
    (56 Misc. Rep. 249.)
    COOK v. COOK et al.
    (Chautauqua County Court.
    October, 1907.)
    Justices op the Peace—Jurisdiction.
    Where complaint in an action in a justice court demands judgment for $300, a judgment for $100 must be reversed, under Code Civ. Proc. § 2862, limiting the jurisdiction of the justice in action for breach of contract to an amount not exceeding $200, though the question of jurisdiction was not raised in the court below.'
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 218.]
    Appeal from Justice Court.
    Action by Edward Cook against Fred Cook and William Stevens. From a judgment for plaintiff rendered by a justice, defendants appeal. Reversed.
    A. F. Jenks, for appellants.
    T. W. Schiller, for respondent. ■
   OTTAWAY, J.

This action was brought in Justice’s Court. The complaint demanded judgment for the sum of $300. The answer was a general denial. The defendant demanded a jury, and went to trial upon the pleadings. At the close of the plaintiff’s case, the defendant moved for a nonsuit upon various grounds suggested by the evidence adduced. Upon the denial of the motion, ■ he rested his case. He brings this appeal, and asks that the judgment be reversed on the ground that the justice had no jurisdiction; the complaint demanding judgment for more than $200. The plaintiff urges that the contention of the defendant should not prevail for the reason that- he waived this right by appearing and taking part in the trial without raising the question of jurisdiction at any stage. He further contends that the appeal should not prevail for the reason that the jury rendered a verdict for only $100—a sum within the jurisdiction of the justice.

The judgment entered upon the verdict of the jury must be reversed. Section 2861 of the Code of Civil Procedure provides a justice of the peace has such jurisdiction in civil actions as is especially conferred upon him by statute, and no other. Section 2862 of the Code of Civil Procedure provides that a justice of the peace has jurisdiction in an action to recover damages for the breach of a contract where the sum claimed does not exceed $200. The amount claimed is the test of the jurisdiction of the justice. Parties could not confer jurisdiction upon a justice to try a cause where more than $200 was claimed; consequently there was no waiver by the defendant, who appeared and took part in the trial. Ballinger v. Ford, 14 Barb. 250 ; Dennis v. Crittenden, 42. N. Y. 542.

Judgment is reversed, with costs.  