§ 2852. Testamentary guardian; qualification, letters, etc. Where a will, containing the appointment of a guardian, is admitted to probate, the person appointed guardian must, within thirty days thereafter, qualify as prescribed in section 2594 of this act; otherwise he is deemed to have renounced the appointment. But the surrogate may extend the time so to qualify, upon good cause shown, for not more than three months. And any person interested in the estate may, before letters of guardianship are issued, file an affidavit setting forth with respect to the guardian so appointed, any fact which is made by law an objection to the issuing of letters testamentary to an executor. Sections 2636 to 2638 of this act, both inclusive, apply to such an affidavit and to the proceedings thereupon. A person appointed guardian by will may, at any time before he qualifies, renounce the appointment by a written instrument, under his hand, filed in the surrogate's office.

§ 2853. When security required from guardian appointed by will or deed. Where a guardian of an infant's person or property has been appointed by will or by deed, the infant, or any relative or other person in his behalf, may present, to the surrogate's court in which the will was admitted to probate; or to the surrogate's court of the county in which the deed was recorded; a written petition, duly verified, setting forth, either upon his knowledge, or upon his information and belief, any fact, respecting the guardian, the existence of which, if it was interposed as an objection to granting letters testamentary to a person named as executor in a will, would make it necessary for such a person to give a bond, in order to entitle himself to letters; and praying for a decree, requiring the guardian to give security for the performance of his trust; and that he may be cited to show cause why such a decree should not be made. Upon the presentation of such a petition, and proof of the facts therein alleged, to the satisfaction of the surrogate, he must issue a citation accordingly. Upon the return of the citation, a decree requiring the guardian to give security may be made, in the discretion of the surrogate, in a case where a person so named as executor, can entitle himself to letters testamentary only by giving a bond; but not otherwise.

§ 2854. What security to be given. The security to be given, as prescribed in the last two sections, must be a bond to the same effect, and in the same form, as the bond of a general guardian, appointed by the surrogate's court. Each provision of this chapter, applicable to the bond of such a guardian, and to the rights, duties, and liabilities of the parties thereto, or any of them, including the release of the sureties, and the giving of a new bond; applies to the bond so given, and the parties thereto.

§ 2855. Inventory and intermediate account may be required. Upon the petition of the ward, or of any relative or other person in his behalf, the surrogate's court having jurisdiction to require security, as prescribed in the last three sections, may at any time, in the discretion of the surrogate, make an order, requiring a guardian, appointed by will or by deed, to render and file an inventory and account, in the same form, and verified in the same manner as the inventory and account required to be filed annually by a guardian appointed by a surrogate's court, as prescribed in article second of this title. The order may also require such an inventory and account to be filed, in the month of January of each year thereafter. Sections 2842 to 2845 of this act, both inclusive, apply to such an inventory and account, and to the filing thereof, as if the guardian had been appointed by the surrogate's court.

§ 2856. When surrogate may compel judicial settlement of account. The surrogate's court, having jurisdiction to require security may compel a judicial settlement of the account of a guardian appointed by will or by deed, in any case where it may compel a judicial settlement of the account of a general guardian; and the proceedings to procure such a settlement are the same as if the guardian so appointed by will or deed had been a general guardian. A guardian appointed by will or by deed may present to the surrogate's court a written petitition, duly verified, praying for a judicial settlement of his account, and a discharge from his duties and liabil ilies, in any case where a petition for a judicial settlement of his account may be presented by any other person as prescribed in this article. The petition must pray that the person who might have so presented a petition may be cited to attend the settlement.. Upon the presentation of such petition the surrogate must issue a citation accordingly. Sections twenty-seven hundred and thirtythree to twenty-seven hundred and thirty-seven, both inclusive, and sections twenty-seven hundred and forty-one and twenty-seven hundred and forty-four of this act apply to a guardian accounting as prescribed in this article, and regulate the proceedings upon such an accounting. A guardian designated in this title is entitled to the same compensation as a general guardian. [AM'D CH. 197 OF 1891; in effect Sept. 1, 1891.]

$2857. Effect of decree. A decree made upon a judicial settlement of the account of a guardian appointed by will or by deed, as prescribed in this article, or the judgment rendered upon appeal from such decree, has the same force, as a judgment of the supreme court to the same effect.

