§ 1259, Consol. Act.

$1260, Consol. Act.

$1261, Con1. Act.

then in session at chambers; in which case it must be made immediately after the opening of the court, on the first day thereafter, when it is there in session. If the defendant has given bail, the undertaking of the bail must be returned, to be delivered to the plaintiff when the court so directs.

§ 3185. Unless both parties sooner appear, the court must wait one hour after the return; or, if the defendant has given bail, one hour after the opening of the court. As soon after the parties appear, or after the expiration of the hour, as the business upon which the court is then engaged will permit, the court must take up the cause. If the plaintiff does not then appear, a judgment dismissing the complaint, with costs, must be rendered. If the defendant does not then attend in person, the plaintiff must then make his complaint, and the defendant's default must be entered. If the plaintiff appears and the defendant attends in person, the pleadings must then be made, and issue must be joined. The pleadings may be oral or writ ten; if they are oral, the clerk must enter the substance thereof in the minutes. If either party desires a trial by a jury, he must demand the same, at the time of the joinder of issue; otherwise the issue must be tried by the court, without a jury.

§ 3186. Where a trial by jury is duly demanded, the court at chambers must direct the issue to be tried, at a trial term, upon such notice as it deems proper, or without notice, it may also direct that the action have a preference upon the day calendar, either generally or for a particular day; and it may give such direction as it deems proper, with respect to filing a note of issue. Where a trial by jury is not duly demanded, or where the defendant is in default, the evidence must then, or at such subsequent time, either at chambers or at a trial term or special term, as the court at chambers appoints, be given; and thereupon final judg ment must be rendered. But the issue must be appointed to be tried, within six days after the joinder thereof, unless both parties assent to a longer time; or a trial by jury is demanded, and there is no term of the court, at which it can be had, within that time. The trial cannot be adjourned, without the consent of both parties, beyond three calendar months from the joinder of issue.

§ 3187. This article does not prevent the plaintiff from commencing, and conducting in the ordinary manner, an action, for a cause specified in subdivision second of section three hundred and seventeen of this act.

$3188. An appeal, to the general term of the court, may be taken from a final judgment rendered therein, in a case where an appeal may be taken to the general term of the supreme court, from a final judgment rendered therein, as prescribed in section one thousand three hundred and forty-six of this act.

§ 3189. An appeal, to the general term of the court, may also be taken from an interlocutory judgment renered, or an order made, at a special term or a trial term thereof, or an order made by a justice thereof, out of court, in a case, where an appeal may be taken to the general term of the supreme court, from an interlocutory judgment rendered, or an order made, in like manner, as prescribed in sections one thousand three hundred and fortyseven, one thousand three hundred and forty-eight, and one thousand three hundred and forty-nine of this act.

$$1266, 1276, Consol. Act

§ 1267, Con

sol. Act.

§ 3190. An appeal, authorized by the last section, must § 1268, Conbe taken within ten days after service of a copy of the sol. Act. judgment or order appealed from, and a written notice of the entry thereof. In every other respect, titles first and fourth of chapter twelfth of this act, apply to and govern an appeal, taken as prescribed in either of the last two sections. § 3191. [Am'd 1882.] An appeal may be taken to the $1269, Concourt of common pleas for the city and county of New sol. Act. York, from an actual determination, made by the marine court of the city of New York, at a general term thereof, in either of the following cases:

1. Where a final judgment has been rendered, upon an appeal taken to the general term.

2. Where an order has been made, granting a new trial. But an appeal cannot be taken, from an order granting a new trial, upon a case or exceptions, unless the notice of appeal contains an assent, on the part of the appellant, that if the order is affirmed, judgment absolute may be rendered against the appellant.

3. Where an order has been made which grants, refuses, continues, or modifies a provisional remedy; or, where it involves some part of the merits, or where it affects a substantial right, or where, in effect, it determines the action and prevents a judgment from which an appeal might be taken,

13 Daly 179.

1270, Consol. Act.

§ 1271, Consol. Act.

§ 1273, Consol. Act.

§ 1274, Consol. Act.

§§ 3192, 3198 § 3192. Titles first and third of chapter twelfth of this act apply to and govern an appeal, taken as prescribed in the last section, except as otherwise expressly prescribed in the next two sections.

§ 3193. An appeal, authorized by the last section, must be taken within twenty days after service of a copy of the judgment or order appealed from, and a written notice of the entry thereof. The appeal must be heard at a general term of the appellate court.

§ 3194. The judgment or order of the appellate court must be remitted to the court below, to be enforced according to law. Upon an appeal from an order granting a new trial, on a case or exceptions, if the appellate court determines that no error was committed in granting the new trial, it must render judgment absolute upon the right of the appellant; and thereupon an assessment of damages, or any other proceeding, requisite to render the judgment effectual, may be had in the marine court.

3195. Upon an appeal to the court of appeals, the notice of appeal and undertaking must be filed with the clerk of the marine court, who must transmit the necessary papers to the court of appeals; and the judgment or order of the court of appeals must be remitted to and enforced by the marine court.

TITLE II.

