66 How. Pr. 396 | N.Y. Sup. Ct. | 1883
Lead Opinion
— Appeal from an order of the county court of Columbia county, denying a motion for an order transferring the case to the law calendar of that court and that it be heard on the justice’s return without a new trial therein. The action was commenced in justice’s court where judgment was rendered in favor of the plaintiffs for thirty-five dollars, with nine dollars and twelve cents costs, in all forty-four dollars and twelve cents. The action was in trespass (or trover) for taking and converting a cow, and damages were claimed in the sum of fifty dollars. The defendant answered by general denial; also set up property in himself, demanded judgment for the dismissal of the complaint and for seventy-
It is urged that the order made in this case is not applicable, inasmuch as the motion was out of place and unnecessary. That the ruling sought for was properly attainable when the case should be regularly reached on the calendar, under a notice of argument. The precedent is against this position (See Houghton agt. Kenyon, and Johnson agt. Dow, above cited). It would seem also to be proper and right with a view to the saving of expense in preparing for trial, if no trial could be had, that the question should be settled in advance. The course of practice adopted in the cases last cited we think commendable. As regards the costs of the motion, probably none would be allowed by the county court in case it was not opposed. If opposed, the prevailing party should in general have costs.
Order appealed from reversed, with ten dollars costs and expenses for printing, and motion granted, with ten dollars costs of motion.
Dissenting Opinion
I think the appeal ’should be dismissed. Plaintiff moved, first, to deny a new trial; second, to transfer the cause to a law calendar; third, that the appeal be argued on the return. The county court denied motion. As to the second, we have nothing to do with the calendar. As to the first, the court only refused to deny a new trial. As to the third, the court refused the motion that the appeal be argued on the return. All of this is merely preliminary. The question presented will properly come up when the defendant attempts to try the case with new evidence. The county court was not obliged to decide the matter beforehand, and properly refused to decide. Plaintiffs
Concurrence Opinion
I concur in brother Bocees’ opinion. It was proper to determine in advance whether the appeal was to be tried on a question of fact or one of law. The county court liad jurisdiction to determine that question, and it could do it as well on special motion as at opening of trial. The practice of plaintiffs was the best.