Jaycox v. Pinney, 62 Barb. 344

Jaycox v. Pinney

62 Barb. 344 | N.Y. Sup. Ct. | 1872

By the Court,

Talcott, J.

This was an action to recover the value of the plaintiff’s cow, killed by the negligence of the defendant. The action was originally brought before a justice of the peace. The cause was tried before the justice, without a jury, and the plaintiff recovered a judgment of $35, damages and costs.

The judgment rendered by the justice was reversed by the county court of Jefferson county, upon the sole ground that, on the trial, the justice allowed a certain amendment to the complaint; and his power to allow the amendment is the only question argued on this appeal.

In his original complaint, the plaintiff had alleged that by the killing of the cow he had sustained damages to the sum of $60, for which sum, with the costs of the action, he demanded judgment. After a motion for a nonsuit, by the defendant, the plaintiff moved to amend his com*349plaint, and the defendant objected; but the justice granted the motion, and the plaintiff put in his amended complaint, in writing.

The amended complaint omitted certain allegations contained in the original complaint, but did not materially change the cause of action therein stated. It alleged the damages to be only $40, and demanded judgment for that sum, only, with the costs of the action.

As the complaint originally stood, the judgment demanded being more than $50, the defendant, on appeal to the county court, would have been entitled to a néw trial. If the amendment was justifiable the cause is not to be re-tried in the county court; but in order to reverse the judgment it is necessary to show error in the proceedings before the justice.

On the trial, the value of the cow was in dispute, and before the amendment the plaintiff, in his own testimony, had fixed the value of the cow at only $40. That the power to amend embraced the power to render the amount of damages claimed in the complaint in a justice’s court, was decided in Woolley v. Wilbur, (4 Denio, 570.) Even though before the amendment the claim of damages was such that the justice had no jurisdiction.

In this case it is claimed that the sole object of the amendment was to deprive the defendant of the right to a new trial in the county court; and such may have been the fact. The power to amend the pleadings in justices’ courts is conferred by subdivision 11 of section 64 of the Code.

By that provision amendments are allowed before or during the trial, or on appeal, “ when by such amendment substantial justice will be promoted.”

It is claimed that allowing an amendment whereby the unsuccessful party will be deprived of a new trial in the county court, is not promoting substantial justice, but the contrary. This argument, we think, is fallacious. *350Substantial justice, certainly, cannot be greatly outraged by conforming the pleadings to the proof. The claim of much greater damages than the plaintiff himself claimed to have sustained, when it was productive of the consequence that the defendant might not be compelled to disclose his defense, but might lie by and throw the entire costs of the litigation, amounting, probably, to more than the damages.in controversy, upon the plaintiff, by reducing his judgment $10, was, most likely, from the ignorance of the plaintiff or the person who acted as his attorney in the justice’s court. Although the statute providing for a new trial in the county court makes the new trial depend upon the amount claimed in the complaint, yet its general purpose was to prevent the expense of a new trial in the appellate court in cases involving amounts less than $50.

In this ease the parties were before the court, and, presumptively, prepared to litigate the question on the merits. In such cases, the policy of the law is, that the controversy, when it involved less than $50, should be settled in the justice’s court, unless some error of law or fact is there committed. Where the real claim of the plaintiff is upwards of $50, an amendment has been allowed, reducing the claim for judgment below $50, or, in case such an amendment is made in the absence of the defendant, who may have relied on his right to a new trial, the amendment might be more objectionable.

But in a case like this, where the real claim of the plaintiff, as conceded by him on the trial, in the presence of the defendant, was less than $50, and where it is reasonable to suppose that the misstatement of the amount claimed was through ignorance and mistake, and where the amendment could not well have operated as a surprise upon the defendant, we cannot see but that the amendment, by conforming the complaint, as to its demand of judgment, to the real claim of the plaintiff, was in furtherance of justice.

*351[Fourth Department, General Term, at Buffalo] June 4, 1872.

Mullin, P. J., and Johnson and Talcott, Justices.]

While, of course, the statute is to be enforced, as to new trials in the county court, yet the practice of lying by with defenses and testimony, available in a justice’s court, but withheld there for the purpose of throwing a large bill of costs upon a plaintiff, who is proceeding in good faith, is not to be encouraged.

The judgment of'the county court must be reversed, and that of the justice affirmed.