
    George Chatfield, App’lt, v. Charles Reynolds, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 12, 1890.)
    
    Justice’s court—Appeal—Amendment.
    An amendment of a notice of appeal to county court by inserting a demand for a new trial is authorized by § 3049 of the Code, where the case is one where a new trial could be demanded and involves only questions of fact and it appears that such demand was omitted by mistake and inadvertence.
    Appeal from order of county court permitting amendment of a notice of appeal.
    
      Smith Lent, for app’lt; Francis Larkin, Jr., for resp’t.
   Barnard, P. J.

This action was tried before a justice of the peace. The complaint demanded a judgment for $150. The plaintiff’s recovery was for $34.83. The defendant appealed, and the notice of appeal did not “ demand a new trial in the appellate court ” according to § 3068 of the Code. The county court permitted an amendment of the notice so as to demand a new trial in the appellate court. The amendment was authorized by § 3049 of the Code. The appeal was taken in good faith, and by it the action was removed to the county court. The case was one where a new trial could be demanded, and an inspection of the return shows that the question was one of fact only. The appellant’s attorney made an affidavit that the inserted clause was left out by mistake and inadvertence.

Section 3049 provides that an amendment may be made when the appeal is taken in good faith, and where any act necessary to perfect the appeal is omitted, supplying the omission.

The amendment was needed to complete the appeal for a new trial. The point is decided in McCarthy v. Crowley, 24 N. Y. State Rep., 815. The appeal in this case was for a new trial in the appellate court, where the appeal was addressed to a new trial upon the default before the justice. The notice of appeal was amended so as to ask the proper relief.

The order should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  