
    (33 Misc. Rep. 330.)
    BARNARD v. CLARK.
    (Oneida County Court.
    December, 1900.)
    1. Justices of the Peace—Pleading—Title to Realty Involved.
    2 Rev. St. (2d Ed.) p. 168, § 59, expressly limiting a plea showing that title of lands would come in question to the time of joining issue in an action in a justice court, not being included in Code Civ. Proc. §§ 2951, 2952, relating thereto, that defense may be pleaded at any time before trial.
    2. Same—Amendment.
    Where substantial justice requires, it is mandatory on a justice of the peace to allow the amendment of a pleading.
    3. Same—Undertaking by Defendant—Notice of Surety’s Justification.
    Where a justice exercises the right to require a surety, on an undertaking by defendant under Code Civ. Proc. § 2952, to appear personally and justify before him, he should inform defendant thereof, so that he may be apprised of what is necessary for him to do to cure any defect therein.
    4. Same—Objection to Undertaking—Requisites.
    An objection to an undertaking given as required by Code Civ. Proc. § 2952, in connection with an answer by defendant to an action in the justice court, showing that title to realty will come in question, should point out the specific defect therein.
    5 Trespass—Cutting Timber—Excessive Verdict.
    Where, in trespass for cutting trees, plaintiff proved that defendant cut 29 trees, worth from 55 to 60 cents apiece, a verdict for $30 was excessive.
    No claim was made in the complaint for treble damages, and on joining issue defendant pleaded a general denial. On the adjourned day he tendered an amended answer, alleging title in a third person, and authority by him to cut, and that the title to real estate would therefore come in question. In connection therewith he tendered an undertaking, duly executed, excepting that the surety justified in the sum of $200, the amount of liability thereon. Objection was made to the amendment on the ground that the title to realty should be pleaded at the joining of issue, and objection was also made to the sufficiency of the undertaking and the surety. The objections being sustained, defendant withdrew, and thereupon the jury which had previously been demanded and summoned was impaneled, and rendered a verdict in plaintiff’s favor on the evidence introduced by him. From the judgment entered thereon the appeal is taken.
    Appeal from justice court.
    Trespass in justice court by Charles M. Barnard against Morgan Clark for cutting and converting timber. From a justice’s judgment in favor of plaintiff, defendant appeals.
    Reversed.
    H. R. Hadley, for appellant.
    C. D. Prescott, for respondent.
   DUNMORE, J.

The first point presented on this appeal is whether a defendant can interpose an answer alleging title to real property before a justice after issue joined, and on an adjourned day. The statute upon that' subject before the Code was as follows: "In every action where the title to lands shall in any wise come in question, the defendant at the time when he is required to join issue, and not after, may plead specially any plea showing that the title of lands will come in question,” etc. 2 Rev. St. (2d Ed.) p. 168, § 59. The next section provided for tendering a bond, etc. The statute expressly limited the right of a defendant to plead title to real estate to the time issue was joined. Code Civ. Proc. §§ 2951, 2952, contain no such limitation. It is evident that the change in the statute was made for the purpose of allowing a greater liberality in the amendment of pleadings in justice’s court in the promotion of substantial justice. Parties often appear without counsel before the justice on the return of the summons. This is especially true in remote country districts, where the attendance of counsel could not be procured without great inconvenience and expense. If upon the adjourned day the defendant should be precluded from pleading the only defense he has to the action, it would oftentimes result in great injustice. It is clear to me that the change was made in the statute so that whatever defense a defendant has may be pleaded at any time before trial. This is the construction heretofore put upon the statute as amended. Weeks v. Stroble, 36 How. Prac. 123; Hinds v. Page, 6 Abb. Prac. (N. S.) 58; Smith v. Mitten, 13 How. Prac. 325. Where substantial justice requires, it is mandatory upon a justice to allow an amendment to a pleading. Thedford v. Reade, 28 Misc. Rep. 563, 59 N. Y. Supp. 537; Milch v. Insurance Co., 13 Misc. Rep. 231, 34 N. Y. Supp. 15. The defendant, therefore, had the right to have his pleadings amended as proposed upon the adjourned day. The amendment, however, would have been unavailable unless defendant gave an undertaking as required by section 2952 of the Code of Civil Procedure. Section 2955 of that Code provides that, if the undertaking is not delivered to the justice,. he has jurisdiction of the action, and must proceed therein, and the defendant is precluded in his defense from drawing the title in question.

The respondent' contends that the undertaking failed to comply with section 812 of the Code of Civil Procedure, in that the surety justified only in the sum of $200, the amount of the undertaking, whereas he should have justified in twice the amount. That section provides that the affidavit of the surety must, in--addition to the other requirements, state that the surety is worth “twice the sum specified in the undertaking,” etc. Section 2952 does not require any sum to be specified in the undertaking, but provides that, if the defendant fails to comply with the undertaking, the sureties are liable thereon to an amount not exceeding $200. Eo sum was specified in the undertaking. The justice had the right to require the surety to appear personally and justify before him. Harding v. Ellston (Co. Ct.) 13 N. Y. Supp. 550; Shaver v. Eldred (Sup.) 15 N. Y. Supp. 930. The justice did not require this, and if he required such a justification we think it was his duty to so inform the defendant so that defendant might be apprised of what it was necessary for him to do to cure any defect in the undertaking.

Plaintiff’s objection to the undertaking was general, and not specific, as has been required in many cases. The objection should have pointed out the specific defect. Snape v. Gilbert, 13 Hun, 494; Rude v. Crandall, 11 Civ. Proc. R. 11; Bank v. Judson, 10 How. Prac. 133; Bank v. Danforth, 7 How. Prac. 264. The justice retained the undertaking. In Harding v. Ellston, 19 Civ. Proc. R. 252, 13 N. Y. Supp. 549, the court said: “I think the delivery of the undertaking to the justice and his retention of it were sufficient to oust him of jurisdiction. If not sufficient, his refusal to approve the undertaking, without some reason therefor being given, was-wholly without authority.” In that case, however, the undertaking was concededly in due form.

Whether the undertaking was sufficient, and, if sufficient, whether the plaintiff waived the defect by not pointing out the specific defect, are questions which it is unnecessary' for me to determine-upon this appeal, for the reason that the judgment must be reversed upon other grounds.

Upon the trial plaintiff proved that defendant cut 29 trees, worth-from 55 cents to 60 cents apiece. The damage as proven did not exceed $17.40, but the verdict was for $30. I think, therefore, that the verdict was excessive, and the judgment must for that reason be reversed.

Judgment reversed, with cost's.  