JUSTICES' COURTS. JUSTICES' COURTS. 1. The plaintiffs brought an action before the justice of the peace, and complained for trespass quare clausum fregit, and treading down and destroying grass and herbage there growing, and treading down, eating up, and destroying corn, oats, wheat, apples, potatoes, and other grain and vegetables of the plaintiffs. The defendants answered by justifying "the acts of entering the close of the plaintiffs mentioned in the complaint," by averring a right of way across the locus in quo, by setting up other defencesof neglect to keep proper fences, license, and making a general denial "as to the residue of the acts complained of.-Held, that the defence of justification of entering the close went to the plaintiffs' entire right of recovery for the trespass charged, whatever other matters of defence were stated in the answer; and on the delivery to the justice, he was ousted of jurisdiction and was bound to discontinue the proceedings-not only as to one, or some of the alleged causes of action, but as to all, inasmuch as a defence of title to real property was interposed to all the trespasses charged in the complaints. Supreme Ct., 1865, Hall v. Hodskins, 30 How. Pr., 15. 2. A justice has power to amend a summons by correcting a clerical mistake in respect to the year named in it, which misled no one, and which was not discovered until after the cause was called and both the parties had appeared and answered before the justice. The statutes (2 Rev. Stat., 424, 225,) give the power of amendment to justices' courts which courts of record possess. Supreme Ct., 1865, Bradbury v. Van Nostrand, 45 Barb., 194. 3. It is well settled that notwithstanding the defendant in a suit before a justice of the peace, fails to appear at the trial, the plaintiff must establish his cause of action by legal evidence. [29 Barb., 523; 20 Id., 278.] Supreme Ct., 1865, Armstrong v. Smith, 44 Barb., 120. 4. The practice in regard to appeals from a justice's judgment to the county court, introduced by the act of 1862, amending § 371 of the Code of Procedure, stated. Wynkoop v. IIalbut, 33 Barb., 266. 5. Under section 371 of the Code, as amended by the act of 1862, where the party against whom judgment has been recovered in a justice's court appeals therefrom, claiming, in his notice of appeal, that the judgment should have been in his favor, and upon the appeal the respondent recovers judgment again, though for a less amount, the appellant it not entitled to costs, but the respondent is. Under such a notice the respondent is not entitled to serve an offer to reduce his judgment, and therefore is not chargeable with costs if it be merely reduced upon the appeal. Supreme Ct., 1865, Wynkoop v. Halbut, 43 Barb., 266. 6. Under the amendment of 1864 (Laws of 1864, 997, ch. 414, § 4) to section 371 of the Code of Procedure, providing that if, in a notice of appeal from a justice's court, the appellant shall not state in what particular the judgment should have been more favorable to him, the notice must show distinctly what the error of the justice really was, in language plain and explicit. A general statement that "judgment should not have been for a JUSTICES' COURTS. sum exceeding" a specified amount is not sufficient. This does not point to any particular error. [Reviewing 25 How. Pr., 144; Id., 158; 27 Id., 67; 29 Id., 232]. Supreme Ct., 1865, Gray v. Haunah, Ante, 43. See to the contrary Smith v. Hinds, 30 How. Pr., 187. 7. Under section 371 of the Code of Procedure, if a party appealing from a justice's judgment would entitle himse f to costs, his notice of appeal must specify in plain and explicit language what the error or mistake of the justice really was. If the judgment was a recovery upon a single cause of action for unliquidated damages, a notice merely stating that the judg ment should not have been for a sum exceeding a specified sinal er amount, without pointing out any element in the damages that was erroneous, is not sufficient to entitle the appellant to costs. Supreme Ct., 1866, Gray v. Hnnah, Ante, 43. 8. Under section 371 of the Code of Procedure, as amended, a notice of appeal from a justice's court, in order to charge the respondent with costs, must not merely object to the whole judgment, but must point out or particularize wherein the judgment should have been more favorable. It is not sufficient in this respect to state. that the judgment was 66 excessive," or that there was no evidence to warrant a judgment for a sum exceeding a specified amount; or, that there was error in allowing a recovery for a specified thing, without saying how the judgment should be modified in this respect. Supreme Ct., 1866, Loveland v. Atwood, 31 How. Pr., 467. 