
    Oscar W. Vallen, Resp’t, v. James H. McGuire, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    Justices’ court—Appear from judgment of, on error of fact cannot BE BASED ON AFFIDAVITS WHEN. EVIDENCE WITHIN KNOWLEDGE OF justice—Code Civ. Pro., § 3057
    Code Civil Procedure, section 3057, provides that where an appeal from the judgment of a justices’ court is founded upon an error in fact in the proceedings not affecting the merits of the action, and not within the knowledge of the justice, the county court may determine the matter upon affidavits, or in its discretion upon the examination of witnesses, or in both methods. Held, that there was no authority for an appeal from the judgment of a justices’ court, based upon affidavits where the errors of iact were within the knowledge of the justice; that in such case the return of the justice was indispensable.
    -* Appeal from a judgment of the county court of Cattaraugus county, reversing the judgment of a justices’ court.
    
      G. V. Reynolds, for app’lt; Coxe & Whipple, for resp’t.
   Dwight, J.

The record does not show on what ground this judgment was reversed by the county court. There seems to have been a fair conflict of evidence on the question both of the amount and the value of the work done, for which the plaintiff brought his action. In the points submitted by the respondent here, the statement is made that the appellant below “appealed to the county court assigning errors of fact” (although the notice of appeal is silent in respect to the grounds of error); and the record contains affidavits presented to the county court, by the appellant below, with a notice to the effect that such affidavits would be read on the argument of .the appeal in the county court, to show errors of fact committed by the justices’ court. These affidavits relate to alleged misconduct of the justice after the case was submitted to him for decisión; and it is chiefly upon the effect of these affidavits that the respondent here seems to rely.to sustain the action of the county court in reversing the judgment of the justice.

The practice seems to be without sanction of law. The only case in which affidavits may be used on appeal from a justice’s judgment are those prescribed by sections 3056, 3057 and 3064 of the Code of Civil Procedure. The first of these sections provides for the substitution of affidavits in place of a return, when the justice, by death, lunacy or a removal from the state, becomes unable to make a return. Section 3064 applies only to the case of an appeal taken by a defendant who failed to appear before the justice. Section 3057 reads: Where an appeal is founded upon an error of fact in the proceedings not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the matter upon affidavits, or in its discretion upon the examination of witnesses, or in both methods.” It must have been in supposed conformity to the provision of the section last quoted, that the plaintiff, appellant below, read affidavits on the hearing of his appeal.

But the case was clearly not within the scope of those provisions. The matters alleged in the affidavits, if they existed, were wholly within the knowledge of the justice, and were therefore not subject to presentation by affidavit. If they constituted ground of error at all, it was only by means of a return that they could be brought to the knowledge of the appellate court.

All the allegations of the matters referred to were fully met by answering affidavits, and it is difficult to see how the county court could have held, them established by a preponderance of proof.

But there was no authority for the employment of affidavits in the case; and, as the judgment of reversal was apparently based upon the affidavits, it cannot be sustained.

The judgment of the county court must be reversed and that of the justice affirmed.

All concur.  