
    Savillian F. Traffarn, App’lt, v. Charles Getman, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1888.)
    
    1. Justices’ court—Judgment of non-suit to be rendered on non-appearance OF PARTIES AT TIME SET FOR TRIAD—CODE ClV. PRO., § 3013 —When judgment by confession may be rendered—Code Ciy. Pro., § 3015.
    The plaintiff brought an action in replevin for a stove against the defendant in a justice’s court; issue was joined therein and adjournments had to June 31, 1883. The original return of the justice stated that on that day at the hour set the parties not appearing he rendered judgment in favor of the plaintiff, that he retain the stove in his possession together with the costs of the action, and that judgment was so rendered by him on the supposition that the matter was settled. The amended return states that in addition to this that he entered the judgment in his docket on-August 1, 1883, under compulsion exerted by the attorney for the appel lant. Held, that if there had been no appearance by the parties before the justicp on June 21, 1882, it would have been the duly of the justice to have granted a non-suit under the provisions of Code Civil Procedure, section 3013, hut that by the requirements of section 3015, where a judgment is confessed the justice must forthwith render judgment, and enter it in his docket hook.
    2. Same—Judgment based upon agreement of party—May not be questioned BY PARTY.
    Held, that the defendant having agreed that the plaintiff should have the property embraced within the issue joined before the justice, and that he, tie defendant, should pay the costs of the action, ought not to be permitted to question the action of the justice based upon the agreement.
    3. Same—Appeal ekom judgment of—Who is hot ah aggbieved pabtt within meaning of Code Oiv. Peo., § 1294.
    
      Held, the entiy of judgment in the docket having been made at the instance of and under compulsion exerted on behalf of the defendant, he could not be permitted to take advantage of that act, not being a party aggrieved within the meaning of Oode Civil Procedure, section 1294.
    4. Same—Appellate coubt must diseegabd ebboes hot affecting mebits—Code Civ. Pbo., § 3063.
    
      Held, that under the provisions of Oode Civil Procedure, section 3063, the appellate court uponan appeal from a judgment rendered by a justice’s court must render judgment according to the justice of the case without regard to technical error or defects, which do not affect the merits.
    Appeal from a judgment of the county court of Oneida county reversing a justices’ judgment.
    Plaintiff commenced an action in replevin for a stove against the defendant, and issue was joined and several adjournments had to the 21st day of June, 1882.
    In the original return the justice says, viz.: “June twenty-first the case was called at two o’clock at my house; the parties did not appear in person or otherwise, and no further proceedings in the case were taken by either party. Whereupon I did render judgment in favor of the plaintiff that the plaintiff retain the stove in his possession together with the costs of this action, amounting in the whole to $17.YO. Value of property $M. 00. * * * “I do hereby certify that I have entered the proceedings and judgment in this, my; docket, this first day of August, 1883.”
    The justice adds a postscript in his return, in which he says: “ Rendered judgment in this action as I supposed the case was settled. I met them on the street and they said they would be there to attend the case; the defendant said he would go no further as he could not get his witnéss; and they told me that S. F. Traffarn retain the stove, and he (G-etman) would pay the costs to me; to figure up the costs and he would pay it, which he did. ”
    In the amended return the justice states as follows: “That on the forenoon of the 21st day of June, 1882,1 met both the plaintiff and the defendant on the streets of Forestport; the defendant (Getman) stopped me and said he could not get his witnesses in the suit and he would make no further defense; that Traffarn could keep the stove, and he would pay up the costs and have the action dropped and settled; that Traffarn said, ‘All right; the matter is settled;’ I then left them, but when the hour of adjournment arrived, supposing it was necessary to keep some record of the matter to show how it was settled, I called the case at hour of adjournment and entered judgment on my minutes, that the plaintiff was to retain the stove in his possession, together with the costs, amounting the whole to $17.70. Value of property assessed at $14.00 * * * that after I had figured up the costs the defendant (Getman) paid them to me in full; I heard nothing further about the matter until about the 1st of August, 1883, when, being subpoenaed to bring my papers to Boonville, I there let A. L. Hayes, who is the attorney for appellant herein, look at them, and after doing so he said I must enter the judgment on my docket; I told him the matter had been settled and I would not do so; he told me I must do so, and if I did not he would get me indicted; and under the duress of this threat I did then enter the judgment on my docket.”
    The defendant’s notice of appeal bears date August 24, 1888, and purports to be from a judgment “ rendered m the above entitled action on the minutes kept by said justice on the 21st day of June, 1882, and entered in the docket of said justice on the 1st day of August, 1883, in favor of the plaintiff, that the plaintiff retain the stove in his possession together with the costs of this action, amounting in the whole to $17.50; value of property, $14.00.”
    The plaintiff’s attorney served a notice of argument, dated the 19th day of January, 1887, in which he states: “That the appeal herein will be brought on for argument, and a motion made on the justice’s amended return and the affidavits, copies of which are herewith served on you, to dismiss the appeal before this court at the next law term thereof, to be held at the court house in the city of Utica, on the 1st day of February, 1887.”
    The county judge reversed the judgment instead of dismissing the appeal, and the judgment of reversal was entered June 13, 1887.
    
