
    (133 App. Div. 457.)
    SMITH et al. v. SMITH.
    (Supreme Court, Appellate Division, Third Department.
    June 24, 1909.)
    Justices of the Peace (§ 164)—Appeal—Return—Amended Pleadings.
    An amended complaint, filed with a justice of the peace after the trial, cannot, in the absence of express stipulation of the parties, be included in the return on appeal to the County Court; and this irrespective of whether any other proof could be offered thereunder than under the original complaint.
    [Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 164.],
    Kellogg, J., dissenting.
    Appeal from Montgomery County'Court.
    Action in a justice’s court by Addison Smith and another against Robert H. Smith. Judgment for plaintiffs, and defendant appealed to the County Court, and thereafter moved for a corrected return. From an order denying the same, he appeals.
    Reversed, and motion granted.
    Argued before SMITH, P. J., and CHESTER, KELLOGG, COCH-RANE, and SEWELL, JJ.
    Charles B. Hane, for appellant.
    H. M. Eldredge, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am.* Digs. 1907 to date, & Rep’r Indexes-
    
   SMITH, P. J.

The action was brought in Justice’s Court. The plaintiffs and the defendant had made some agreement by which the plaintiffs were to take a farm and pay certain debts. There was a claim against the defendant of about $235, which it was claimed the plaintiffs were liable for under this agreement, and the plaintiffs were sued thereupon and made default: Judgment was obtained and execution has been issued. The plaintiffs now claim that part of this amount was a debt that was not properly for them to pay, but was the defendant’s debt, and therefore have sued the defendant to recover the same, and in Justice’s Court recovered a judgment of $125, together with costs. The defendant has appealed to- the County Court for a new trial.

In Justice’s Court the defendant put in an amended answer, and the plaintiffs’ attorney stated that he might want to .put in an amended complaint. No amended complaint, however, was then served, and after the judgment plaintiffs did file with the justice an amended complaint. This amended complaint has been returned by the justice to the County Court' as properly in the- case and part of the pleadings upon which the case must be there tried. The defendant has moved for a corrected return, in which he sets forth a letter from the justice stating that this amended complaint was received some days after the trial. From an order of the County Court denying the motion for an amended return this appeal is taken.

The motion should have been granted. If the plaintiffs had desired to amend their complaint, it should have been amended at the trial, either orally or in writing. The court cannot recognize amended pleadings filed after a trial, except upon the express stipulation of the parties. It may be that under the amended complaint no other proof could be offered than under the original complaint; but of this the court will not inquire. The defendant is entitled to have returned the pleadings upon which the case was tried in the court below, and the court will not stop to consider how far he may be prejudiced by spurious pleadings returned. The order should therefore be reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. All concur, except KELLOGG, J., who dissents.  