36 N.Y.S. 591 | N.Y. Sup. Ct. | 1895
This is an appeal from a judgment of the Tompkins county court in favor of the plaintiff, and from an order denying a new trial, made upon the minutes of the trial judge. The action was originally commenced in a justice’s court to recover rent for the use of a house and lot owned by the plaintiff. The trial in justice’s court resulted in a judgment for the plaintiff for $19.50 and costs. The defendant appealed to the county court for a new trial, which resulted in a direction of a verdict for the plaintiff for the same amount, with costs. The defendant rented the plaintiff’s house of Joseph Utter and A. J. G-lanister, who were the plaintiff’s
It seems that, upon a new trial in county court on an appeal from a justice’s judgment, the case should be tried upon the issues formed by the pleadings in the justice’s court. Becker v. Barnum, 19 Wkly. Dig. 94; Longrill v. Downey (Super. Buff.) 7 N. Y. Supp. 503; Thompson v. Pine, 5 Hun, 647; Hayes v. Kedzie, 11 Hun, 577; Reno v. Millspaugh, 14 Hun, 229. Moreover, it was but just that the parties , upon a retrial should be allowed to introduce the same proof in the county court under the pleadings as they would have been allowed to introduce upon the trial in a justice’s court. If the last trial had been in a justice’s court, no reply being necessary, the plaintiff would have been entitled to prove that the defendant’s counterclaim had been paid. We think the same rule should apply upon a retrial of an action in the county court commenced in a justiceis court. In other words, we think that the samé proof, under the pleadings, should be admissible in the county court as would have •
Judgment and order affirmed, with costs.