9. The provision of section 371 of the Code,-respecting the notice of appeal necessary to entitle the appellant to co ts,-amended, by requiring that if he claims that the amount of judgment is less favorable to him than it should have been, he should state what should have been its amount; and adding a proviso that the appellant shall not recover costs unless the judg ment appealed from shall be reversed on such appeal, or be made more favorable to him, to the amount of at least ten dollars. 2 Laws of 1866, 1842, ch. 924, § 14. 10. Where a notice of appeal from a justice's judgment, specifying the particulars in which the judgment should have been more favorable to the appellant, is served upon the respondent, the respondent in serving his offer of acceptance, must not only serve it upon the party, but also upon the justice. The statute has made the respondent's right to costs depend upon a compliance with its provisions. Supreme Ct., Gen. T., 1865, Smith v. Hinds, 30 How. Pr., 187. 11. The court to which an appeal is taken from a justice's court should not dismiss the appeal upon the objection that the notice was not stamped, as required by the United States Internal Revenue Law. Chenango Co. Ct., 1866, Lewis v. Randall, Ante, 135. 12. Where the appellant, in accordance with the provisions of section 352 of the Code, states in the notice of appeal that such appeal is taken upon questions of law only, the court below shall return to the appellate court the testimony, proceedings, and judgment. 2 Laws of 1866, 1841, ch. 824, § 13, amending Code of Pro., § 360. 13. An offer by the respondent, on an appeal from a judgment in a justice's court, to reduce the amount of a recovery, is not admissible in evidence on the trial of the appeal in the county court for the purpose of influencing the JUSTICES' COURTS. jury to the prejudice of the respondent's case. N. Y. Supreme Ct., 1865, Finney v. Veeder, Ante, 366. 14. The Code of Procedure nowhere describes the precise form of the undertaking to be given upon an appeal from the judgment of a justice's court. An undertaking which substantially conforms to the directions of section 356 is sufficient. Ct. of Appeals, 1865, Doolittle v. Dininny, 31 N. Y., 350. 15. The pendency of an appeal from a decision of a justice dismissing a complaint against the objection of the plaintiff, does not enable the plaintiff, in such action, when sued by the defendant in another court upon a cross demand, to set up that such cross demand ought to have been interposed as a set-off, and is barred by 2 Rev. Stat., 233, 236, § 57, because it was not so interposed. The erroneous dismissal of a suit by a justice of the peace, against the remonstrance of the plaintiff, puts an end to it, as effectually as though it was dismissed on the plaintiff's motion. And an appeal from the judgment of dismissal does not restore the action, Supreme Ct., 1864, Lord v. Ostrander, 43 Barb., 337. 16. A ruling that a witness was bound to answer a question, which he nev ertheless refused, and was not compelled to answer, is not a ground for reversing a judgment which appears upon the merits to be free from error. Assuming the rule to be erroneous, it is a mere speculation to say that the ruling prejudiced the defendant in the minds of the jury, and produced the verdict against him, where there is no evidence that such its effect, in fact. The presumption is the other way, since it was the duty of the jury to base their verdict on the testimony alone. Supreme Ct., 1865, Murphy v. Tripp, 44 Barb., 189. 17. It is well established that in order to reverse proceedings of a justice court, proper objections must be there taken. Every reasonable intendment will be indulged in support of a judgment of that court. Ct., 1865, Duntz v. Duntz, 44 Barb., 459. Supreme 18. The rule that questions arising upon conflicting evidence must be left to the tribunal that hears the testimony, and sees the witness upon the stand, inflexible. Reynolds v. Kelly, 1 Daly, 283. 19. Where, on the trial of an action brought before the county court, on appeal from a justice's court, the plaintiff is nonsuited, he cannot appeal directly from the judgment of nonsuit to the supreme court; but must first move in the county court for a new trial; and procure the decision of that court upon the exceptions relied on. Supreme Ct., IV. Dist., 1864, Simmons v. Sherman, 4 How. Pr., 4.* 20. That on appeal from a justice's court, where material, but incompetent evidence upon the issue was admitted, on the trial, the county court will not refuse to reverse on the ground there was other evidence sufficient and competent, to the same effect. Columbia Co. Ct., 1866, Decher v. Myers, 31 How. Pr., 372. Following the decision of the general term of the fifth district, in Carter v. Wisner, 27 How. Pr., 385, and disapproving that of the general term in the sixth district, in Monroe v. Monroe (Id., 208). LIMITATION OF ACTIONS. 21. That the finding of a jury in a justice's court, on a question of fact, will not be reviewed on appeal to the county court, if the evidence was conflicting. Ib. CERTIORARI, 10, 11: Costs, 6: DISTRICT COURT OF THE CITY OF NEW YORK: FORMER ADJUDICATION, 2: MARINE COURT. JUSTICE OF THE PEACE. 