
    (82 Misc. Rep. 362.)
    KING PAINT CO. v. LANG.
    (Nassau County Court.
    October, 1913.)
    1. Justices or the Peace (§ 189)—Appeal—Reversal.
    Where, in an action in justice’s court, defendant admits owing $24.60, and pleads a counterclaim for $15, and judgment is rendered for defendant for $15, the county court cannot render a judgment under Code Civ. Proc. § 3063, authorizing judgment on appeal without regard to technicalities, but must reverse the case.
    [Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 727-733; Dec. Dig. § 189.*]
    
      2. Justices of the Peace (§ 189)—Appeal—Reversal—New Trial.
    Under Laws 1900, c. 553, providing that, where a judgment is contrary or against the weight of the evidence, the appellate court may order a new trial, the county court will order a new trial before the justice in a case wherein judgment has been rendered in justice’s court for defendant after he admitted an indebtedness to plaintiff greater than his counterclaim.
    [Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 727-733; Dec. Dig. § 189.*]
    Appeal from Justice Court.
    Action by the King Paint Company against Henry T. Lang. From judgment for defendant, plaintiff appeals.
    Reversed, and new trial ordered.
    . Lincoln B. Haskin, of Hempstead, for appellant.
    Stephen J. Marsh, of Hempstead, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   NIEMANN, J.

The plaintiff sued to recover $39.60 for paint sold and delivered. The defendant admitted that he purchased goods amounting to said sum, but set up a counterclaim of $15 for the expense of putting on a third coat of paint, which he claimed was made necessary by a defect in the quality of some of the paint sold and delivered to him by the plaintiff. Notwithstanding the defendant’s admission of a clear indebtedness to the plaintiff in the sum of $24.60, the jury rendered a verdict of $15 for the defendant. The jury could not in any event, in view of the admission of the defendant that there was due to the plaintiff said sum of $24.60, render a verdict for any less amount even if the counterclaim were allowed in full. It is conceded by both sides that this judgment must be set aside; but.questions have been raised by counsel for the parties as to the manner in which the matter should be disposed of upon this appeal.

The learned counsel for the respondent urges that, under the provisions of section 3063 of the Code, which directs that:

“The appellate Court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits”

—and that it may “modify” the judgment of the justice, this court has power to render the judgment that should have been rendered in the court below, which he claims should be a judgment of $24.60 in favor of the plaintiff—that is, allowing the plaintiff’s claim less the defendant’s counterclaim. But such a course cannot be pursued. The plaintiff insisted that he was entitled to recover the full amount claimed by him, and disputed the right of the defendant to recover on the counterclaim, so that there were and are questions of fact to be determined. This court, being a court of review, must determine the case upon the record below. It can make no findings of fact where the damages are unliquidated; the jury being the only tribunal by whom the amount of damages could be fixed. Wears v. Johnson, 151 App. Div. 770, 772, 136 N. Y. Supp. 316; Sour wine v. Truscott, 25 Hun, 67. Even if the damages were liquidated this court would have no power to render the judgment that should have been rendered in the court below; the power of the county court to modify the judgment of a justice’s court upon appeal is limited to reducing in extent or degree the judgment rendered in the court below, and this power does not authorize it to substitute a judgment on appeal for the one rendered in the court below—that is, one judgment for another wholly different. Pearce v. Knapp, 71 Misc. Rep. 324, 127 N. Y. Supp. 1100. A reversal is imperative; but the learned counsel for the appellant insists that the reversal must be absolute, and that the court is without power to order a new trial. This would be so if the reversal were upon questions of law only. Trubenback v. Nelson, 73 Misc. Rep. 466, 471, 133 N. Y. Supp. 388, and cases there cited.

Before the amendment to section 3063 the county court upon an appeal from a judgment of a justice of the peace was limited, even in a case where the judgment was contrary to or against the weight of the evidence, to an affirmance or reversal of the judgment, and could not order a new trial. But by the amendment of said section, which became effective September 1, 1900 (Laws of 1900, c. 553), the following words, placed in italics, were inserted:

“ * * * And where the judgment is contrary to or against the weight of the evidence, the appellate” court may, upon, its reversal oí a judgment, order a new trial, etc.

The verdict rendered by the jury in this case is “contrary to” the evidence, and must be reversed. The reversal is not for an error of law, but is based solely upon the erroneous finding of fact made by the jury. The case is brought within the remedial provision of the above amendment which gives the court power to order a new trial. Hartmann v. Hoffman, 76 App. Div. 449, 78 N. Y. Supp. 796; Markel v. Gummer, 84 App. Div. 634, 82 N. Y. Supp. 1107; Murtagh v. Dempsey, 85 App. Div. 204, 83 N. Y. Supp. 296; Liedtke v. Meyer, 137 App. Div. 74, 122 N. Y. Supp. 95; Brown v. Sullivan, 155 App. Div. 875, 139 N. Y. Supp. 555; Bentley v. Ard, 69 Misc. Rep. 562, 125 N. Y. Supp. 735. Such a disposition- would be in harmony with the principles of justice as it would afford the parties an opportunity to present their evidence to another jury and to obtain a finding in accordance with the facts proved. The judgment appealed from must be reversed, with costs to the appellant, and a new trial ordered before the same justice to be held on the 11th day of November, 1913, at the courtroom in the town hall in the village of Hempstead, Nassau county, N. Y.

Judgment reversed, with costs, and new trial ordered.  