by affidavit, that the justice, before whom the action or special proceeding is pending, is a material witness for the defendant, without whose testimony he cannot safely proceed to trial, setting forth therein the particu lar facts and circumstances, which he expects to prove by him; the justice must forthwith make a written order, directing the action or special proceeding to be continued before another justice of the same town or city, named in the order.

See 2 R. S. 229, § 21 (2 Edm. 245); also, id., § 118, amended, L. 18 W ̧ ch. 243; L. 1875, ch. 334; Board of Comm. e. Doherty, 16 How. 46: Young r. Scott, 3 Hill, 23: Brown v. Brown, 2 E. D. S. 153; Hopkins e. Cabres, 2 Wend. 264; Vandeveer v. Stanton, I Cow. 84; Murtha e. Walters, 2 Sandf

517.

§ 3152. Proceedings upon transfer.-Where an order is made, as prescribed in either of the last two sections, the constable must forthwith take it and all other papers in the action, with the body of the defendant, if he is under arrest, before the justice named in the order. The plaintiff or petitioner must forth with appear before that justice, who must take cognizance of the action or special proceeding, and must proceed therein as if it had been commenced before him. Costs, recovered in the action or special proceeding, include the fees allowed by law, for services performed by the constable and the justice, before the transfer, together with the fees allowed by law, for the proceedings before the justice to whom the cause is transferred.

See note to last section. Hopkins v. Cabrey, 24 Wend. 264; Young r. Scott, 3 Hill, 32.

3153. Penalty for not paying over money. - A justice of the peace, who neglects or refuses, within a reasonable time after demand, to pay any money, collected by him in his official capacity, to the person entitled thereto, is guilty of a misdemeanor, and shall be punished accordingly. A conviction also operates as a forfeiture of his office.

Section 259 of R. S.

§ 3154. Action on judgment of justice.-In an action upon a judgment of a justice of the peace, brought in the county wherein it was rendered, within five years after the rendition thereof, against a defendant upon whom the summons was personally served, no costs can be recovered, except where the justice, who rendered

the judgment, is dead, or out of office, or otherwise incapable of acting; or has removed from the county; or where one of the parties has died; or where the docket of the judgment has been lost or destroyed.

Code of Proc., 71, last clause.

3155. Id.; proof of judgment, etc. - In an action brought upon a judgment of a justice of the peace, who is dead, or out of office, or otherwise incapable of acting; or has removed from the county; or cannot be found therein; the original docket-book of the justice is presumptive evidence of any matter entered therein, as prescribed by law; but the presumption may be repelled by proof. If the docket-book is lost or destroyed, or if it cannot be produced, after reasonable effort to obtain it, the like proof may be given, respecting the recovery of the judgment, as upon any other question of fact.

Sections 265 and 267, R. S.

3156. Execution of mandate by private person. A justice of the peace, who issues any mandate, authorized by this chapter, except a venire, may, at the request of the party, whenever he deems it expedient so to do, empower, by a written authority indorsed upon the mandate, any proper person of full age, not a party to the action, to serve or otherwise execute it. For that purpose the person so empowered has all the power and authority, and is subject to all the obligations and liabilities, of a constable; and his return is evidence in like manner as a constable's. But a person so empowered is not entitled to any fee or reward for his services.

Sections 271 and 272, R. S. Jackson v. Sherwood, 50 Barb. 356.

3157. Constable to execute mandates in person. A constable, to whom a mandate is directed and delivered as prescribed in this chapter, must execute it in person, pursuant to the tenor thereof. He cannot act by deputy in such a case.

Id., 273.

3158. Sheriff to act where execution of mandate is resisted. If a constable, to whom a mandate, issued by a justice of the peace, is directed and delivered, finds, or has reason to apprehend, that resistance will be made

to the execution thereof, he may deliver it to the sheriff of the county, with a written certificate, stating the facts, and requiring the sheriff to execute it. Thereupon the sheriff must execute the mandate; and he is subject to all the liabilities attaching to a constable in executing it. Sections 104, 105, and 106 of this act apply to a mandate delivered to a sheriff, as prescribed in this section.

New; see, also, 104-106, ante.

CHAPTER XX.

PROVISIONS RELATING TO CERTAIN COURTS IN CITIES, AND THE PROCEEDINGS THEREIN.

TITLE I. THE MARINE COURT OF THE CITY OF NEW-YORK.

TITLE II. THE MAYOR'S COURT OF THE CITY OF HUDSON, AND THE RECORDERS' COURTS

TITLE III.

OF THE CITIES OF UTICA AND OSWEGO. -THE CITY COURT OF YONKERS.

TITLE IV. -THE DISTRICT COURTS OF THE CITY OF NEW-YORK, AND THE JUSTICES' COURTS

TITLE

OF THE CITIES OF ALBANY AND TROY. V.- THE MUNICIPAL COURT OF THE CITY OF ROCHESTER.

TITLE I.

The marine court of the city of New-York.

ARTICLE 1. Provisions generally applicable to proceedings in the court, 2. Provisions exclusively applicable to the proceedings, other than appeals, in an ordinary action.

3. Provisions exclusively applicable to the proceedings, other than appeals, in certain marine causes.

4. Appeals to and from the general term of the court.

ARTICLE FIRST.

PROVISIONS GENERALLY APPLICABLE TO PROCEEDINGS IN THE COURT.

SEC. 3159. Provisions, applying generally to courts of record, subject to certain qualifications.

3160. Certain sections inapplicable to the court.

3161. Time for service of notices.

3162. Service of notice of trial; filing of note of Issue.

3163. When court may relieve from imprisonment.

3164. Money; how paid into the court.

3159. Provisions, applying generally to courts of record, subject to certain qualifications. Each of the foregoing provisions of this act, which is made, by chapter twenty-second of this act, applicable to the marine court of the city of New-York, or generally to courts of record, is subject to the qualifications and exceptions expressed or plainly implied in this title.

L. 1872, ch. 629, § 2.

§ 3160. Certain sections inapplicable to the court.Sections 438 and 603, sections 611 to 619, both inclusive, and sections 636, 827, 1013, and 1015 of this act do not apply to an action or a special proceeding brought in the marine court of the city of New-York, or before a justice thereof, or to any proceeding therein. Sections 3268 and 3269 of this act do not apply to an action in the court, prosecuted as prescribed in article third of this title; or where an undertaking has been given as prescribed in section 3165 of this act. A plaintiff, in an action brought in the court, who has an office for the regular transaction of business in person, within the city of New-York, is deemed a resident of that city, within the meaning of sections 3268 and 3269 of this

act.

New.

The time for

§ 3161. Time for service of notices. personal service of certain notices, in an action brought in the court, is as follows:

1. Notice of justification of the sureties, in an undertaking given by the plaintiff, as security for the defendant's costs, not more than two days.

2. Notice of an application for judgment in a case specified in section 537 of this act; notice of a motion to strike out a pleading, in a case specified in section 538 of this act; notice of an application for judgment upon the defendant's default, or of the execution of a reference, or writ of inquiry, or of an assessment thereupon, as prescribed in section 1219 of this act; not less than two days.

3. Notice of the justification of bail, not less than two, nor more than ten days.

4. Notice of a motion, other than a motion specified in subdivision second of this section, not less than four days; but the court or a justice thereof may, upon an