Randall v. Osborne

162 A.D. 186, 147 N.Y.S. 691, 1914 N.Y. App. Div. LEXIS 9317

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1914
• Status: Published

Opinion

Smith, P. J.:

In Justice’s Court plaintiff filed a verified complaint which, if the matters therein alleged are true, entitled the plaintiff as matter of law to a judgment for thirty dollars. The defendant appeared and moved to dismiss the complaint on several grounds, which motion was denied. Thereafter the defendant refused to file a verified answer, the effect of which refusal was an admission of the matters alleged in the complaint and entitled the plaintiff to judgment under section 2988 of the Code of Civil Procedure. The justice, however, dismissed the complaint. Upon an appeal to the County Court the judgment of the justice was necessarily reversed, and as the plaintiff’s cause of action stood admitted before the justice the County Court directed the judgment which the justice should have directed. Under section 3063 of the Code of Civil Procedure the County Court is required to render judgment according to the justice of the case, and may affirm, modify or reverse the judgment in whole or in part. What the County Court in effect did was to modify the judgment from a judgment of dismissal to a judgment in favor of the plaintiff, to which judgment plaintiff was entitled as matter of law. This was clearly within the power of the County Court, and the judgment appealed from should, therefore, be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.