which was inserted when there was no provision for making a justice's judgment a lien upon real property.] TITLE 7. discharge. § 3034. In order to procure a discharge, as prescribed in the last Affidavit; section, the prisoner must make, and deliver to the sheriff or jailor, an affidavit, stating the facts which entitle him thereto, according to the provisions of that section. Upon receiving such an affidavit the sheriff or jailor must forthwith discharge the prisoner from his custody. He must thereupon deliver the affidavit to the clerk of the county, who must file it in his office, without fee. [Id., §§ 153 and 154.] for not ing. § 3035. A sheriff or jailor, who refuses to discharge the prisoner, Penalty upon receiving such an affidavit, forfeits twenty-five dollars for each dischargday, during which he detains the prisoner; to be recovered by the latter, in addition to any damages, which he sustains by reason of the false imprisonment. [Id., § 155.] a defence to action § 3036. The receipt of such an affidavit is a defence, to an Affidavit action brought against the sheriff or jailor, by reason of the prison- for escape. er's discharge. [Id., § 156, remodelled without substantial change; except that the provision as to pleading, has been omitted, as inapplicable under the present system; and the clause making the affidavit, or a certified. copy thereof evidence, has been omitted, as covered by § 933. ](*) not to affect § 3037. Notwithstanding the discharge of a judgment debtor, Discharge as prescribed in the last four sections, the judgment remains valid as judgment. against his property; and a new execution may be issued accordingly, as if he had not been imprisoned. [Id., § 157.] upon in action for a § 3038. In an action for a chattel, the possession of which has Execution not been delivered to the prevailing party, an execution, for the deliv- judgment ery of the possession thereof to him, as well as for any damages recov- chattel. ered by him, may be issued by the justice; unless the judgment has been docketed in the county clerk's office, as prescribed in title sixth of this chapter. It must be to the same effect, and executed in the 77 TITLE 7. same manner, as a like execution issued upon a judgment rendered in the supreme court; except that it must be directed generally to any constable of the county; and that the direction to satisfy a sum of money, out of the property of the judgment debtor, must be in the form prescribed in this title for a like direction, where an execution is issued by a justice of the peace, upon a judgment for a sum of money. Action against for not re turning [Substituted for part of L. amended by L. 1865, ch. 616. 1860, ch. 131, § 10 (5 Edm., 136), as See §§ 1731 and 3026.](*) § 3039. If a constable fails to return an execution within five constable days after the return day thereof, the party, in whose favor it was execution. issued, may recover, in an action against the constable, the amount of the execution, if it was issued upon a judgment for a sum of money; or if it was for the delivery of the possession of a chattel, the value of the chattel, as specified in the judgment, together with the damages and costs awarded thereby; and, in either case, with interest from the time when the judgment was rendered. Constable not to act cution after re [Section 159 of the R. S., amended by inserting the clause relating to a chattel; and by omitting the last clause, allowing execution to issue, as unnecessary.] § 3040. A constable shall not levy upon or sell property, or arrest under exe- a defendant, or take possession of a chattel, by virtue of an execution, after the time limited therein for its return, unless the execution has been renewed; nor shall he do any act under a renewed execution, after the expiration of the time for which it has been renewed. turn day. Action against for money [Id., § 161, amended by inserting the words, "or take possession of a chattel;" and by substituting the word "arrest" for "imprison."] § 3041. Where money, collected by a constable upon an execu constable tion, is not paid over by him according to law, any person entitled thereto may maintain an action in his own name, upon the instrument of security given by the constable and his sureties; and may recover therein the sum so collected, with interest from the time when it was collected. collected. Duty of constable whose term of office has expired. [Id., § 163.] § 3042. A constable, to whom an execution is delivered, whose term of office expires on or before the return day thereof, must pro 78 ceed thereupon in the same manner, as if his term of office had not expired; and he and his sureties are liable for any neglect of duty, with respect to the execution, or for money collected thereunder, or for damages sustained by reason of any act done by the constable, touching the execution, in the same manner, and to the same extent, as if his term of office had not expired. [Id., §§ 285 and 286 (3 R. S., 5th ed., 461; 2 Edm. 283), amended by substituting the words, "on or before the return uav thereof," for "before the time within which the collection or return of such execution is required by law;" and by the insertion of the words, " or for damages sustained by reason of any act done by the constable, touching the execution," which are rendered necessary by the extension of the liability of constables' sureties, created by L. 1872, ch. 788 (9 Edm., 481).] TITLE 8. Execution upon ment with clerk. § 3043. Where a judgment, rendered by a justice of the peace, judg has been docketed with a county clerk, upon the filing either of a docketed transcript from the justice's docket, or of a transcript from the county clerk's docket of another county, the execution, to be issued thereupon by the county clerk, must be in the same form, and executed in the same manner, as an execution issued upon a judgment of the county court; except as otherwise prescribed in section 1367 of this act; and except, also, that, where the judgment is for a sum less than twenty-five dollars, exclusive of costs, the direction to satisfy the judgment out of the real property of the judgment debtor must be omitted. In that case the provisions of this act, relating to the satisfaction of an execution out of the judgment debtor's real property, are not applicable thereto. (a) [Co. Proc., § 64, subd. 13, amended by inserting the reference to § 1367.] TITLE VIII. Appeals. ARTICLE 1. Appeals generally. 