
    William Moore, Overseer of the Poor of the Town of Parma, Resp’t, v. David Trimmer, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1889.)
    
    1. Practice—Sham pleading—Hew trial—County court.
    An improper or sham pleading in an action before a justice of the peace cannot be made the basis of a demand for a new trial in the appellate court.
    2. Same—Appeal—Power oe court to order further return—Code Civ. Pro., §§ 3068, 501.
    Where a defendant, on an appeal from the judgment of a justice’s court, claims that he is entitled to a new trial with a jury in the county court, under provisions of Code of Civil Procedure, section 3068, and the court is satisfied that if the case came up for trial the evidence substantiating the defense would necessarily be excluded, such defense not conforming-to the provisions of'the Code of Civil Procedure relating thereto, he is not compelled to await the result of the trial, but has the power to order a further return by the justice, pi esenting all the facts .disclosed before-him, so that the appeal can be determined on questions of law alone.
    Appeal from an order of the Monroe county court, striking this and four other cases off the calendar of a trial court appointed to be held with a jury, and ordering the cases to be heard before the judge alone, on questions of law, and directing the justice of the peace to file an amended, return, giving all the evidence taken by him on the trial.
    
      Turk & Barnum, for app’lt; W. Martin Jones, for resp’t.
   Macomber, J.

The action was brought before a justice of the peace, in the town of Parma, to recover the statutory penalty of fifty dollars for the violation of the excise-law.

Among the defenses set up by the defendant was a counter-claim,' setting forth an alleged contract with the plaintiff to the effect that the_ plaintiff, as overseer of the poor, was, and still is, justly indebted to the defendant in the sum of $100, for moneys advanced by the defendant to the plaintiff, as overseer of the poor, on an agreement that the same was to be refunded to the defendant, if at any time any action should be brought against the defendant by the plaintiff to recover a penalty for selling liquor contrary to law.

By reason of this allegation in the answer, though no evidence to support the same was given before the justice of the peace, and a judgment was accordingly given against the defendant for the penalty and costs, it is claimed, that the defendant is entitled to a new trial in the county court, with a jury, under section 3068 of the Code of Civil Procedure, which provides that when an issue of fact or an issue of law is joined before the justice, and the sum for which judgment is demanded, by either party exceeds fifty dollars, a new trial shall be had in the county court if asked for.

If the answer of the defendant before the justice of the peace was proper and serious, and not manifestly a sham, the contention of the counsel for the appellant would prevail. An improper or sham pleading before a justice of the peace cannot be made the basis of a demand for a new trial in the appellate court. It is evident, that if this case had come up for trial in the county court with a jury, the evidence attempted to be given of this pretended counterclaim would have been necessarily excluded, for the reason that it does not come within section 501 of the Code of Civil Procedure. Denniston v. Trimmer, 27 Hun, 393.

The county judge, knowing that this would be the inevitable result of a new trial of the case, was not compelled to await such a denouement, but had clearly the power to order a further return by the justice, presenting all of the facts disclosed before him, so that the appeal could be determined upon questions of law alone.

The order of the county court should be affirmed, with ten dollars costs in each case and disbursements in one.

All concur.  