Savage v. Cock

17 Abb. Pr. 403

• Court: New York Supreme Court
• Decided: March 15, 1864
• Status: Published

Opinion

Scrugham, J.

This action originated in the justice’s court, where the plaintiffs complained that the defendant was indebted to them in the sum of two hundred and sixteen dollars for manure sold to him by their assignors. The answer was a general denial, and judgment was rendered for the plaintiffs for $127.70, damages and costs. An appeal was taken to the County Court, and, on the trial there, the defendant was allowed to amend his answer so as to set up payment. This, we think, was error. The case'was in the County Court on appeal, and the new trial, which the statute requires, is of the issues of fact joined in the justice’s court. (Code, § 366, subd. 3.)

If this issue of payment had been presented in the justice’s court, it is probable that the result there would have been the same as that afterwards reached in the County Court, and the plaintiffs would not have been subjected to the costs of an appeal.

Defendants should not be allowed to conceal their real defences and allow judgments to be taken against them in a justice’s court, and, on appeal, present their true defences, and cast the costs upon the plaintiffs.

The judgment of the County Court should be reversed, and a new trial in that court should be ordered. Costs to abide the event.

Brown, P. J., and Lott, J., concurred.