The mayor's court of the city of Hudson, and the recorder's courts of the cities of Utica and Oswego.

§ 3196. The civil jurisdiction of the mayor's court of the city of Hudson, the recorder's court of the city of Utica, and the recorder's court of the city of Oswego, extends only to an action whereof jurisdiction is expressly conferred upon the court, by a provision of a statute incorporating, or otherwise specially relating to the government of, the city wherein the court is located.

§ 3197. Every civil action, now pending in either of those courts, other than an action specified in the last section, is hereby transferred to the supreme court; and the subsequent proceedings therein, before and after the judg ment, must be the same, as if the action had been commenced in the supreme court.

§ 3198. All judgment-rolls, and other records, and all books and papers, relating exclusively to civil actions, other than an action specified in the last section but one, now re maining in either of those courts, must be delivered by the

clerk thereof, or, if there is no clerk, by the judge or other officer, having the custody thereof, to the clerk of the county in which the court is located, to be preserved among the records of his office. The expense of so doing is a county charge.

3199. The supreme court may review, enforce, vacate, or amend a final judgment heretofore rendered by either of those courts, in a civil action, other than an action specified in section three thousand one hundred and ninety-six of this act, with like power and effect, as the court in which it was commenced might have so done, if this act had not been passed.

§ 3200. The county court of the county in which either of those courts is located, may, by an order, remove to itself an action of which either of those courts has jurisdiction, as prescribed in section three thousand one hundred and ninety-six of this act, upon proof, by affidavit, that the judge thereof is, for any cause, incapable of acting, either generally or in the particular action. Sections three hundred and forty-four, three hundred and forty-five and three hundred and forty-six of this act apply to such an order of removal, and to the proceedings subsequent theretc. The proceedings subsequent to the order are the same, as in an action brought in the county court, except that costs must be awarded, as if the action had remained in the court from which it was removed.

§ 3201. A subpœna, issued out of either of those courts, may be served upon a witness, at any place within the State. A warrant to apprehend a witness, for a failure to obey such a subpoena, may be directed to the sheriff of the county where the court is located, and executed by him within any county of the State. The sheriff is subject to the same liability, for a failure to serve or return it, as if it was issued out of the supreme court.

§ 3202. This title does not affect any provision of law conferring upon a judge, or upon the judges, of either of those courts, jurisdiction, power or authority, in an action brought in another court, or in a special proceeding.

TITLE III.

The city court of Yonkers.

§ 3203. Jurisdiction in civil ac- § 3206. This title does not affect

tions.

3204. Last section qualified. 3205. Summons, where served.

jurisdiction of the court, etc., in special proceedings.

§ 3203. The jurisdiction of the city court of Yonkers extends to the following civil actions only:

1. An action against a natural person, or against a foreign or domestic corporation, wherein the complaint demands judgment for a sum of money only, or to recover one or more chattels, with or without damages for the taking, withholding, or detention thereof.

2. An action to foreclose or enforce a lien, upon real property in the city of Yonkers, created, as prescribed by statute, in favor of a person who has performed labor, or furnished materials to be used, in erecting, altering, or repairing a building, building lot, or appurtenance thereto, including fences, sidewalks, paving, wells, fountains, fishponds, ornamental and fruit trees, and every other improve ment to a building or building lot.

3. An action to foreclose or enforce a lien, for a sum not exceeding one thousand dollars, exclusive of interest, upon one or more chattels.

§ 3204. [Am'd 1888.] The jurisdiction conferred by the last section is subject to the following limitations and regulations:

1. In an action wherein the complaint demands judgment for a sum of money only, the sum for which judgment is rendered in favor of the plaintiff cannot exceed one thou sand dollars; exclusive of interest and costs as taxed: except where it is brought upon a bond or undertaking given in an action or special proceeding in the same court, or before the city judge. Where the action is brought upon a bond or other contract, the judgment must be for the sum actually due, without regard to a penalty therein contained; and where the money is payable in installments. successive actions may be brought for the installments as they become due.

2. In an action to recover one or more chattels, a judg ment cannot be rendered in favor of the plaintiff for a chattel or chattels, the agregate value of which exceeds one thousand dollars.

3. The court has not jurisdiction of an action against an executor or administrator in his representative capacity. 4. The court has not jurisdiction of any action, unless one of the parties thereto resides in the city of Yonkers, or in a town of Westchester County, adjoining that city; or a warrant of attachment is granted to accompany the summons, and levied upon property of the defendant within that city; or the action is brought to recover one or more statutory penalties by the city of Yonkers, or one of its officers or boards of commissioners. Such warrant of attachment must be granted and subsequent proceedings taken in accordance with the provisions and requirements herein relating to attachments in courts of justices of the peace.

§ 3205. The summons, in an action brought in the court, may be served at any place within the county of Westchester, but not elsewhere.

§ 3206. This title does not affect any provision of law, conferring upon the court, or upon the city judge of Yonkers, jurisdiction, power, or authority, in a special proceeding; or conferring upon the city judge of Yonkers power or authority, in an action brought in another court.