      L. W. Fiske, for app’lt; A. L. Hayes, for resp’t.
   Hardin, P. J.

The respondent calls attention to section 3013 of the Code of Civil Procedure, which provides that a judgment of nonsuit “ must be rendered against the plaintiff prosecuting an action before a justice of the peace * * * if he fails to appear within one hour after the summons is returnable, or within one hour after the time to which the trial has been adjourned.” If there had been no appearance of the parties before the justice on the 21st of June, it would have been the duty of the justice to have granted a nonsuit; but section 3015 provides, “where a judgment is confessed * * * the justice must forthwith render judgment, and enter it in his docket book.”

Apparently the justice understood from the interview held with the parties, that it was the intention of the parties that the plaintiff should recover the property and that the defendant should pay the costs. He treated their understanding, as communicated to him, as the equivalent of confession of judgment, and entered the same in his minutes; the defendant having in effect assented that the justice might so regard the issue as disposed of by confession, and that the plaintiff should recover his property, and that the defendant should pay the costs of the action, and make an entry, in virtue of that arrangement, which is equivalent to carrying out the arrangement.

Under the circumstances, particularly after the defendant had acquiesced in the action of the justice for a year; if is not seemly that he should be heard to question the judgment rendered by the justice of the peace.

Section 3011 authorizes a judgment upon confession, if the defendant personally appeared before the justice, but that section provides, however, that the confession must be in writing, signed by the defendant and filed with the justice.

Apparently the defendant consented before the justice, in the presence of the plaintiff, that the judgment be entered against him, or at least the justice so understood it, and the entry made by the justice was in accordance with the agreement made by the defendant, to wit : That the plaintiff should have the property mentioned in the pleadings, and that the defendant should pay the costs incurred.

In Beecher v. Kendall (14 Hun, 327), the court upheld a judgment predicated upon a verbal acceptance of an offer of judgment, although the statute provides that if the plaintiff “accept the offer and give notice thereof in writing, the justice shall file the offer and acceptance thereof, and render a judgment accordingly.”

The personal assent to the acceptance was made in the presence of the justice and of the defendant. It was observed by the court in deciding that case, viz.: “ The provision of the Code was thus substantially complied with; but, if not, the defendant cannot here take advantage of the error. Again, it was a substantial confession of judgment by the defendant, when all the parties were present before the justice.” Gates v. Ward, 17 Barb., 424.

It is the duty of the appellate courts to indulge in every reasonable and warrantable intendment and presumption, in order to sustain proceedings and judgments of inferior tribunals.” Schoonmaker v. Spencer, 54 N. Y., 366; Fowler et al. v. Haynes, 91 id., 350.

Section 3063 of the Code of Civil Procedure, declares, viz.: “ The appellate court must render judgment according to the justice of the case, without regard to technical error or defects, which do not affect the merits.”

Applying the spirit of the language just quoted to-the case in hand, it seems to us that the defendant ought not to be permitted to question the action of the justice based upon his agreement; that the plaintiff should have the property embraced within the issue joined before the justice and that he should pay the costs of the action.- The action of the justice accords with “the merits” as admitted by defendants agreement.

Again, if we regard the entry of the judgment in the docket of the justice in August, 1883, as a part of the judicial duty of the justice to give force and validity to the judgment, that act was requested by the defendant as his attorney expressly insisted the justice should make the entry which he did in his docket. The defendant ought not to be permitted to take advantage of an act which he requested to be performed.

Section 1291 of the Code, provides that an appeal may be taken “by a party aggrieved.” It is difficult to see how the defendant was aggrieved by the entry made in the justice’s docket, upon the express request of the defendant’s attorney, or those of the threat made by him. We think the county court ought not to have reversed the judgment.

Judgment of the county court reversed, and that of the justices’ court affirmed with costs to the appellant.

Follett, J.

I am not prepared to hold, and I think it unnecessary to hold, that the justices’ judgment is valid; but I am clear the defendant had no right of appeal, and that the county court should have dismissed his appeal.

The judgment of the county court should be reversed with costs; and the defendant’s appeal to that court dismissed with costs.

Martin, J., concurs.  