
    BARTLETT v. MUDGETT.
    
      N. Y. Supreme Court, General Term, Fifth Department;
    
    April, 1894.
    1. Justices' courts ; jurisdiction.} In determining whether a matter of account in a justice’s court exceeds §400, so as to deprive the justice of jurisdiction under Code Civ. Pro., § 2863, subd. 4, credits allowed by either party to the other in his pleading should not be included.
    2. The same.} A justice of the peace has no power to dismiss an action involving a matter of account, because the claim set up in the answer makes the sum total of the amounts in dispute more than $400; it must appear to him from the evidence that the amounts involved exceed his jurisdiction.
    3. The same ; appeal.] Where a justice of the peace erroneously dismissed an action upon the pleadings, without taking any evidence, upon the ground that a matter of account was involved exceeding $400,—held, that as in such a case want of jurisdiction must be shown by evidence, plaintiff could appeal to the county court for a new trial, and was not confined to an appeal upon a question of law only.
    The plaintiff, Daniel E. Bartlett, brought his action •against James W. Mudgett in the justice’s court in Cattaraugus County, and claimed in his complaint as his first cause of action that the defendant was indebted to him for work and services in pressing into bales 280 tons of hay, at the agreed price of $1.75 a ton, and that there became due to him therefor $490 ; that the defendant had not paid any part thereof, except the sum of $300, and that there remained due on account thereof the sum of $190. For his second cause of action he alleged that the defendant was indebted to him in the sum of $39.02 for goods, wares and merchandise sold and delivered to the defendant, and that the defendant had paid thereon the sum of $40, thereby slightly overpaying the same. He demanded judgment against the defendant for $185.04, with interest thereon from December 1, 1892.
    The defendant interposed an answer admitting that the plaintiff pressed a quantity of hay for him at the price stated in the complaint, but that the amount was less-than two hundred and eighty tons, and that he had paid the plaintiff, to apply thereon, divers sums ■ of money, amounting in all to $340, and, for a further answer, alleged' that the plaintiff was justly indebted to him for goods-furnished, and upon mutual dealings between the parties, in the sum of $110, which was pleaded as a counterclaim, and demanded judgment against the plaintiff for $110.. The issue being thus joined, the defendant thereupon moved for a discontinuance of the action on the ground that it appeared from the pleadings that the sum total of the accounts and demands of both parties in dispute exceeded the sum of $400, and the justice, against the objections of the plaintiff, granted the motion and dismissed the case, and entered judgment against the plaintiff for costs. The plaintiff served a notice of appeal from the justice’s judgment to the county court of Cattaraugus. County, and in said notice demanded a new trial in that court. The defendant thereupon moved the county court for an order dismissing the appeal on the ground “that the justice before whom the aption was commenced had no jurisdiction, and could not take cognizance of the same for the reason, that the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds $400.” The motion was granted and am order entered dismissing the appeal.
    HON. O. S. VREELAND, County Judge, on hearing the motion to dismiss the appeal, said:
    “ The correctness of the justice’s ruling upon this proposition [want of jurisdiction] is not here for consideration, for the plain reason that no appeal has been taken from it, the appeal being for a new trial and not upon question of law (Kirk v. Blashfield, 6 Supm. Ct. (T. & C.) 509).
    “ The question presented for decision, then, is, can a new trial be had in the county court in a case where the justice before whom the action was begun, has dismissed the same for lack of jurisdiction ?
    “ My attention is not called to any reported case where the question has been squarely up.
    “ I assume that it will be conceded that, if the complaint before the justice had been to recover damages for •assault and battery, or libel, and the justice had dismissed the action for want of jurisdiction, as he must have done, then no appeal for a new trial would lie.
    “ I am able to see no distinction between such a supposed case and the one at hand.
    “ Here, it is true, the justice had jurisdiction over the respective claims of the parties, provided they did not exceed a certain amount; but in case such claims did exceed the specified amount, then, as it seems to me, he had no more right to try the action, and the plaintiff had no more right to a new trial in this court, than he would have in •case of the causes of action above referred to.
    “ If this reasoning is not correct-, then a plaintiff may ■begin an action before a justice involving any sum as large as a thousand dollars, or even beyond that amount, unless the constitutional limit as to the jurisdiction of the •county court shall stand in the way ; submit to a dismissal ; take an appeal for a new trial; and in this manner try a cause, over which the court where it was begun con-cededly had no authority.
    “ The decision in Cromwell v. Comstock (12 Hun, 293). is distinguishable from this case, for the reason that there the question was not raised before the justice, but first come up after a new trial in the county court, on appeal from an order of that court granting a new trial.
    “ The contention of plaintiff’s counsel that the service of the notice of appeal was the beginning of a new action, is not tenable. The notice of appeal is in a sense ‘ process,’ to be sure, but not such process as to entitle plaintiff to try under it a new action ” (Gillingham v. Jenkins, 40 Hun, 594).
    The appeal was accordingly dismissed with costs to-abide event.
    Plaintiff appealed to the Supreme Court.
    
      E. D. Northrup, for appellant;
    cited Shaw v. Roberts, 14 N. Y. Supp. 579; Powers v. Gross, 66 N. Y. 646; Bradner v. Howard, 75 N. Y. 417.
    
