be brought as prescribed in the last two sections. If the plaintiff fails to deposit with the justice a summons and complaint in the new action, before the expiration of twenty days after the delivery of the undertaking, the defendant may maintain an action against the plaintiff to recover his costs before the justice. Id., 57. Little v. Denn, 24 N. Y. 452; 1 Keyes, 235; 34 How. 68. 2955. Effect of failure to give undertaking. If the undertaking is not delivered to the justice, he has jurisdiction of the action, and must proceed therein; and the defendant is precluded, in his defence, from drawing the title in question. Code of Proc., 158. § 2956. When title comes in question on plaintiff's own showing.-If, however, it appears, upon the trial, from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint, with costs, and render judgment against the plaintiff accordingly. Id., 59. Bowyer v. Schofield, 1 Abb. Ct. App. Dec. 177; Nixon v. Jenkins, 1 Hilt. 318; Bellows v. Sackett, 15 Barb. 96; Adams v. Beach, 6 Hill, 271; Koon v. Mazuzan, id. 44; Browne v. Scofield, 8 Barb. 239; Babcock v. Lamb, 1 Cow. 238; Saunders v. Wilson, 15 Wend. 338; Dewey v. Bordwell, 9 id. 65; Alleman e. Dey, 49 Barb. 641; Striker v. Mott, 6 Wend. 465; Gage v. Hill, 43 Barb. 41; Hastings v. Glenn, 1 E. D. S. 402; Eagle v. Swayze, 2 Daly, 140; Main v. Cooper, 25 N. Y. 180; Nichols v. Bain, 42 Barb. 353; 27 How. 286; Taylor v. Scoville, 54 Barb. 34: Balja v. Rawley, 37 How. 120; Heintz v. Dellinger, 28 id. 39; 42 Barb. 363; Clow v. Van Loan, 4 Hun, 184; Ryan v. Harrigan, 9 id, 520. $2957. Pleadings in new action. Undertaking before justice, when applicable.-In the new action, to be brought after an action before a justice is discontinued, by the delivery of an answer and an undertaking, as prescribed in the last six sections of this act, the plaintiff must complain for the same cause of action only, upon which he relied before the justice; and the defendant's answer must set up the same defence only, which he made before the justice. If the action is to recover a chattel, which was replevied in the justice's court, each undertaking, given in the justice's court, continues to be valid in, and is applicable to, the new action. Code of Proc., § 60. Brotherton v. Wright, 15 Wend. 237; Tuthill v. Clark, 11 id. 642; Wendell v. Mitchell, 5 How. 424; Cusson v. Whalon, id. 302; McNamara v. Bitely, 4 id. 44; 2 C. R. 42; People ex rel. v. Albany, 19 Wend. 123; Wiggins v. Tallmadge, 7 How, 404; Brown v. Brown, 6 N. Y. 106; 6 How. 320; Pugsley . Kesselburgh, 7 id. 492; 10 N. Y. 420; Dorman v. Lang, 3 How. 59; Flora v. Carbean, 38 N. Y. 111; Clyde Plank R'd Co. v. Baker, 12 How. 371; 22 Barb. 323; Morss v. Salisbury, 48 N. Y. 637: Heath v. Barmour, 35 How. 1; 53 Barb. 444; 50 N. Y. 302; Hail v. Hodskins, 30 How. 15. $2958. Answer of title as to one of several causes of action. Where, in an action before a justice, the plaintiff has two or more causes of action, and the defence, that the title to real property will come in question, is interposed as to one or more, but not as to all of them; the defendant may deliver an answer and undertaking as prescribed in sections 2951 and 2952 of this act, with respect to the cause or causes of action only, in which title will so come in question. Whereupon the justice must discontinue the action as to those causes of action only; the plaintiff may commence a new action there for in the proper court; and the original action must proceed as to the other causes. Code of Proc., part of 62. TITLE IV. Proceedings between the joinder of issue and the trial. ARTICLE 1. Adjournments. 2. Compelling the attendance of a witness. 3. Commission to take testimony. ARTICLE FIRST. ADJOURNMENTS. SEC. 2959. Adjournment by justice. 2960. Adjournment on application of plaintiff. 2962. Id.; undertaking thereupon. 2963. Undertaking to procure discharge of defendant from custody. 2964. When defendant to be discharged. 