56, upon the discontinuance of an action in a justice's court, involving the title to lands, is "an action originally commenced in a court of a justice of the peace." $56. Undertaking therein. At the time of answering, the defendant shall deliver to the justice a written undertaking, executed by at least one sufficient surety, and approved by the justice, to the effect that if the plaintiff shall, within twenty days thereafter, deposit with the justice a summons and complaint in an action in the supreme court for the same cause, the defendant will, within twenty days after such deposit, give an admission in writing of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking shall further provide that he will at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable, not exceeding one hundred dollars. 1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1851 and 1858, which last amendment reads as above. 2. Q. How did this section read in 1848 and 1851 ? A. As follows: § 49. [1848. Same as § 56 in 1849.] At the time of answering, the defendant shall deliver to the justice a written undertaking, executed by at least one sufficient surety, and approved by the justice, to the effect that if the plaintiff shall, within thirty days thereafter, deposit with the justice a summons and complaint in an action in the supreme court for the same cause, the defendant will, within ten days after such deposit, give an admission in writing of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking shall further provide that he will at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable, not exceeding one hundred dollars. $56. [1851.] At the time of answering, the defendant shall deliver to the justice a written undertaking, executed by at least one sufficient surety, and approved by the justice, to the effect that if the plaintiff shall, within thirty days thereafter, deposit with the justice a summons and complaint in an action in the county court, for the same cause, the defendant will, within ten days after such deposit, give an admission in writing of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking shall further provide that he will at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable, not exceeding one hundred dollars. Questions. 3. Q. When must it be shown on appeal that the justice was ousted of jurisdiction by Javing an undertaking ? 4. Q. When may an action be brought on an undertaking? 5. Q. When does the plaintiff waive a literal compliance by the defendant of the terms of an undertaking filed with the justice? 3. Q. When must it be shown on appeal that the justice was ousted of jurisdiction by giving an undertaking? A. In Lalliette agt. Van Keuren, 7 Hoc., 409, Court of Appeals, January, 1853, RUGGLES, Ch. J., said: "The affidavit on which the motion to dismiss the appeal is founded is fatally defective in not showing that the justice of the peace was ousted of his jurisdiction by the giving of the undertaking required by the Code (§ 56). This suit cannot be regarded as a continuation of that before the justice, unless the party was prevented from going on before the justice by the filing of the undertaking then, as well as the plea of title." 4. Q. When may an action be brought on an undertaking? A. In Davis agt. Jones, 4 How., 340, Special Term, December, 1849, HARRIS, J.. held, where a defendant omitted, within the prescribed time, to admit service of a summons and complaint, deposited by the plaintiff with a justice of the peace, in pursuance of section 56 of the Code, and upon the plaintiff bringing an action upon the undertaking of the defendant deposited with the justice, the defendant moved for leave to admit service of the summons and complaint, and to stay plaintiff's proceedings on the undertaking, that this court had no power to grant such relief. There was no action pending until the service of the summons (§ 139); consequently the court had no jurisdiction. 5. Q. When does the plaintiff waive a literal compliance by the defendant of the terms of an undertaking filed with the justice? A. In Wiggins agt. Talmadge, 7 How., 405, Court of Appeals, January, 1853, JOHNSON, J., said that the admission of service of complaint and summons required to be given by defendant was not given. The defendant executed the proper undertaking under section 56 of the Code of 1849, but has not literally complied with its terms. The object of the undertaking, when it provides for this admission, seems only to be to insure the defendant's appearance in the supreme court, without putting the plaintiff to the trouble of serving him with the summons and complaint, or of making proof by affidavit of such service. We think that this obligation was substantially performed by the defandant's putting in an answer, the plaintiff having accepted the answer without the written admission, and so having waived his right to require a literal compliance with the terms of the undertaking. This waiver does not at all affect the identity of the suits.. See note to section 60. What is the result of the decisions under this section? 1. (3 Q.) On appeal to the court of appeals, in order to ground a motion to dismiss the appeal because the suit in the supreme court is a continuation of one commenced before a justice of the peace, the affidavit must show the fact in terms that the justice was ousted of jurisdiction by the giving of the undertaking required by section 56 of the Code. 2. (4 Q.) Where the defendant omits, within the prescribed time, to admit service of a summons and complaint deposited with the justice, and an action is commenced upon his undertaking, the court has no power to stay plaintiff's proceedings and to allow defendant to admit service of the summons and complaint. No action is pending until the service of the summons. 3. (5 Q.) Where a defendant fails to comply literally with the terms of an undertaking filed with the justice, by omitting to give the written admission of service of the summons and complaint, and the plaintiff accepts his answer in the supreme court without such admission, it is a substantial performance, and the waiver does not affect the identity of the suits before the justice and in the supreme court. $57. Suits before justices to be discontinued. Costs. Upon the delivery of the undertaking to the justice, the action before him shall be discontinued, and each party shall pay his own costs. The costs so paid by either party shall be allowed to him, if he recover costs in the action to be brought for the same cause in the supreme court. If no such action be brought within thirty days after the delivery of the undertaking, the defendant's costs before the justice may be recovered of the plaintiff. 1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1851 and 1858, which last amendment reads as above. 2. Q. How did this section read in 1848 and 1851 ? 