      G. M. Rider, for respondent.
   Lewis, J. [after stating the facts.]

The justice unquestionably erred in dismissing the action, as it will be seen by an examination of the pleadings that the sum total of the accounts of both parties in dispute did not exceed $400; they, in fact, amounted to just $295.04. The justice had no authority to dismiss-the action until it was made to appear to him by proof that the amounts in dispute exceeded his jurisdiction.

It is provided by subdivision 4 of § 2863 of the Code of Civil Procedure, that “where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds $400.00,” the justice cannot take cognizance of the action. He is not ousted of jurisdiction, because the amount claimed in the pleadings may exceed that amount. If that were the case the defendant in every case could oust the justice of jurisdiction by setting up in his answer a claim for more than $400, no matter how fictitious the claim might be. The Code requires, before he shall dismiss the action, that he-shall be satisfied by evidence (Parker v. Eaton, 25 Barb. 122; Glackin v. Zeller, 52 Id. 147; Bailey v. Stone, 41 How. Pr. 349). In the absence of any proof in the case, the defendant’s counsel succeeded in inducing the justice to dismiss the action, solely upon what he claimed appeared upon the face of the pleadings, and, as we have seen,-the pleadings failed to show that the amount involved was beyond the jurisdiction of the justice.

The defendant’s counsel contends that the justice, having rendered a judgment of discontinuance, it is conclusive upon the questipn of the amount involved until it is reversed, and that the only manner provided by the Code for reviewing it is by appeal upon questions of law only. Whether he is right in this contention depends upon the construction which shall be given to provisions of the Code. Section 2950 provides, that “ where, upon the trial of an action, the sum total of the accounts of both parties proved to the satisfaction of the justice exceeds $400.00, judgment of discontinuance must be rendered against the plaintiff, with costs.”

Section 3068 provides, “ where an issue of fact or an issue of law was joined before the justice, and the sum for which judgment was demanded by either party in his pleadings exceeds $50.00 . . . the appellant may, in his notice of appeal, demand a new trial in the appellate court, and thereupon he is entitled thereto.” Here, as we have seen, each party did demand judgment for a sum exceeding fifty dollars, so that the case falls within the letter of this section. If a new trial is not demanded in the notice 'of appeal, then the case is reviewed upon questions of law only. But if a new trial be demanded, then all questions of law and fact are before the appellate court for consideration, and we see no good reason why any embarrassment should arise upon a new trial in the county court in this case, as it will be quite apparent when the trial comes on from an inspection of the pleadings that the justice, in fact, had jurisdiction of the action.

Had the justice proceeded with the trial and decided upon conflicting evidence that the amount involved did not exceed the limit of his jurisdiction, the defendant unquestionably would have had the right to appeal to the county court and there try the qpestion over again. If, as contended by defendant’s counsel, the justice’s judgment can only be reviewed upon an appeal upon questions of law, it follows that there must be in this case four hearings before the litigation is ended, two in the justice’s court and two in the county court. There does not seem to be any occasion for pursuing such a course. The question here presented should not be confounded with a civil action in a justice’s court to recover damages for an assault and battery, libel or slander, for in that class of actions the justice has no jurisdiction of the subject-matter. Here he had jurisdiction until it was proven upon the trial that the accounts in dispute exceeded the limit mentioned. It does not, therefore, follow because a new trial can be had in the appellate court in this case that a new trial could be had in the other class of actions. In the one case the question of jurisdiction depends, as we have seen, upon the evidence. Not so in the other cases. We are not referred to any case where the precise question here presented has been adjudicated,

■v In Crannell v. Comstock (12 Hun, 293), the action was commenced in the justice’s court, the plaintiff’s complaint was for work and materials and the amount claimed by him was $115.50. The defendant pleaded a set-off for goods sold and delivered to the plaintiff to the value of $3,000, for which sum he claimed judgment. . Both parties introduced evidence before the justice in support of their respective claims; the defendant recovered a verdict for $43.65.

. An appeal was taken to the county court. for a new trial, and the respondent’s counsel, in that court, raised the question as to the jurisdiction of the justice because the total of the accounts exceeded $400. It was held, on an appeal to this court, that the county court had nothing to do with the question whether the justice erred in holding that he had jurisdiction; that the appeal, not being upon questions of law, did not bring up the testimony taken before the justice, and that the county court had no means of determining whether the accounts proved before the justice exceeded $400, and, further, that the appeal brought up the issues of fact joined in the court below to be tried anew in the county court, and that the jurisdiction -of that court, for all purposes of the trial and judgment, was the same as if the action had been commenced in that ■court originally. The respondent’s counsel claims that this is not an authority against him for the reason that the question of jurisdiction was not raised in that case in the justice’s court, and for that reason cannot be considered in the appellate court. There is nothing in this -contention, for if the justice did not have jurisdiction the consent of the parties would not have given it to him (Oakley v. Aspinwall, 3 N. Y. 547, 552; Clyde & Rose Plank Road Company v. Parker, 22 Barb. 323).

The case of Kirk v. Blashfield (6 Supm. Ct., T. & C., 509) is not an authority to the contrary. There the justice dismissed the action upon the same ground as in the case at bar, but no appeal was taken from his judgment. The plaintiff commenced a new action in the supreme' court, and recovering less than fifty dollars, he demanded and was allowed full costs, the' court holding that the justice’s judgment, not having been reversed, was conclusive upon the question of the jurisdiction of the parties.

Wc think that the county court was in error in granting the order appealed from ; it should be reversed, with .$10 costs and disbursements.

Dwight, P. J., Haight and Bradley, JJ., concurred.  