§ 2858. Removal of guardian appointed by will or deed. Upon the petition of the ward, or of any relative or other person in his behalf, the surrogate's court, having jurisdiction to require security from a guardian appointed by will or by deed, may remove such a guardian, in any case where a testamentary trustee may be removed, as prescribed in title sixth of this chapter; and the proceedings upon such a petition are the same, as prescribed in that title for the removal of a testamentary t:ustee. Where a citation is issued, upon a petition for the removal of such a guardian, he may be suspended from the exercise of his powers and authority, as if he had been appointed by the surrogate's court.

$2859. Resignation of such a guardian. A guardian appointed by will or by deed, may be allowed to resign his trust, by the surrogate's court, having jurisdiction to require security from him. The proceedings for that purpose, and the effect of a decree made thereupon, are the same, as where a guardian appointed by the surrogate's court presents a petition, praying that his letters may be revoked, as prescribed in article first of this title.

§ 2860. Appointment of successor. Where a sole guardian, appointed by will or by deed, has been, by the decree of the surrogate's court, removed or allowed to resign, a successor may be appointed by the same court, with the effect prescribed in section 2605 of this act; unless such an appointment would contravene the express terms of the will or deed.

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65

CHAPTER XIX.

COURTS OF JUSTICES OF THE PEACE, AND PROCEEDINGS THEREIN.

TITLE I. JURISDICTION AND GENERAL POWERS.

TITLE II. COMMENCEMENT OF ACTION; APPEARANCE OF PARTIES; PRO

VISIONAL REMEDIES.

TITLE III.-PLEADINGS; INCLUDING COUNTER-CLAIMS, AND PROCEEDINGS

UPON ANSWER OF TITLE.

TITLE IV.-PROCEEDINGS BETWEEN THE JOINDER OF ISSUE AND THE

TITLE

TITLE

TRIAL.

V.-TRIAL AND ITS INCIDENTS.

VI.—JUDGMENT; AND DOCKETING THE SAME.

TITLE VII.-EXECUTIONS.

TITLE VIII.-APPEALS.

TITLE IX.-COSTS.

TITLE

X.-ACTION OR SPECIAL PROCEEDING, RELATING TO AN ANIMAL

STRAYING UPON THE HIGHWAY.

TITLE XI. PROVISIONS SPECIALLY RELATING TO COURTS OF JUSTICES OF THE PEACE IN THE CITY OF BROOKLYN.

TITLE XII.-MISCELLANEOUS PROVISIONS.

TITLE I.

Jurisdiction and general powers.

SECTION 2861. Justice's jurisdiction must be specially conferred by law.

2862. General civil jurisdiction.

2863. No jurisdiction in certain cases.

2864. Confession of judgment.

2865. Actions by and against officers, etc.; and by executors, etc.

2866. Tavern keepers disqualified.

2857. Members of Legislature not compelled to act.

2868. Justices to hold courts; general powers.

2869. In what town, etc., action must be brought.

2870. Criminal contempts.

2871. Id.; how punished.

2872. Offender to be heard.

2873. Record of conviction.

2874. Requisites of commitment.

2875. Fine to be paid to overseer or superintendent of the poor.

§ 2861. Justice; jurisdiction must be specially conferred by law. A justice of the peace has such jurisdiction in civil actions and special proceedings, as is specially conferred upon him by statute, and no other.

§ 2862. General civil jurisdiction. Except as otherwise prescribed in the next section, a justice of the peace has jurisdiction of the following civil

actions:

1. An action to recover damages upon or for breach of a contract, express or implied, other than a promise to marry, where the sum claimed does not exceed two hundred dollars.

2. An action to recover damages for a personal injury, or an injury to property, where the sum claimed does not exceed two hundred dollars.

3. An action for a fine or penalty, not exceeding two hundred dolars. 4. An action upon a bond conditioned for the payment of money, where the sum claimed to be due does not exceed two hundred dollars; the judgment to be rendered for the sum actually due. Where the sum secured by the bond is to be paid in installments, an action may be brought for each installment, as it becomes due.

5. An action upon a surety bond, taken, by any justice of the peace.

6. An action upon a judgment rendered in a court of a justice of the peace, or in a district court of the city of New York, or in a justices' court of a city, being a court not of record.

7. An action to recover one or more chattels, with or without damages for the taking, withholding, or detention thereof, where the value of the chattel, or of all the chattels, as stated in the affidavit made on the part of the plaintiff, does not exceed two hundred dollars.

§ 2863. No jurisdiction in certain cases. But a justice of the peace cannot take cognizance of a civil action, in either of the following cases: 1. Where the people of the State are a party, except for one or more fines or penalties not exceeding two hundred dollars.

