
    Dudley v. Brinckerhoff.
    
      (Supreme Court, General Term, Second Department.
    
    May 14, 1888.)
    Appeal—Prom Inferior Courts—New Trial—Amount in Controversy.
    Where defendant, in a justice’s court, pleads a set-off, and demands judgment for §55, though his bill of items is only for §50, he is entitled to a new trial, on appeal to the county court, under Code Civil Proc. § 3068, which provides that, where the sum for which judgment was demanded by either party in his pleadings exceeds §50, the appellant shall be entitled to a new trial. •
    Appeal from Dutchess county court; Daniel W. Guernsey, Judge.
    This action was brought in justice’s court by Alexander H. Dudley against Matthew V. B. Brinckerhoff. On trial plaintiff recovered judgment for $48.50, the amount of his claim, and defendant appealed to the county court, and in his appeal demanded a new trial. Thereupon plaintiff moved to dismiss the appeal, because the judgment demanded by either party in his pleadings did not exceed the sum of $50. The motion was denied, and on trial, at the close of plaintiff’s case, it was dismissed because he had not proved his cause of action. Plaintiff thereupon appealed from this judgment, and the order refusing to dismiss the appeal, to the general term, and the court decided that defendant was not entitled to a new trial, because it did not appear from the record that either party demanded a judgment exceeding $50, though defendant’s bill of items of set-off was for $50. Defendant then obtained from the county court an order for a new trial, based on the following amended return of the justice: “Defendant’s answer. Defendant denied the complaint, and stated that he had a counter-claim against plaintiff for goods and merchandise sold and delivered to plaintiff, of the value of fifty-five dollars, for which he demands judgment.” Prom this order the plaintiff appealed. Code Civil Proc. § 3068, relative to appeals from justices’ courts, provides that, “where the sum for which judgment was demanded by either party in his pleadings shall exceed fifty dollars, ” the appellant is entitled to a new trial.
    
      H. H. Hustis, for appellant. Walter C. Anthony, for respondent.
   Dykman, J.

The amended return of the justice obviated the difficulty we found in the case when it was here before, and the appellant was entitled to a new trial in the county court, because the amount claimed in the pleading exceeded $50. It now appears that the defendant demanded judgment for the sum of $55. The cause was tried to a finish of the plaintiff’s case in the county court, and then his complaint was dismissed.

Upon a full examination, we think the testimony insufficient to charge the defendant with the price of the wheat, and the judgment should therefore be affirmed, with costs. The order appealed from should also be affirmed, with $10 costs, and disbursements.  