
    Peter Carr, Resp’t, v. Elizabeth Smith, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888.)
    
    ■County court—Appeal to—Effect on practice of stipulation made in justice’s court.
    Two actions for tort were brought in a justice’s court, the plaintiff in one being the defendant in the other, and were set down for hearing on the same day. Subsequently, by consent of the parties, they were heard together, the claim in one being allowed to be presented as an offset to that in the other. Upon an appeal taken to the county court for a new trial from the judgment rendered there in the combined action: Held, that the practice of the lower court was improper, yet the agreement having been made, the same evidence should be admitted in the county court as was admissible under it in the justice’s court.
    Appeal from the verdict of a jury against the appellant herein, for the sum- of $25.00, on which judgment was entered in the county court of the county of Schenectady, •on the 24th day of May, 1887.
    This action originated in a justices’ court of Schenectady -county, October 2, 1886. The complaint is for trespasses committed on the respondent’s lands, by the appellant’s horses, cattle and sheep, and demands judgment for $150. The answer is a general denial. The cause was tried by a jury, October 25, 1886. The respondent, on the trial, claimed to recover damages for the alleged trespasses, and gave evidence thereof. The appellant claimed to have an offset of $75.00, and introduced evidence to sustain her claims. This so-called set-off consisted of an action then pending before the same justice for trespasses, in which she, the appellant, was plaintiff, and the respondent in this action, defendant, which was, by consent of counsel, then tried. The jury found a verdict of no cause of action. On the 10th day of November, 1886, the respondent appealed for a new trial in the county court.
    In the appellate court, January term, 1887, the appellant's answer was amended by alleging therein trespasses by the respondent’s chickens and stock on the appellant’s lands and also by setting up causes of action on contract. This action was tried in the appellate court, May 19, 1887, and a verdict of twenty-five dollars found for the plaintiff, respondent now. The appellant was sworn in her own behalf, but not permitted to give evidence of trespasses by the respondent’s chickens and stock on her lands. The appellant’s counsel excepted to the ruling of the court, and moved to dismiss the appeal, which was denied, and the counsel excepted.
    
      D M Chadsey, for app’It; Simon Calkins, for resp’t.
   Learned, P. J.

This case shows the evil of departing from the ordinary course of practice.

Carr sued Smith in justices’ court for trespass of, cattle on his land.

Smith sued Carr in the same court for a similar cause of action.

Both actions were returnable the same day; the former in the morning, the latter in the afternoon. On the adjourned day for trial, according to the return of the justice in the action above entitled, the case of Smith v. Carr was, by consent of counsel, merged into and brought as an offset, in the action of Carr v. Smith, and both actions were tried as one.

A verdict of no cause of action was rendered. Carr appealed to the county court.

Among the papers there appears a motion in the county court to amend the answer, and it purports to be granted. Smith claims that this order was only in the nature of an order for a further return from the justice setting up the complaint in the Smith case as part of the answer in the Carr case.

We must, however, take the actual return of the justice. That states that Smith, in her answer, claimed to have a set-off of $75, for which she claimed judgment.

When the case came on for a new trial, in the county court, that court excluded all evidence on defendant’s part of trespasses committed by plaintiff. The defendant excepted.

Now it seems plain that, in the justices’ court, the parties practically gave up the Smith case as an independent cause •of action and agreed to use it as a set-off or defense in the Carr case. As the justice says, the Smith case was merged.” If the appeal to the county court had not demanded a new trial, there would be less difficulty. The consent of the parties would have shown that the justice •committed no error.

But the difficulty is to determine how far this consent of parties controls the admission of evidence in the county court.

Ordinarily, of course, a mere admission of improper evidence in the justices’ court by consent, would not compel its admission in the county court. But here there is more. The parties agreed practically to give up the Smith case and try its cause of action as a defense in the Carr case. We must treat this as making an arbitration of the two actions or else we must consider the agreement as binding upon the county court in the new trial. Otherwise a great wrong will be done to Smith. Her own action is lost and she is precluded from using the claim as a set-off.

The case is not free from difficulty. The agreement to try the two cases as one, though apparently wise, has proved to be injudicious. More trouble and expense have been made than would have followed the due and orderly course of practice.

Upon the whole, with some hesitation, we think that justice would best be done by holding the parties in the county court to the agreement made in the justices’ court, and by deciding that the defendant may prove in the county court whatever she might, according to consent of counsel, have proved in support of her own claim as a defense or offset in the justice’s court.

Precisely what her alleged claim was in the justice’s court, does not appear by the return. It may, perhaps, appear in the order of the county court. If not, a further return may be necessary. On that, we decide nothing. But we think that the defendant should be allowed to prove in the county court by way of defense or off-set, such facts as by consent of counsel, she was allowed to prove under her answer in the justice’s court.

Cost of appeal to abide the event.

Landón and Ingalls, JJ., concur.  