2. Where the title to real property comes in question, as prescribed in title third of this chapter.

3. Where the action is to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution, or where it is brought under sections 1857, 1843, 1868, 1902 or 1969 of this act.

4. Where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars.

5. Where the action is brought against an executor or administrator as such, except where the amount of the claim is less than the sum of fifty dollars, and the claim has been duly presented to the executor or administrator and rejected by him. [AM'D BY CHAP. 527 or 1895. In effect Sept. 1, 1895.]

§ 2864. Confession of judgment. A justice of the peace has also jurisdiction to render judgment, upon the confession of a defendant, as prescribed in title xth of this chapter, where the sum confessed does not exceed five hundred dollars.

$2865. Actions by and against officers, etc.; and by ex cutors, etc. An action, cognizable by a justice of the peace, may be brought by or against a corporation; by or against a natural person in his own right; by or against a town or county officer in his official character; or by an executor, or administrator, trustee of an express trust or a receiver in supplementary proceedings. [AM'D CH. 399 OF 1882. See § 2.] Vover-68

§ 2866 Tavern keepers disqualified. A justice of the peace, who is an innholder or tavern keeper in fact, has no power or jurisdiction under any provision of this chapter; but if a judgment has been actually rendered by him, before he became so disqualified, he may give a transcript thereof, or issue execution thereupon, or satisfy the judgment upon payment thereof.

§ 2867. Members of Legislature not compelled to act. A justice of the peace, who is a member of the senate or assembly, is not obliged to take

cognizance of a civil action or special proceeding; but he may take cognizance thereof, in his discretion.

69 $2868. Justices to hold courts; general powers. A justice of the peace must hold, within his town or city, a court for the trial of any action or special proceeding, of which he has jurisdiction, brought before him. He must hear, try, and determine the same, according to law and equity; and for that purpose, where special provision is not otherwise made by law, the court is vested with all the necessary powers possessed by the supreme court.

Госте

§ 2869. In what town, etc., action must be brought. An action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except in one of the following cases:

1. Where the defendant has absconded from his residence, it may be brought before & justice of the town or city in which the defendant, or a portion of his property, is at the time of the commencement of the action.

2. Where the plaintiff is not a resident of the county, or if there are two or more plaintiffs, when all are non-residents thereof, it must be brought in the town where the defendant resides or in any adjoining town thereto. [AM'D BY CHAP. 153 OF 1895. In effect Sept. 1, 1895.]

3. Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city, in which he is at the time of the commencement of the action. 4. Where it is specially prescribed by law, that a particular action may be brought before a justice of the town, city, county, or district, where an offence was committed, or where property is found. A defendant designated in section 2879, section 2880, or section 2881 of this act, is deemed, for the purposes of this section, a resident of the town or city where the person, to whom a copy of the summons is delivered, resides.

5. In any town adjoining an incorporated city, no justice of such town shall have jurisdiction of any action brought by or against a resident of such adjoining city, unless at least one of the parties to the action is a resident of such town. [LAST SUBD. ADDED BY CH. 74 OF 1893.]

2870. Criminal contempts. A justice of the peace has power to punish, for a criminal contempt, a person guilty of either of the following acts:

1. Disorderly, contemptuous, or insolent behavior towards him, while engaged in the trial of an action, the rendering of a judgment, or any other judicial proceeding; where such behavior directly tends to interrupt the proceedings, or to impair the respect due to his authority.

2. Breach of the peace, noise, or other disturbance, directly tending to interrupt his official proceedings.

3. Resistance wilfully offered, in his presence, to the execution of his lawful mandate. He has not power to punish, for a criminal contempt, in any other case.

$2871. Id.; how punished. Punishment for a contempt, specified in the last section, may be by fine not exceeding twenty-five dollars, or by imprisonment in the county jail not exceeding five days, or both, in the discretion of the justice. Where a person is committed to prison for the non-payment of such a fine, he must be discharged at the expiration of ten days; but where he is also committed for a definite time, the ten days must be computed from the expiration of the definite time.

§ 2872. Offender to be heard. A person shall not be punished by a justice of the peace, for a contempt, until an opportunity has been given him to be heard in his defence. And, for that purpose, the justice must issue a warrant, directed, generally, to any constable of the county, requiring the constable to bring the offender before him.

§ 2873. Record of conviction. A justice, who convicts a person of a contempt, must, within ten days after the conviction, make up, subscribe,