
    Moore, Overseer of the Poor, v. Trimmer, (four cases.)
    
      (Supreme Court, General Term, Fifth Department.
    
    April 12, 1889.)
    Set-Oee and Counter-Claim—Jury Trial.
    A counter-claim in an action by an overseer of the poor for a statutory penalty of S50 for illegally selling liquor, alleging that plaintiff owes defendant 8100 for money advanced to him officially, under a promise to refund it if he should sue defendant for such a penalty, is not authorized by Code Civil Proc. N. Y. § 501, which provides that a defendant may file, as a counter-claim, a cause of action arising out of the same contract or transaction as that sued upon; or, if the action be on contract, such counter-claim may consist of any other cause of action arising from contrae , existing at the commencement of the action; and such plea is so obviously improp er
    
      that it creates no issue requiring a jury trial, under section 3068, which provides for such a trial in the county court on an appeal from, a justice, when an issue of fact was joined in the justice’s court, and the judgment demanded exceeds §50.
    Appeals from Monroe county court.
    William Moore, overseer of the poor for the town of Parma, brought four actions before a justice, against David Trimmer, for the statutory penalty of $50, for a violation of the excise laws. Defendant filed a counter-claim, alleging that plaintiff was indebted to him in the sum of $100, money advanced to plaintiff officially, who agreed to refund it if he should at any time bring an action against defendant for selling liquor contrary to law. Code Civil Proe. N. Y. § 501, authorizes any defendant to file a counter-claim consisting •of any cause of action against plaintiff arising out of the contract set forth in plaintiff’s complaint as the foundation of his claim, or,.if the action be on •contract, any other cause of action arising on contract existing at the commencement of the action. No proof tending to establish this claim was offered, and the justice gave judgment for plaintiff. Defendant appealed to the county court, which struck the actions from the jury calendar, and ordered them to be heard by the court. Defendant appeals.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      Turk & Barnum, for appellant. W. Martin Jones, for respondent.
   Macomber, J.

The action was brought before a justice of the peace in

the town of Parma, to recover the statutory penalty of $50 for the violation of the excise law. Among the defenses set up by the defendant was a counterclaim setting forth an alleged contract with the plaintiff to the effect that the plaintiff, as overseer of the poor, was, and still is, justly indebted to the defendant in the sum of $100, for moneys advanced by the defendant to the plaintiff, as overseer of the poor, on an agreement that the same was to be refunded to the defendant if at any time any action should be brought against the defendant by the plaintiff to recover a penalty for selling liquor contrary to law. By reason of this allegation in the answer, though no evidence to support the same was given before the justice of the peace, and a judgment was accordingly given against the defendant for the penalty and costs, it is claimed that the defendant is entitled to a new trial in the county court with a jury, under section 3068 of the Code of Civil Procedure, which provides that where an issue of fact or an issue of law is joined before the justice, and the sum for which judgment is demanded by either party exceeds $50, a new trial shall be had in the county court, if asked for. If the answer of the defendant before the justice of the peace was proper and serious, and not manifestly a sham, the contention of the counsel for the appellant would prevail. An improper or sham pleading before a justice of the peace cannot be made the basis of a demand for a new trial in the appellate court. It is evident that if this case had come up for trial in the county court with a jury, the evidence .attempted to be given of this pretended counter-claim would have been necessarily excluded for the reason that it does not come within section 501 of the Code of Civil Procedure. Denniston v. Trimmer, 27 Hun, 393. The county judge, knowing that this would be the inevitable result of a new trial of the •case, was not compelled to await such a denouement, but had clearly the power to order a further return by the justice, presenting all of the facts disclosed before him, so that the appeal could be determined upon questions of law alone. The order of the county court should be affirmed, with $10 costs in each case, and disbursements in one. All concur.  