2. Appeal where a new trial is not had in the appellate court. 3. Appeal for a new trial in the appellate court. 79 TITLES. Justice's judgment ARTICLE FIRST. APPEALS GENERALLY. SEC. 3044. Justice's judgment reviewed by appeal. 3045. Who may appeal. To what court appeal to be taken. 3047. Service of notice upon justice; payment of costs and fee. 3049. Amendment when allowed. 3050. Undertaking to stay execution upon judgment. 3051. Proceedings; how stayed. 3052. Id.; when justice is dead, etc. 3053. Return. 3054. Id.; when justice has gone out of office. 3055. Further return; how compelled. 3056. Id.; when justice is dead, etc. 3057. Proceedings when error in fact is alleged. 3058. Restitution upon reversal. 3059. Setting off costs and recovery. 3060. Certain sums may be included in disbursements. 3061. Judgment-roll. § 3044. The only mode of reviewing a judgment, rendered by a reviewed justice of the peace in a civil action, is by an appeal, as prescribed by appeal. Who may appeal to in this title. [Co. Proc., § 351, last clause, so far as it relates to courts of justices. of the peace.] § 3045. An appeal may be taken by any party aggrieved by the judgment. Where the judgment was rendered by a justice of the be taken. peace of the city of Buffalo, the appeal must be to the superior court of that city; in every other case, it must be to the county court of the county where the judgment was rendered. Appeal; when and how taken. [Co. Proc., § 325, and so much of § 352, as relates to the court, to which appeals are to be taken from judgments rendered by justices of the peace. See 19 Hun, 88.] § 3046. An appeal must be taken, within twenty days after the entry of the judgment in the justice's docket; except that, where a defendant appeals from a judgment rendered in an action, wherein he did not appear, and the summons was not personally served upon him, the appeal may be taken within twenty days after personal service upon him, on the part of the plaintiff, of written notice of the entry of the judgment; but not after the expiration of five years from the entry of the judgment. An appeal is taken by serving upon the justice by whom the judgment was rendered, and upon the respondent, a written notice of appeal. [Co. Proc., § 353, and part of § 354, entirely remodelled, but unchanged in substance, except as follows. The words, "the entry of " have been inserted, in accordance with Fachs v. Pullman, 2 Daly, 210. The phrase, "personal service upon him, on the part of the plaintiff, of written notice of the entry," has been substituted for "personal notice," so as to conform the statute to the ruling in Pearson v. Lovejoy, 53 Barb., 407. The requirement, that the notice of appeal shall state the grounds upon which the appeal is founded," has been omitted. Under this provision, in the former statute, the decisions were in hopeless conflict, as to the power of the appellate court to consider any alleged error, not pointed out in the notice of appeal, and as to the degree of certainty with which the grounds of the appeal must be stated; and much time was consumed, in the appellate courts, in determining questions of this class, which are, from their very nature, of endless variety. It would be unprofitable to review, in this note, the numerous cases on these subjects. Some of them may be found in Wait's Law and Practice, 2d ed., pp. 773-783, where the whole question is fully and ably discussed. The requirement served no useful purpose, which called for the preservation of such a bone of contention, and upon principle, there appears to be no sufficient reason, why the rule, governing a notice of appeal from a judgment rendered by a court of record, should not apply to an appeal from the judgment of a justice of the peace. The phrase, "but not after the expiration of five years from the entry of the judgment," has been inserted, as a proper limitation in such cases. ] ART. 1. notice justice; of costs and fee. § 3047. Service of the notice of appeal upon the justice, must be Service of made by delivering it to him personally, or to his clerk, appointed upon pursuant to law; but if the justice is dead, or if neither he nor his payment clerk can, after reasonable diligence, be found within the county, service of the notice upon the justice may be made, by delivering it to the clerk of the appellate court. Unless the justice is dead, the appellant must, at the time of serving the notice, pay to the person to whom it is delivered the costs of the action, included in the judg ment, and the sum of two dollars, as the fee of the justice for making the return. [Co. Proc., part of § 354, first sentence, and § 359, amended by substituting "appointed pursuant to law," for "if there be one"; by allowing the notice to be served on the clerk of the appellate court, when neither the justice nor clerk can, after reasonable diligence, be found within the county, instead of upon the clerk of the county where the justice or clerk for any cause, cannot be personally served; and by inserting the words, "unless the justice is dead."] |