Brooks v. St. John

New York Supreme Court

Brooks v. St. John

32 N.Y. Sup. Ct. 540

DecidedNovember 15, 1881

StatusPublished

This text of 32 N.Y. Sup. Ct. 540 (Brooks v. St. John) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brooks v. St. John, 32 N.Y. Sup. Ct. 540 (N.Y. Super. Ct. 1881).

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Opinion

Learned, P. J.:

One Pope sued the plaintiff, Brooks, before the defendant, St. John, a justice of the peace, and recovered. She appealed; The return made by the justice, as the jury have found, was false, By reason of the falsity of the return the appeal was heard on the law and not on the facts. And the present plaintiff Brooks, who-had no question of law to present, but desired to have a new trial, had judgment against her of affirmance, with costs. She now sues-the justice for the damages occasioned by the false return. The judge charged that she was entitled to recover the costs paid in the-County Court, and the reasonable and proper expenses she was put to to obtain a new trial, of which she was deprived by the false return. The defendant appeals and insists*that this rule of damages-was too favorable to the plaintiff. He urges that she must show that she would have succeeded if she had had a new trial.

' The defendant relies on Millard v. Jenkins (9 Wend., 298.) As-that case is often cited on questions like the present, it is well to-remark that the court held that there was no false return. Therefore the question of what damages would have been recoverable, if there had been a false return, did not arise. A ground of complaint was said to remain for an alteration of the justice’s docket. As to-this the court say that no fraudulent intent was alleged. It is true that, after deciding that there was no false return, the court speak of the measure of damages. But that was not involved, if in fact no false return had been made.

In MacDonnell v. Buffum (31 How., 158) a justice of the peace ■was sued for having made a false return, in falsely returning that [542]*542•certain proof was not offered on the trial before him, or objected to or excluded. The judgment before the justice was affirmed by the General Term. In the action against the justice the rule of damages was the amount of the recovery which had been had against the plaintiff in the General Term and the amount for which he was liable to his attorney. That decision is in harmony with the charge in this case, as respects the expenses of the plaintiff.

So in Rector v. Clark (78 N. Y., 29), it is said that the plaintiffs “ sustained damages at least to the amount which he recovered, being for costs and expenses actually paid.” That is substantially the rule adopted here. Of course, if the plaintiff had had a new trial in the County Court she might have defeated the plaintiff in that action altogether, or she might have established her alleged counter-claim. On the other hand, she might have been unsuccessful there. The difficulty is that it is impossible for the jury, on this trial, to decide what would have been the result of a retrial of the former action in the County Court. That would have depended partly on the success of the parties in obtaining their witnesses and partly on the view the jury might have taken of the case. If, on the trial of the present action, the parties had attempted to retry the •case of Pope v. Brooks in order to ascertain the damages sustained by the false return, witnesses might be dead or absent who were living or at hand, at the time when the retrial would have been had. And this defendant also might claim that he could not successfully litigate a controversy which arose between Pope and Brooks, and to which he was not a party.

We are satisfied that the defendant has no reason to complain of the rule of damages. Whether larger damages might not have been recovered, we do not inquire. In MacDonnell v. Buffum it may be noticed that the false return affected a question of law. And the effect of the false return was to prevent a reversal, which would have otherwise been granted as a matter of law. On that ground the plaintiff recovered as damages the whole amount of the judgment rendered against him.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Osborn and Kumsey, JJ.

Judgment affirmed, with costs.

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Learned, P. J.:

One Pope sued the plaintiff, Brooks, before the defendant, St. John, a justice of the peace, and recovered. She appealed; The return made by the justice, as the jury have found, was false, By reason of the falsity of the return the appeal was heard on the law and not on the facts. And the present plaintiff Brooks, who-had no question of law to present, but desired to have a new trial, had judgment against her of affirmance, with costs. She now sues-the justice for the damages occasioned by the false return. The judge charged that she was entitled to recover the costs paid in the-County Court, and the reasonable and proper expenses she was put to to obtain a new trial, of which she was deprived by the false return. The defendant appeals and insists*that this rule of damages-was too favorable to the plaintiff. He urges that she must show that she would have succeeded if she had had a new trial.

' The defendant relies on Millard v. Jenkins (9 Wend., 298.) As-that case is often cited on questions like the present, it is well to-remark that the court held that there was no false return. Therefore the question of what damages would have been recoverable, if there had been a false return, did not arise. A ground of complaint was said to remain for an alteration of the justice’s docket. As to-this the court say that no fraudulent intent was alleged. It is true that, after deciding that there was no false return, the court speak of the measure of damages. But that was not involved, if in fact no false return had been made.

In MacDonnell v. Buffum (31 How., 158) a justice of the peace ■was sued for having made a false return, in falsely returning that [542]*542•certain proof was not offered on the trial before him, or objected to or excluded. The judgment before the justice was affirmed by the General Term. In the action against the justice the rule of damages was the amount of the recovery which had been had against the plaintiff in the General Term and the amount for which he was liable to his attorney. That decision is in harmony with the charge in this case, as respects the expenses of the plaintiff.

So in Rector v. Clark (78 N. Y., 29), it is said that the plaintiffs “ sustained damages at least to the amount which he recovered, being for costs and expenses actually paid.” That is substantially the rule adopted here. Of course, if the plaintiff had had a new trial in the County Court she might have defeated the plaintiff in that action altogether, or she might have established her alleged counter-claim. On the other hand, she might have been unsuccessful there. The difficulty is that it is impossible for the jury, on this trial, to decide what would have been the result of a retrial of the former action in the County Court. That would have depended partly on the success of the parties in obtaining their witnesses and partly on the view the jury might have taken of the case. If, on the trial of the present action, the parties had attempted to retry the •case of Pope v. Brooks in order to ascertain the damages sustained by the false return, witnesses might be dead or absent who were living or at hand, at the time when the retrial would have been had. And this defendant also might claim that he could not successfully litigate a controversy which arose between Pope and Brooks, and to which he was not a party.

We are satisfied that the defendant has no reason to complain of the rule of damages. Whether larger damages might not have been recovered, we do not inquire. In MacDonnell v. Buffum it may be noticed that the false return affected a question of law. And the effect of the false return was to prevent a reversal, which would have otherwise been granted as a matter of law. On that ground the plaintiff recovered as damages the whole amount of the judgment rendered against him.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Osborn and Kumsey, JJ.

Judgment affirmed, with costs.

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