38 How. Pr. 107 | New York County Courts | 1869
It is conceded by the counsel that this motion is properly made at this time, and that this court has full authority and power, upon this motion, to determine the questions involved upon the merits. From the return o’f the justice, it appears that, on the trial in the court below, the case was closely contested, and by able counsel, the main question lititgated oefore the justice, was, as to whether the defendant did actually recieve the case of boots.
The defendant offered no evidence under the second and third defenses pleaded in his answer. This bears somewhat upon the question of good faith, though it is-not very material.
The defendant’s attorney, before the justice and in this court, swears, that, at the time of the joining of the issue, he told the plaintiff’s attorney, that the defendant would claim a new trial in the county court. It seems then quite clear, that the intention and the object of the defendant was, to draw his answer in such a manner as to have a new trial in the county court, in the event of his being unsuccessful in the court below. This he had a right to do, provided his defenses were not sham or false, and were pleaded in good faith ; and provided also that the defenses
This court can on this motion, only look to the return of the justice for the purpose of ascertaining what the issue was, that was joined in the court below.
The complaint is clearly one sounding in tort; hence no set-off could be pleaded or allowed, and no evidence could have been legally given under the second defense, if it had been offered in the court below, (if the same had been objected to.) It follows as a matter of course, that the second defense is sham because no such defense could be legally interposed.
In regard to the third defense, it clearly is both false and sham. The defendant was under no obligation to recieve the case of boots ; and, on the trial, he testified he did not recieve them; and if he recieved the'same under mistake, all he had to do was to notify the plaintiff to take the property away. He certainly could not be injured if the plaintiff was negligent and careless in effecting the delivery, because the property was not his, and the answer does not claim, in any manner, to set up a defense that the property had been injured at any time by the plaintiff. The defendant was liable only for the value of the property at and after the time it came into his possession. The defendant cannot say after recieying and converting the property of a stranger, he has been damaged by his own unauthorized acts.
The legislative power has several times amended the law relating to appeals from justice’s courts. It is now provided that a party can have a new trial in the county court, “ when the amount of the claim or claims for which judgment was demanded by either party in his pleadings in the court below shall exceed fifty dollars. This court is not compelled to try a case over because a defendant or a plaintiff, may, at the joining of the issue, see fit to put in a pleading which is entirely foreign to the case, and under
In the case of Fuller agt. Brierly, 36 How. 47, the pleadings were correct in substance. The answer of the de: fendant was in all respects regular, and such an answer as was proper in the case; but on the trial the defendant did not go into his defense, on account of a want of confidence in the impartiality of the justice. The defendant appealed, and a motion was made to strike out the fifth count of the defendant’s answer. Affidavits of its truth and falsity were submitted on each side, and the court properly held, that the fact that the defendant gave no evidence under it was insufficient to strike it out; and that the court would not determine the truth or falsity of the answer by affidavits.
If the second and third defenses in the answer in this case are allowed to stand the case must be retried, when it is apparent that no evidence could be given in support of either of the said defenses; and the effect would be simply to allow the defendant to litigate over the claim of the plaintiff for the sum of $33 damages.
The second and third defenses must be stricken out; but I think that the appeal cannot be dismissed on this motion. The case is regularity in this court, and I direct that an order be entered directing that it is not a case for a new trial, and that the appeal therein be heard by argument, upon the justice’s return, if the defendant desires to have the case reviewed.
The sum of $7 costs of this motion is allowed to the plaintiff.