1. Towns which touch each other at the corners are "next adjoining" within the meaning of a statute giving jurisdiction of an action to any justice of a town next adjoining the residence of the plaintiff or defendant Ct. of Appeals, 1865, Holmes v. Carley, 31 N. Y., 289. 2. A justice of the peace in making a return on appeal, acts ministerially, and is liable in damages for a false return. Supreme Ct., 1864, MacDonnell v. Buffum, 31 How. Pr., 154. LACHES. The criterion of what is excuse for laches in practice, which is applicable to individuals generally, is not to be strictly applied to the law officer of a municipal corporation, to the prejudice of the rights of the public whose officer he is. In a clear case of excusable negligence and palpable error, the court may grant relief on terms, even after a delay which might bar the application of an ordinary suitor. N. Y. Superior Ct., Sp. T., 1866, Greer v. Mayor, &c., of New York, Ante, 206. LEGAL TENDER. 1. Under the Act of Congress of February 25, 1862 (12 U. S. Stat. at L., 711), making the notes issued by the United States "lawful money, and a legal tender in payment of all debts, public and private, within the United States;"-a contract for the payment of a sum in gold and silver dollars is satisfied by payment in such legal tender notes. N. Y. Superior Ct., 1866, Wilson v. Morgan, Ante, 174. 2. A claim for the payment of freight is a debt of the consignor, within the meaning of the Act, and the consignee may discharge it by payment in such notes. Ib. LEGATEES. CAUSE OF ACTION, 3. LIMITATION OF ACTIONS. 1. Under the Code, the period limited for the commencement of actions upon a judgment or decree in any court, is twenty years, and this includes judgments in the marine or justice's courts. Supreme Ct., 1865, Conger v. Vandewater, Ante, 126. 2. An action brought against administrators, upon a promissory note by their intestate, although more than one year after the letters of administration LIS PENDENS. are issued, but within six years (excluding in computing them the eighteen months immediately following the death of the intestate), after the note fell due, is not barred by the statute of limitations. Supreme Ct., 1865, Scovil v. Scovil, 45 Barb., 517: S. C., 30 How. Pr., 246. 3. A defendant in a personal action, who is resident abroad, cannot avail himself of the statute of limitations of this State until he has returned to, and actually been, a resident of this State, and subject to process of its courts, for the period prescribed by the stature. The lex fori governs all questions arising under the statutes of limitations of the various States of this country. [tory's Confl. of L., § 577.] Hence, the courts of this State cannot give effect to the statute of limitations of another State, even in a case where both the plaintiff and defendant, at the time when the right of action accrued, were, and ever since have been, residents of such other State. [20 N. Y., 224; 3 Johns., 262; 7 Mass., 516; 11 Pick., 36.] Supreme Ct., 1864, Power v. Hathaway, 43 Barb., 214. 4. The time during which an injunction prevented the commencement of an action upon a premium note, deducted (under section 105 of the Code of Procedure) in computing the six years requisite to bar the action. Ct. of Appeals, 1865, Sands v. Campbell, 31 N. Y., 345. 5. When the statute of limitations commences to run against the right of action, for contributions from one equitably interested in corporate stock, towards a payment made by the nonsuit stockholder upon corporate debts. Stover v. Flack, 30 N. Y., 64; affirming S. C., 41 Barb., 162. 6. Under the statute of limitations of this State, in determining whether the action is barred, the only question is whether the defendant has been within the State, and amenable to process of its courts for six years before the commencement of the suit. If so, the statute is a complete defence, except in cases of special disabilities specified in section 101 of the Code of Procedure, in favor of the plaintiffs. Unless the plaintiff labor under some one of the disabilities specified in that section, he must commence his suit within the time limited in the statute, for the several causes of action therein mentioned, wherever he may chance to reside, whether a citizen of the United States, or an alien. Supreme Ct., 1864, Power v. Hathaway, 43 Barb., 114. 7. A condition annexed to a policy of insurance, that no suit or action against the insurers, for the recovery of any claim upon the policy, shall be sustainable in any court of law or chancery, unless commenced within six months next after any loss or damage shall have occurred, is valid; and if an action is not commenced within that time, it will be barred. Ct. of Appeals, 1864, Ripley v. Etna Ins. Co., 30 N. Y., 136; Roach v. N. Y. & Erie Ins. Co., Ib., 246. ANSWER, 6, 7. LIS PENDENS. NOTICE. |