
    The People of the State of New York, Appellant, v. John D. Wait, Respondent.
    Third Department,
    June 27, 1906.
    Justice’s Court — action to recover penalty under Game Law — power of justice to allow amendment reducing claim to amount within his jurisdiction.
    Although a complaint in a Justice’s Court demands damages in excess of the jurisdiction of that court, when the defendant appears on the return day the justice has power against objection to allow an amendment of the complaint reducing the claim to an amount within his jurisdiction.
    This rule obtains in actions to recover a penalty under the Forest, Fish and Game Law.
    Appeal by the plaintiff, The People of the State of New York, from a judgment of the County "Court of Rensselaer county in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 22d day of December, 1905, upon an order of the said" County Court, bearing date the 15th day of December, 1905, and entered in said clerk’s office pursuant to a decision of the court dismissing the complaint and also from the said order upon which the aforesaid judgment was entered.
    
      The action was commenced in a Justice’s Court. Tiie summons was issued and served upon the defendant, who appeared in court upon the return day thereof. The plaintiff thereupon filed a written complaint charging that the defendant in December, 1904, had unlawfully killed and had in his possession twelve partridges or grouse, contrary to the provisions of sections 25 and 39 of chapter 20 of the Laws of 1900 and the amendments thereto, known as the Forest, Fish and Game Law, and demanding judgment for $200 penalty. The defendant interposed a verbal general denial, and the cause was adjourned to a subsequent day. On the adjourned day the complaint was amended so as to allege the wrongful killing of two partridges or grouse instead of twelve, and by asking for judgment for $110 instead of $200. Another adjournment was then taken, and on the adjourned day the plaintiff’s attorney appeared as well as the defendant in person with his attorneys, and the trial was proceeded with. After the conclusion of the plaintiff’s testimony, the defendant’s counsel made a motion to dismiss the- complaint on the ground, among others, that the court had not jurisdiction of the subject-matter of the action. The motion was denied, and after the defendant’s proof ivas received, the justice rendered judgment in favor of the plaintiff for $85 damages, besides costs. The defendant thereupon appealed to the County Court for a new trial. At the opening of the trial in the County Court the defendant’s attorney moved to dismiss the complaint upon the ground that the Justice’s Court had no jurisdiction of the subject-matter of the action. The court denied the motion, reserving the right to reconsider it after a vei’dict. The jury rendered a verdict in favor of the plaintiff for $85. Defendant’s counsel thereupon moved to set aside the verdict upon the same -grounds. That motion was not passed upon, but the court on a reconsideration of the reserved motion granted it aud dismissed the complaint. From the judgment and order of dismissal the plaintiff has appealed.
    
      John B. Holmes and Nelson Webster, for the appellant.
    
      Samuel Foster, for the respondent.
    
      
      See Laws of 1900, chap. 20, § 25, as amd. by Laws of 1902, chap. 317; Id. § 39, as amd. by Laws of 1904, chap. 580.—[Hep.
    
   Chester, J.:

Under subdivision 3 of section 2862 of the Code of Civil Procedure the justice of the, peace, before whom the action was originally tried, had jurisdiction of an action for a fine or penalty not exceeding $200. Although the penalty under section 39 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by Laws of 1904, chap. 580) for killing twelve partridges amounted to upwards of $200, yet the prayer for relief was only for that amount. It is not necessary, however, in this action to determine whether the complaint as originally filed brought the case within the jurisdiction of the justice. He clearly acquired jurisdiction of the person of the defendant by the personal service of the summons upon him within his county (Barnes v. Harris, 4 N. Y. 375), and the defendant appeared in court in pursuance of such service.

The justice also had the right to allow an amendment to the complaint (Code Civ. Proe. § 2944), and after the amendment which was made the cause of action unis clearly brought within the jurisdiction of the justice, regardless of the question whether the original complaint stated a cause of action within his jurisdiction. ( Woolley v. Wilber, 4 Den. 570.) The case cited was one where the declaration stated twp causes of action, in each of which damages were claimed up to the'limit of the justice’s jurisdiction. The objection was taken by the defendant that the justice had no jurisdiction, whereupon an amendment was allowed against his objection, bringing the amount claimed within the justice’s jurisdiction, and it was held by Bronson, Oh. J., on a writ of error, that the amendment was properly allowed.

After the amendment the justice, therefore, had jurisdiction both of the defendant and of the cause of action.

It is conceded by the respondent’s counsel that in actions other than for a penalty the authorities sanctioned an amendment to bring the action within the jurisdiction of the justice when too much has been claimed in the first instance, but he claims that in actions for a penalty the principle does not apply. lie does not, however, call our attention to any authority so holding; nor is it apparent why there should be any distinction between the two classes of cases.

The judgment and order of the County Court should be reversed, with costs in this court and in the County Court, and the case remitted to the County Court to proceed upon the verdict.

All concurred.

Judgment and order of the County Court reversed, with costs in this court and in the County Court, an„d the ease remitted to the County Court to proceed upon the verdict.  