
    Addison Smith and Ann Elizabeth Smith, Respondents, v. Robert H. Smith, Appellant.
    Third Department,
    June 24, 1909.
    Practice — appeal from Justice’s Court ^-return—pleading served after • judgment.
    The plaintiff in an action in a Justice’s Court is not entitled to have an amended complaint, which was served after judgment rendered, returned by the justice among the papers on appeal, except upon express stipulation of parties. Kellogg, J., dissented.
    Appeal by the defendant, Robert H. Smith, from an order of the County Court of Montgomery county, entered in the office of the clerk of said county on the 8th day of February, 1909, denying the defendant’s motion for an amended return.
    
      Charles B. Hane, for the appellant.
    
      H. M. Eldredge, for the respondents.
   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, for which it was claimed the plaintiffs were liable 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 jdaintiffs’ attorney stated that he might w’ant to put in an amended complaint. Ho 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 Cbunty 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 ten dollars costs and disbursements, and motion granted, with ten dollars costs.

All concurred, except Kellogg, J., dissenting.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  