
    The McCall Company, Appellant, v. Frederick Unser, Respondent.
    Second Department,
    May 7, 1909.
    Court — appeal from judgment of justice of peace taken by default— County Court cannot reverse its own order — new trial before justice.
    Where a justice of the peace refused the defendant’s application for time to amend a defective verification to his answer, and the defendant appealed from a judgment for the plaintiff demanding a new trial in the County Court, and the plaintiff’s motion to dismiss the appeal in so far as it demanded a hew trial was granted without objection by the defendant, who claimed only that he should be permitted to amend his verification nunc pro tunc, the County Court cannot thereafter reverse the judgment and order a new trial before the justice if there is no showing that a manifest injustice has been done.
    This, because the County Court in effect reversed or modified its own order, and because the defendant, by acquiescing in the dismissal of his appeal in so far as it sought a new trial, conceded that his answer was a nullity.
    Although section 3064 of the Code of Civil Procedure authorizes the County Court in its discretion to reverse the judgment taken by default before a justice of the peace and grant a new trial, it can only do so where defendant shows that the. judgment has worked a manifest injustice and has also excused his default. <
    Appeal by the plaintiff, The McCall Company, from an order of tire County Court of Nassau county, entered in the office of the clerk of said county on the 22d day of January, 1909, reversing a j udgment of a Justice’s Court of the town of Hempstead in favor of the plaintiff and directing a new trial.
    
      Lincoln B. Haskin, for the appellant.
    
      George H. Savage [Reno R. Billington with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff in this action, by a verified complaint, set out a cause of action for the value of certain goods sold and delivered to the defendant. This action was brought in Justice’s Court, and the defendant, it appears from the affidavits, put in an answer, the nature of which is nowhere disclosed. The verification of this answer was defective, in that the venue was laid in New York county, while the. oath was administered by a notary public of Nassau county. This, it would appear,- was merely an inadvertence, and upon the return day defendant appeared by án attorney and offered this answer. Upon his attention being called to the defective verification, the attorney offered to have the same corrected, and asked to have the case held for this purpose, but the learned justice refused to grant any time and gave judgment for the plaintiff for the amount claimed. The defendant served a notice of appeal, demanding a new trial. The plaintiff moved to dismiss the appeal, - in so far as it demanded a new trial, and asked to have the case placed on the law calendar for argument. This motion was granted, and an order was duly entered and served, the defendant--not appealing from such order. The learned County Court, in the order now under consideration, recites -the fact of this modified order, and it appears that the defendant upon the argument of the appeal merely contended that he should be permitted to-amend the original verification nunc pro tuno, but in spite of this situation and without a single fact, so far as appears from the record before us, to show that any kind of injustice had been done the defendant, the judgment was reversed and a new trial ordered before the same justice. This is in effect, permitting the County Court to reverse or modify its own order in a case, a practice which this court has recently held not within the province of the Surrogate’s Court, and we are of the opinion that it should not be sanctioned here. The defendant, by acquiescing in the order dismissing his appeal in so far as it sought a new trial, conceded that his answer was a nullity, whatever we might think upon that subject if it were now before us, arid he was, therefore, in default at the trial. Section 3064 of' the Code of Civil Procedure provides for such a case; he may, by affidavit or otherwise, show that “manifest injustice has been done,” and render “a satisfactory excuse for his default,” whereupon the court may, in its discretion, set aside the judgment and grant á new trial. How can it be said that “ manifest injustice ” has been' done the plaintiff in this action simply because an answer, the nature of which is not disclosed, has been rejected because of a technical defect? The claim set forth is for goods sold and delivered to the defendant for an agreed and reasonable value, and so far as we are informed, the answer may not have raised any issue whatever. The answer should not only appear (Schumpp v. Interurban St. R. Co., 81 App. Div. 576), but it should be made to appear from facts and circumstances that the judgment has worked a manifest injustice, and that, in conjunction therewith, there was a proper excuse for the default. These conditions 'are required by the statute, and without them there is no jurisdiction in the- County Court to exercise its discretionary powers.

The order appealed from should be reversed.

Jenks, Gaynor, Burr and Miller, JJ., concurred.

Order of the County Court of Nassau county reversed, with ten dollars costs and disbursements,  