
    Oscar Bronson, Respondent, v. Carthon Gutches, Appellant.
    
      Justices Court — what is involved in the determination whether.an affidavit is “satisfactory proof” that the.justice is a material witness.
    
    Where, in an action brought in a Justice’s Court, the defendant files an affidavit under section 3151 of the Code of Civil Procedure, stating that the justice himself is a material witness for the defendant, without whose testimony he cannot safely proceed to trial, and further stating what he expects to prove by him, the justice is not justified in disregarding the affidavit by a statement made in his return on appeal; viz., "The court knowing the statement.was not true,' denied the motion.”
    'The power of a justice to pass upon the question whether an affidavit is ’“ satisfactory proof” does not mean the power to determine its truth or falsity; that issue must be tried before another magistrate, when both parties can testify as. witnesses under the solemnity of an oath.
    Appeal by the defendant, Carthon Gutches, from a judgment of the County Court of. Chenango county in favor of the plaintiff, ■entered in the office, of the clerk of the county of Chenango on the 1st day of July, 1896, affirming a judgment rendered by a justice ■of the peace. .
    The plaintiff brought this action alleging a breach of the terms and conditions of a lease between him and the defendant, whereby he suffered damage in'the siim of eight dollars, j
    Upon. the return day. of. the summons and upon- the filing of plaintiff’s complaint, the defendant filed an affidavit with the jus-, tice setting forth that the justice before whom the cause was pending “is a material witness for this deponent in the said cause* and that he cannot safely proceed to the trial ’thereof without the testimony of the said Justice G. R. Jacobson.
    “And this deponent further says that he. expects to prove' by the said- justice the following facts and circumstances (to wit) that •on the second day of February inst., and at the time of the issuing of the summons in this, cause or proceeding, he* the said Oscar,
    , Bronson, plaintiff, acknowledged and said to said justice that this •deponent did not owe him anything and he did not expect' to ■recover, and that he had paid' him in full, but he, this deponent, .had acted unfairly, and he, the .said plaintiff, meant to make him suffer for it, and that he sued him to make costs and trouble, and deponent further says that he is unable to prove the said admissions by any other person than the said justice.”
    This affidavit was subscribed and sworn to by the defendant. Notwithstanding the filing of this affidavit, the justice proceeded with the trial of the action, the defendant not participating therein: The trial resulted in the rendition of a judgment in favor of the plaintiff and against the defendant.
    In the view, that is taken of the case by this court, it is unnecessary to state any facts relating to the merits of the case.
    
      Hubert G. Stratton, for the appellant.
    
      Oharles 0linton, for the respondent.
   Herrick, J.:

The Code of Civil Procedure (§ 3151) reads as follows: “ If, before an issue of fact is joined in an action or special proceeding,, the defendant, or where he has not been arrested, his attorney, presents to the justice satisfactory proof, by affidavit, that the justice before whom - the action or special proceeding is pending is a material witness for the defendant, without whose testimony he. cannot safely proceed to trial, setting forth therein the particular-facts and circumstances which he expects to prove by him, the-justice must forthwith make a written order directing the action or special proceeding to be continued before another justice of the same town or city named in the order.” Similar statutes have heretofore been the subject of investigation.

At the time the case of Young v. Scott (3 Hill, 32) was decided,, the statute provided for an affidavit similar to that now required,, and provided that upon the filing of such an affidavit the case should be discontinued. “ If the justice shall be satisfied that he is a. material witness for the defendant, and that without his testimony the defendant cannot safely proceed to trial and not otherwise.” (Laws of 1838, chap. 243, § 1.)

Under that law the court held that,, while the justice could judge of the sufficiency of the affidavit, yet he could not refuse a discontinuance upon the ground that he did not recollect the facts which the defendant expected to prove by him.

The words of the present statute, satisfactory proof,” mean practically the same thing- as the words “if the justice shall be satisfied” in the former; and it seems to .me that the sainé construe^ tion should be given to the present statute as was given to the former one, and that he. now -lias, as the court decided he then had, the power to pass upon the sufficiency of the affidavit; that is, whether it contains the .statutory reqiiirements, and whether the facts aiid circumstances which he specifies. as those he expects to prove- by ■him constitute him a material witness.

. In'this case the justice did not pass upon the. sufficiency of the affidavit; if he had, his action could be reviewed upon appeal: He disposed of .the matter by simply saying the affidavit was false. " The return says: “The court, knowing the statement was not true, denied the motion.” If an affidavit Can be disposed, of in that way,, then the question is beyond • review. The appellate court has no means of determining who tells the truth, and the justice will then have-it in his power arbitrarily to defeat a defendant’s application,, deprive him of a necessary witness, and not have his action in that respect reviewablempon appeal.

. The power to-.pass upon the. sufficiency of an affidavit does not mean the power to determine ás to its truth or falsity; that is not the test.of sufficiency.; .

If there is any issue of - veracity between the justice and the defendant, that issue cannot he tried before such justice, and upon his unsworn statement opposed to the defendant’s affidavit, but. : before another magistrate, where both testify as witnesses under the solemnity of an oath.

In Hopkins v. Cabrey (24 Wend. 264) the court said : “ The justice had -no right to interpose his private, knowledge or recollection-as' an answer to ' the ¡affidavit. Doing so would enable a justice to defeat the application, and at the same time to put the point beyond the reach of review, even on the facts which he may'assume’to know, or to have forgotten. . Here, it is true,-he states them, but not under his oath as a witness. That the defendant has a right to require.”

. In the case before tis, as we have seen, the justice simply pronounces the - defendant’s affidavit false ; that is not a .determination •of its sufficiency. •

I think the affidavit was sufficient, and that it was' the duty of the justice to transfer the case. The. fact that'the defendant, in his affidavit, asked that the ease should be dismissed instead of transferred is not material. Upon filing the proper affidavit the statute makes it the duty of the justice forthwith to transfer the trial and determination of the cause to another magistrate; and the fact that the defendant mistakenly asked for a dismissal instead of a transfer of the action, makes no difference as to the magistrate’s duty, nor does it cure the error in his proceeding in violation of the statute, and for that error the judgment should be reversed.

The judgment of the County Court and of tire Justice’s Court should be reversed, with costs to the appellant in both courts, together with the costs and disbursements of this appeal.

All concurred.

Judgment of the County Court and of the Justice’s Court reversed, with costs and disbursements to the appellant in both courts, together with the costs and disbursements of this appeal.  