§ 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 ities, 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~ the account of a guardian appointed by will or by deed, as prescribed i 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. 588 CHAPTER XIX. COURTS OF JUSTICES OF THE PEACE, AND PROCEEDINGS THEREIN. TITLE I.-JURISDICTION AND GENERAL POWERS. II.-COMMENCEMENT OF ACTION; APPEARANCE OF PARTIES; PRO VISIONAL REMEDIES. PLEADINGS; INCLUDING COUNTER-CLAIMS, AND PROCEEDINGS UPON ANSWER OF TITLE. TITLE IV. PROCEEDINGS TRIAL. TITLE TITLE BETWEEN THE JOINDER OF ISSUE AND THB 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. 2867. 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 dollars. 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 judg ment 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. 8. An action to recover damages for an escape from the jail liberties, as provided by chapter 2, title 2, articles 4 and 5 of this act, where the sum claimed does not exceed fifty dollars. [ADDED BY CH. 303 OF 1896. In effect Sept. 1, 1896.] § 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 1837, 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 OF 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.] $2866 Tavern keepers disqualified. A justice of the peace, who is an innholder or tavern keeper in fact, has no power or jurisdiction under any provision of this chapter; but if a judgment has been actually rendered by him, before he became so disqualified, he may give a transcript thereof, or issue execution thereupon, or satisfy the judgment upon payment thereof. § 2867. Members of Legislature not compelled to act. A justice of the pace, who is a member of the senate or assembly, is not obliged to take Ch. 19, Tit. 1. JURISDICTION. S$ 2868-2873. cognizance of a civil action or special proceeding; but he may take cognizance thereof, in his discretion." A justice of the peace. § 2868. Justices to hold court; general powers. 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; but such a court shall not be held in a room in any part of which trafficking in liquors is authorized or in any adjoining room. 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. [AM'D BY CH. 105 OF 1899. In effect Sept. 1, 1899.] § 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 a 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 incorporared city, no justice of such town shall have jurisdiction of any action brought against a resident of such adjoining city unless the plaintiff in the action is a resident of such town. [AM'D BY CH. 112 of 1898. In effect Sept. 1, 1898.] 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 591 S$ 2874-2877. JUSTICES COURTS. Tit. 2, Ch. 19. and file in the county clerk's office, a record thereof, stating therein the particular circumstances of the offence, and the punishment awarded by him upon the conviction. § 2874. Requisites of commitment. A warrant of commitment for a contempt must set forth the particular circumstances of the offence; otherwise it is void. § 2875. Fine to be paid to overseer or superintendent of the poor. An officer, who collects or receives a fine, imposed by a justice of the peace for a contempt, must, within ten days thereafter, pay the money, for the benefit of the poor, to the overseer or superintendent of the poor of the town, city, or district, wherein the fine was imposed; or, where there is no such officer, to the officer or officers performing corresponding functions under another name; unless the board of supervisors has directed the payment of fines and penalties to the supervisor of the town, in a case where it is authorized by law so to do TITLE II. Commencement of action; appearance of parties; provisional remedies. ARTICLE 1. Commencement of action. 2. Appearance of parties. 3. Order of arrest. 4. Attachment of property. ARTICLE FIRST. COMMENCEMENT OF ACTION. SECTION 2876. Action; how commenced. 2877. Contents of summons. 2878. Service of summons. 2879. Id.; upon a corporation. 2880. Id.; special provision relating to railroad corporations. 2881. Id.; relating to express companies. 2882. Last two sections qualified. 2883. Second and third summons; effect thereof. 2884. Where name of defendant is unknown. § 2876. Action; how commenced. An action is commenced before a justice of the peace, either by the voluntary appearance and joinder of issue by the parties, or by the service of a summons. § 2877. Contents of summons. The summons must be directed, generally, to any constable of the county where the justice resides; and it must command him to summon the defendant to appear before the justice, at a place specified therein, to answer the complaint of the plaintiff in a civil action. Where the summons is accompanied with an order to arrest the defendant, it must be made returnable immediately upon the arrest of the defendant, within twelve days after the day when it was issued; in every other case, it must be returnable at a time therein specified, not less than six nor more than twelve days after the day when it was issued. |