
    Royce v. Gibbons.
    
      (Supreme Court, General Term, Third Department.
    
    November 20,1888.)
    Justices or the Peace—Appeal—1Trial de Novo.
    Where the answer in an action before a justice alleges a breach of contract by which defendant lost more than $50, but does not demand judgment, or set up a counter-claim, it will be treated as a defense merely, and defendant cannot avail himself of Code Civil Proc. N. Y. § 3068, authorizing a new trial in the county court, “where the amount of the judgment demanded by either party exceeds $50. ”
    Appeal from St. Lawrence county court.
    Action by Leslie S. Eoyce against Chauncey 0. Gibbons for wages. Plaintiff appeals from an order of the county court denying his motion to transfer this cause from the trial calendar to the law calendar of that court. The order denying the motion recites “that the cause is a proper one for trial in the county court, and that said cause remain upon that calendar for that purpose until regularly disposed of.”
    Argued before Learned, P, J., and Landon and Ingalls, JJ.
    
      John O. Keeler, for appellant. JET. D. Ellsworth, for respondent.
   Landon, J.

The action was tried in a justice’s court. The return of the justice states: “Plaintiff complained orally for work and labor performed for defendant, balance due him, $32.85, for which plaintiff demanded judgment and costs.” Defendant answered in writing as follows: “Defendant denies complaint; defendant* alleges that plaintiff hired for 7 months at $23 per month; worked but three, and quit without cause, and without leave of defendant; that defendant was obliged to hire another man in place of plaintiff, at an increased price of $16 per month; that defendant was damaged, in consequence of plaintiff’s leaving him, in the sum of $64.” It will be seen that the answer makes no demand for judgment. The plaintiff recovered $22.33 and costs. Section 3068, Code Civil Proc., provides that a new trial may be had in the county court “ where the amount of the judgment demanded by either party in his pleading exceeds fifty dollars.” The defendant might have demanded judgment exceeding $50, or he might have demanded that the damages established by him be set off against any amount which the plaintiff might establish, and that he have judgment for the balance, or he might allow his claim to remain as a defense to the plaintiff’s demand. Green v. Waite, 33 Hun, 191, holds, in a case more nearly like this than any other cited, that where matter which may constitute either a counter-claim or a defense is pleaded as a defense, without designating it either as a defense or a counter-claim, it will be treated as a defense merely. We think the rule a sensible one in cases of appeal from a justice’s court to the county court. The answer is equivocal upon the question presented. If the defendant had defeated the plaintiff’s recovery in the justice’s court, he could upon this answer, plausibly and probably successfully, insist that he had demanded no judgment at all. It is not asking too much to require him by his answer to take a definite position early enough to give his adversary the same right to a new trial in case of defeat that he now claims for himself in the like case. The order should be reversed, with $10 costs and printing disbursements, and the motion granted.

Learned, P. J., and Ingalls, J., concur.  