2965. Subsequent adjournments. 2966. Justice may impose conditions upon adjournment. 2967. Adjournment when warrant to attach absent witness is issued. 2968. Adjournment not to exceed ninety days. $2959. Adjournment by justice.-At the time of the return of a summons, or of the joinder of issue without process, but at no other time, the justice may, in his discretion and upon his own motion, adjourn the trial of the action not more than eight days, unless the defendant has been arrested; in which case, no such adjourn ment shall be made. 2 R. S. 238, 67, 68 (2 Edm. 254). Houghhey v. Wilson, 1 Hilt. 259; Allen v. Edwards, 3 Hill, 499; Wilcox v. Clement, 4 Den. 160; Speidell r. Fash, 1 Cow. 234; Thompson v. Sayre, 1 Den. 175; Nellis r. McCarn, 35 Barb. 115; Proudit v. Henman, 8 Johns. 390; Hogan v. Baker, 2 E. D. S. 22; Kimball . Mack, 10 Wend. 497; Palmer v. Green, 1 Johns. Cas. 101; Coldenr. Dopkin, 3 Cai. 171; Gamage e. Law, 2 Johns. 192; Dunham v. Heyden, 7 id. 381; McCarty v. McPherson, 11 id. 406; Payne 1. Wheeler, 15 id. 491; Redfield v. Florence, 2 E. D. Smith, 339; Wight r. McClave, 3 id. 316; Alberhall v. Roach, id. 345; McCollum r. McClave, 1 Hilt. 140; 3 Abb. 106; Hard v. Shipman, 6 Barb. 621; Seymour . Bradfield, 35 id. 49; Willoughby r. Carleton, 9 Johns. 136; Tift r. Culver, 3 Hill, 180; Fanning v. Trowbridge, 5 id. 428; Weeks r Lyon, 18 Barb. 530; Peck v. Andrews, 32 id. 445; Fiero v. Reynolds, 20 1d. 275; Kilmore . Sudam, 7 Johns. 529; Peck v. McAlpine, 3 Cai, 166; Mason v. Campbell, 1 Hilt. 291. 2960, Adjournment on application of plaintiff. — At the time of the return of a summons, or of the joinder of issue without process, the justice must, upon the application of the plaintiff, adjourn the trial of the action, not more than eight days, to a time fixed by the justice. But such an adjournment shall not be granted unless the plaintiff or his attorney, if required by the defendant, makes oath that the plaintiff cannot, for want of some material testimony or witness, specified by him, safely proceed to trial. 2 R. S. 238, part of 2 69 and 70 (2 Edm. 254, 255). Pope v. Hart, 39 Barb. 360. § 2961. Adjournment on application of defendant.— At the time of the joinder of issue, the justice must, upon the application of the defendant, adjourn the trial of the action, upon his complying with the following requirements: 1. The defendant or his attorney must, if required by the plaintiff, or by the justice, make oath that he verily believes that the defendant has a good defence to the action, and that he cannot safely proceed to trial, for want of some material testimony or witness, specified by him. 2. If required by the plaintiff, and the defendant has not been arrested in the action, an undertaking must be given to the plaintiff in behalf of the defendant, as prescribed in the next section. But such an undertaking need not be given, where the action is to recover a chattel. Such an adjournment must be for such a reasonable time, fixed by the justice, as will enable the defendant to procure the testimony or witness. Id.. 74 and 70. Muber v. Held, 3 Abb. 110; Burgett v. Edwards, 3 Lans. 193; Humburch v. Hubbell, 19 Alb. L. J. 399; Peck v. Andrews, 32 Barb. 445; Onderdonk v. Ranlett, 3 Hill, 323; Nellis v. McCarn, 35 Barb. 115. $2962. Id.; undertaking thereupon. The undertaking prescribed in the last section must be executed by one or more sureties, approved by the justice; and must be to the effect that, if the plaintiff recovers judgment in the action; and if, before the expiration of ten days after the plaintiff becomes entitled to an execution upon the judgment, the defendant removes, secretes, assigns, or in any way disposes of any part of his property, liable to levy and sale by virtue of an execution, except for the necessary support of himself and his family, and if an execution upon the judgment is returned wholly or partly unsatisfied; the sureties will, |