3005. An objection to the competency of a witness must be tried and determined by the justice. Where the ground of the objection depends upon a matter of fact, evidence may be given thereupon, as upon any other que tion of fact; except that, if the witness is examined thereupon by the party objecting, no other testimony shali be received from either party as to his competency. § 3006. After hearing the allegations and proofs, the jury must be kept together in a private and convenient place, under the charge of a constable, until they all agree upon their verdict; and, for that purpose, the justice shall administer to the constable the following oath: "You swear in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as jurors upon this trial together, in a private and convenient place, without any meat or drink, except such as shall be ordered by me; that you will not suffer any communication to le made to them, orally or otherwise; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed upon their verdict, until they are discharged; and that you will not before they render their verdict, communicate to any person the state of their deliberations, or the verdict they have agreed upon". 3007. When the jurors have agreed upon their verdict, they must publicly deliver it to the justice, who must enter it in his docket-book. It is not necessary to call the plaintiff before receiving the verdict; and the plaintiff cannot submit to a nonsuit or withdraw the action, after the cause has been committed to the jury. § 3008. Where the justice is satisfied that the jurors cannot agree upon a verdict, after having been out a reasonable time, he may discharge them, and issue a new venire, returnable within forty-eight hours; unless the parties consent, and their consent is entered in the justice's docketbook, that the justice may render judgment upon the evidence already before him; which he may do, in that case. § 3009. A person duly notified to attend as a juror, who fails to attend, or, attending, refuses to serve, without a reasonable excuse, proved by his oath, or the oath of another person, is liable to the same fine, to be imposed and collected, with costs, in like manner, and applied to the same use, as is prescribed in article second of title fourth of this chapter, with respect to a person subpoenaed as a witness, and not attending, or attending and refusing to testify. TITLE VI. Judgment; and docketing the same. 8010. Judgment by confession. 3011. Id.: mode of confessing judgment. 3012. Id.; when void. $3013. Judgment of nonsuit. 3014. Judgment upon verdict. etc. SS 3010-3015 JUDGMENT 387 3020. Judgment against joint 302. Docketing the same; ac- 3022. Docketing judgment in 3023. Justice may give trans- 3010. A justice of the peace may enter a judgment 24 N. Y. upon the confession of the defendant, in any case, where the amount confessed does not exceed the sum of five hundred dollars, with such a stay of execution, if any, as is agreed upon by the parties to the judgment. State Rep 552 § 3011. A judgment upon confession shall not be ren- 30 App. Div. dered, unless the following requisites are complied with: 1. The defendant must personally appear before the justice. 2. The confession must be in writing, signed by the defendant, and filed with the justice. 3. If the judgment is confessed for a sum exceeding fifty dollars, the confession must be accompanied with the affidavit of the defendant and of the plaintiff, stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein, over and above all just demands which the defendant has against the plaintiff; and that the confession is not made or taken with intent to defraud any creditor. § 3012. A judgment confessed, otherwise than as prescribed in the last section, is void, as against every person, except a purchaser in good faith of property, real or personal, thereunder, and the defendant making the confession. 173. sol. Act. $3013. Judgment of nonsuit, with costs, must be ren- $1882, Condered against a plaintiff prosecuting an action before a justice of the peace, in either of the following cases: 19 N. Y. State Rep. 295; 9 App, Div. 175. 1. If he discontinues or withdraws the action. 2. If he fails to appear within one hour after the summons is returnable, or within one hour after the time to which the trial has been adjourned. 3. If he is nonsuited upon the trial. 3014. Where a verdict, or the decision of the justice upon a trial without a jury, is rendered in favor of either party, the justice must render judgment against the adverse party in conformity thereto, with costs, except as is otherwise specially prescribed by law. 32 Hun, 363. 46 Id. 492. 19 N. Y. State Rep. 295. § 3015. Where the plaintiff is nonsuited, or discontinues or withdraws the action; or where judgment is confessed, or a verdict is rendered; or where, at the close of the trial, the defendant is in custody; the justice must forthwith render judgment, and enter it in his docket-book. 14 Misc. 125. In every other case, he must render judgment and enter it 2 App. Div. in his docket-book, within four days after the cause has been 1. finally submitted to him. 32 Hun, 363. § 3016. Where a verdict, or the decision of the justice 16 Misc. 615. upon a trial without a jury, is rendered in favor of either party for a sum of money, the prevailing party may remit any portion thereof, and take judgment for the residue. § 1392, Consol. Act. 4 Civ. Pro. 220. 91. 83017. [Am'd 1894.] A justice of the peace who renders a judgment, except in an action to recover a chattel, must, upon the application of the party in whose favor the 23 App Div judgment was rendered, and the payment of the fee therefor, deliver to him a transcript of the judgment. The county clerk of the county in which the judgment was rendered must, upon the presentation of the transcript and payment of the fee therefor, if within six years after the rendering there. of, indorse thereupon the date of its receipt, file it in his office and docket the judgment as of the time of the receipt of the transcript in the book kept by him for that purpose, as prescribed in article third, title first of chapter eleven of this act. Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly; except that an execution can be issued thereupon only by the county clerk, as prescribed in section thirty hundred and forty-three of this act, and that the judg ment is not a hien upon, and can not be enforced against, real property, unless it is for twenty-five dollars or more, exclusive of costs. 1894, Con. sol. Act. § 1394, Consol. Act. § 3018. If the action, in which the judgment is rendered, is one of the actions specified in subdivision first or second, of section two thousand eight hundred and ninetyfive of this act, or if an order of arrest was granted, and was executed, in a case specified in subdivision third of that section, and, in either case, if the defendant is a male person, the justice must insert, in each transcript given by him, as prescribed in the last section, the words, “defendant liable to execution against his person"; and a like note must also be made in the docket of the judgment, made by the county clerk. § 3019. A justice of the peace, who renders judgment for a chattel, which has been delivered to the unsuccessful party, or for the value thereof, in case a return thereof cannot be had, must, where the value exceeds twenty-five dollars, upon the application of the party in whose favor the judgment was rendered, and payment of the fee therefor, deliver to him a transcript of the judgment, stating the particulars thereof. The county clerk of the county, in which the judgment was rendered, must, upon the presentation of the transcript, and payment of the fees therefor, indorse thereupon the date of its receipt, file it in his office. and docket the judgment, as of the time of the receipt of the transcript, in the book kept by him for that purpose, as prescribed in article third of title first of chapter eleventh of this act, and must also enter in the docket the particulars of the judgment, as stated in the transcript of the jus tice. Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly; except that an execution can be issued thereupon only by the county clerk, as prescribed in section three thousand and forty-three of this act. Consol. Act § 3020. Where an action is brought against two or $$ 1383,1395 more persons, jointly indebted upon contract, and the summons is served upon one or more, but not upon all of them, if the plaintiff recovers judgment, it must be entered against all, in the mode prescribed in section one thousand nine nundred and thirty-two of this act. Sections one thousand nine hundred and thirty-three, one thousand nine hundred and thirty-four, and one thousand nine hundred and thirty five of this act apply to such a judgment, and to each execution issued thereupon; except that, where the justice or the county clerk issues the execution, he must make the indorsement prescribed in section one thousand nine hundred and thirty-four of this act. § 3021. The justice who gives a transcript of a judg- § 1396, Con ment, taken as prescribed in the last section, must distinctly sol. Act. designate, in the transcript, each defendant who was not summoned. Thereupon the clerk, who dockets the judg ment, must make in the docket, under or opposite the name of each defendant not summoned, an entry, as prescribed in section one thousand nine hundred and thirty-six of this act; and the provisions of that section apply to the judgment so docketed. An action, upon a judgment so docketed, can be maintained in a justice's court against the defendants summoned, only in a like case, and with like effect, as if they were the only defendants in the original action. An action may be maintained against the defendants not summoned, as prescribed in section one thousand nine hundred and thirty-seven of this act, in any court having jurisdiction thereof; and the plaintiff is entitled to costs, upon recovering final judgment therein, where the sum remaining unpaid is twenty-five dollars or more. sol. Act. § 3022. The clerk, with whom a transcript given by a § 1397, Con justice is filed, as prescribed in either of the foregoing sections of this title, must furnish to any person applying therefor, and paying the fees allowed by law, one or more transcripts of the docket of the judgment, attested by his signature. A county clerk, to whom such a transcript is presented, must, upon payment of the fees therefor, immediately file it, and docket the judgment in the appropriate docket-book kept in his office, in like manner as the judg ment was docketed by the first county clerk. The judg ment, when docketed as prescribed in this section, has the like effect, with respect to the enforcement thereof, or any proceedings thereunder, or by virtue thereof, in the county where it was so docketed, as if it was rendered by a justice of the peace of that county, and docketed upon filing his transcript;' except that where an application for leave to issue an execution is necessary, it must be made to the §§ 1399,1403, county court of the county where the judgment was rendered. § 3023. A justice of the peace, whose term of office has expired, may make a transcript of a judgment rendered by him, as prescribed in either of the foregoing sections of this title. § 3024. At any time within five years after entry of a Consol. Act. judgment, the justice of the peace, who rendered it, being in office, may issue an execution thereupon, unless it has been docketed in the county clerk's office. 5 Misc. 533. § 3025. An execution, issued by a justice, must be 84 Hun, 166. directed generally to any constable of the same county. It must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the name of the justice by whom, the judgment was rendered; and it must be made returnable to the justice, within sixty days after its date. 148 N.Y. 592. 3026. An execution, issued upon a judgment for a sum of money, must specify, in the body thereof, the sum recovered, and the sum actually due upon the judgment at the date of the execution; and, except in a case where special provision is otherwise made by law, it must, substantially, require the constable to satisfy the judgment, together with his fees, out of the personal property of thẻ judgment debtor within the county, not exempt from levy and sale by virtue of an execution; and to bring the money before the justice, by the return day of the execution, to be rendered, by the justice, to the party who recovered the judgment. If the judgment was recovered against a male Derson, in either of the actions specified in subdivision first |