4. As follows: § 50. [1848. Same as § 57 in 1849.] Upon the delivery of the undertaking to the justice, the action before him shall be discontinued, and each party shall pay his own costs. The costs so paid by either party shall be allowed to him, if he recover costs in the action to be brought for the same cause in the supreme court. If no such action be brought within thirty days after the delivery of the undertaking, the defendant's costs before the justice may be recovered of the plaintiff. $57. [1851.] Upon the delivery of the undertaking to the justice, the action before him shall be discontinued, and each party shall pay his own costs. The costs so paid by either party shall be allowed to him, if he recover costs in the action to be brought for the same cause in the county courts. If no such action be brought within thirty days after the delivery of the undertaking, the defendant's costs before the justice may be recovered of the plaintiff. Costs on appeal, see section 368, post. $58. Proceedings if undertaking not given. [Same as § 51 in 1848.] If the undertaking be not delivered to the justice, he shall have jurisdiction of the cause, and shall proceed therein; and the defendant shall be precluded, in his defense, from drawing the title in question. 1. Question. Has the justice jurisdiction of the cause when the defendant fails to raise the question of title in the proper form? Answer. In Freedonia and Sinclearville Plank Road Co. agt. Wait, 27 Barb., 217, General Term, May, 1858, MARVIN, J., said: "If the defendant intended to raise the question of title, he should have set forth in his answer the matter showing that title would come in question, and should have given the undertaking. Not having done so, the justice had jurisdiction of the cause, and the defendant was precluded, in his defense, from drawing the title in question. If the defendant had answered that the locus in quo was a public highway, this would have made a question of title." (6 Hill, 342; 15 Wend., 338; 19 Id., 373.) In Main agt. Cooper, 26 Barb., 470, General Term, December, 1857, HARRIS, J., said: "The other case is where the defendant proposes to set up title in his defense. For this case, provision is made in the 55th and 56th sections of the Code. The 58th section declares that, unless the defendant proceed in the manner prescribed in the preceding sections, the justice shall have jurisdiction of the cause, and the defendant shall be precluded, in his defense, from drawing the title in question. It is to be observed that the defendant is only thus precluded from drawing title in question "in his defense.". If it becomes necessary for the plaintiff to establish his title, in order to recover, the objection may be taken by the defendant, and it is the duty of the justice, in whatever stage of the trial this shall appear, to dismiss the action. What is the result of the decisions under this section? 1. The defendant should set forth in his answer the matter raising the question of title. If he does not do so, the justice has jurisdiction, and the defendant will thereafter be precluded from drawing title in question. 2. The defendant is precluded from drawing title in question "in his defense," unless he proceeds in the manner prescribed in sections 55 and 56. If it becomes necessary for the plaintiff to establish his title, in order to recover, the objection may be taken by the defendant. § 59. The same. If, however, it appear on the trial, from the plaintiff's own showing, that the title to real property is in question, and such title shall be disputed by the defendant, the justice shall dismiss the action and render judgment against the plaintiff for the costs. 1. Question. Has this section been amended since its passage in 1848 ? Answer. It has, in 1849, which amendment reads as above. 2. Q. How did this section read in 1848? A. As follows: § 52. [1848.] If, however, it appear on the trial, from the plaintiff's own showing, that the title to real property is in question, and such title shall be disputed by the defendant, the justice shall dismiss the action, and the plaintiff shall pay the cost. 3. Q. When is the defendant entitled to a dismissal of the cause before the justice by reason of title to land coming in question? A. In Koon agt. Mazuzan, 6 Hill, 44, General Term, October, 1843, COWEN, J., it was decided, that though it appears on a trial in a justice's court from the plaintiff's own showing, that the title to lands is in question, and the justice improperly refuses to dismiss the cause, his judgment will not be void for want of jurisdiction but only voidable for error. (This is decided differently in Gage agt. Hill, 43 Barb., 44, post, where it is held, that in such case the justice acts without authority, and his judgment is void for want of jurisdiction.-ED.) The justice may properly proceed and render judgment, notwithstanding evidence of title to lands be given by the plaintiff, if the defendant do not expressly dispute such title, nor move to have the cause dismissed. In Adams agt. Beach, 6 Hill, 271, General Term, January, 1844, NELSON, Ch. J., it was decided, that though the plaintiff in a justice's court give evidence of title to lands, the justice is not bound to dismiss the cause unless such title be disputed by the defend ant. In Nixon agt. Jenkins, 1 Hilt., 318, General Term, May, 1857, BRADY, J., it was decided, that the title of the defendants to the lot in question not having been disputed upon the trial, the title to lands did not come in question, so as to deprive a district court of jurisdiction of the cause. In Brown agt. Scofield, 8 Barb., 239, General Term, March, 1850, JOHNSON, J., it was decided, that in an action on the case, in a justice's court, for obstructing a river, where the plaintiff claims that such river was a public highway at common law, and has been declared such by statute, without making any other proof of his right; and no fact is shown by the defendant to controvert the right thus declared by law, but he pleads the general issue, and introduces in evidence a grant from the legislature, authorizing him to erect and maintain a dam across the river, of such construction as not to interfere with the public right of passage, the title to land does not come in question, so as to oust the justice of his jurisdiction. The questions in issue in such a case, viz.: whether the defendant has obstructed the navigation of the river, and if so, whether the plaintiff has suffered injury thereby, are such as a justice may lawfully try. To entitle a defendant to a dismissal of a cause pending before a justice, on the ground that the title to land comes in question, he must call the justice's attention specifically to the objection, by at least disputing the title of the plaintiff. In Main agt. Cooper, 26 Barb., 470, General Term, December, 1857, HARRIS, J., "S. C" 25 N. Y.R., 181, September, 1862, SMITH, J., it was decided, that where an action is brought before a justice of the peace, by the assignee of the lessor in a lease in fee, against the assignee of the lessee, to recover rent, and the defendant, in his answer, denies all the allegations in the complaint, the title to land necessarily comes in question, and the justice has no jurisdiction to render a judgment. Where it become necessary for the |