
    COURT OF APPEALS.
    Victoria Lalliette, resp’t agt. Cornelius Van Keuren, appel’t.
    An affidavit to ground a motion to dismiss an appeal because the suit in the Supreme court is a continuation of one commenced before a justice must show the fact in terms, that the justice was ousted of jurisdiction by the giving of the undertaking required by § 56 of the Code.
    
    
      January Term, 1853.
    
      This was a motion by the respondent to dismiss the appeal in this action upon the ground that the court had no jurisdiction. The affidavit upon which the motion was founded, reads as follows:
    (Title of the cause.) “ Cayuga County, ss: Paris G. Clark, of Auburn in said county, being duly sworn, says, that this action was originally commenced in a Justice’s Court, where the plaintiff declared against the defendant in trespass for breaking into and entering upon her premises; and the defendant by his answer plead title to the locus in quo. That thereupon the justice discontinued the action and the same was commenced in the Supreme Court, according to the statute in such case made and provided. And the said action was tried in the Supreme Court upon the same pleadings, substantially, as were interposed in the said Justice’s Court. And that judgment was entered in the said action in the said Supreme Court in favor of the said plaintiff, from which the said defendant has appealed to this court.
    And this deponent further says that he was one of the attorneys for the said plaintiff in the said action in the Supreme Court, and is the attorney for the respondent in this court.”
    (Signed, &c.)
    Paris G. Clark, Attorney, and N. Hill Jr. Counsel for respondent.
    
    James R. Cox, Attorney, and Warren T. Worden, Counsel for appellant.
    
   By the Court, Ruggles, Ch. J.

The affidavit on which the motion to dismiss the appeal is founded, is fatally defective in not showing that the justice of the peace was ousted of his jurisdiction by the giving of the undertaking required by the Code, section 56. This suit can not be regarded as a continuation of that before the justice, unless the party was prevented from going on before the justice, by the filing of the undertaking there, as well as the plea of title.

The motion must be denied with ten dollars costs; but without prejudice to a future motion on sufficient affidavits.  