Dennison v. Collins, 1 Cow. 111

Dennison v. Collins

1 Cow. 111

| N.Y. Sup. Ct. | 1823

Curia.

It is contended, that the plaintiff, by laying his damages, in his declaration, at more than $25, ousted the Justice of his jurisdiction, the suit being under the 25 dollar act. It is possible that, before the extension of a Justice’s jurisdiction to 50 dollars,(a) this objection might have been fatal. The case of Bowditch v. Salisbury,(b) appears to countenance that opinion. But now it is an objection in form merely. The Justice had jurisdiction beyond the amount claimed in the declaration. The objection, therefore, of a want of jurisdiction, is not well founded. But it is objected, that there is a variance between the process and declaration, the A 7 one being for $25, and the other for $27,10. In Bowen v. Ferne, (c) it was held, that a variance between the summons *112and declaration, as to the form of action, (the one being in (respagSj an£} pne other trespass on the case) was mere matter of form. The variance; in this case, is much less material, and is not, therefore, a sufficient ground for reversing the judgment. Nor is there any validity in the other objection. The jurors did not take liquor while they were sitting as a jury. It was during the two hours suspension of proceedings, which distinguishes this case from that of Kellogg v. Wilder.(d) It does not appear that they drank to excess, or that the liquor was furnished by one party more than the other. The judgment must, therefore, be affirmed, as to the damages. But the Justice having included, in the" judgment, the costs of an adjournment procured by the defendant, it must be reversed as to the costs.

Judgment accordingly.

Sees. 41, ch. 94.

9 John. Rep. 366.

16 John, Rep. 161.

455^”*