
    (57 Misc. Rep. 564.)
    CARTER v. BOYLE.
    (Saratoga County Court.
    January, 1908.)
    1. Justices of the Peace—Unverified Answer.
    In an action before a justice for a balance due on a contract and.for extra work, where the complaint was verified, plaintiff was, under Code Civ. Proc. § 2988, entitled to judgment, where defendant’s answer was an unverified general denial and counterclaim.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 333.]
    2. Witnesses—Cross-Examination.
    Where, in an action for a balance due on a written contract, the contract was excluded on defendant’s objection, it was error to permit defendant, on cross-examination of plaintiff’s witnesses, to question them as to the terms of the contract.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 931-948.]
    Appeal from Justice Court.
    Action by Charles H. Carter against Mary E. A. Boyle. Judgment for defendant before a justice, and plaintiff appeals. Reversed.
    John Scanlon, for appellant.
    Thomas E. Powers, for respondent.
   ROCKWOOD, J.

The plaintiff brought this action, serving a verified complaint, to recover a balance claimed to be due under a plumbing contract, together with a judgment for extra work, labor, and services. An unverified general denial, with a counterclaim for $100, was interposed by the defendant. At the time of the joinder of issue the plaintiff asked for judgment upon the ground that the defendant had failed to verify her answer. This was denied by the justice, who ruled that he would treat both pleadings as unverified. An exception was duly taken to this, and it is urged as one of the grounds requiring a reversal of the judgment.

The verification of pleadings in a Justice’s Court was for many years governed by' chapter 414, p. 562, of the Laws of 1881, section 2 of which provides:

“In case the defendant appears and answers in such action, his answer shall be in writing and shall be verified as above provided for the verification of a complaint.” •

And section 3:

“In case the defendant fails to answer said complaint as hereinbefore provided at the time of the return of said summons, he shall be deemed to have admitted the allegations of the complaint as true, and the court shall, upon filing the summons and complaint, with due proof of service thereof, enter judgment for the said plaintiff and against the defendant for the amount demanded in such complaint, with costs, without further proof.”

This statute has uniformly been construed to accord to the plaintiff the right to an immediate judgment in a proper case, where his complaint was verified, providing that a verified answer had not been served by the defendant. By chapter 291, p. 682, of the Laws of 1906, chapter 414, p. 562, of the Laws of 1881 was repealed, and subdivision 3 thereof was substantially incorporated in section 2988 of the Code of Civil Procedure. The words “shall * * * enter judgment,” in subdivision 3 of the old law, are changed to “judgment may be entered” in section 2988 of the Code.

It is not clear that it was the intention of the Legislature, in thus substituting the word “may” for “shall,” to leave the entry of judgment discretionary with the justice; and such reading of the present statute would, apparently, nullify the plain intent of the law. It must be, as it always has been since the enactment of the law of 1881, above quoted, that a plaintiff who serves a properly verified complaint in a Justice’s Court, in one of the cases provided for, is entitled tó judgment in case the defendant appears and serves an unverified answer. To leave the matter entirely discretionary with the justice would not only work confusion, but lead to a lack of uniformity and to an uncertainty in the practice which should be avoided. The plaintiff, having served a verified complaint in one of the cases specified, was entitled to judgment at the time of the supposed joinder of issue. There really was no issue, because the answer was unverified, and the state of the pleadings was such as to have required the justice to have rendered judgment for the plaintiff without further proof.

In addition to the foregoing, however, there are other errors in the record which call for a reversal of the judgment. The action was in part upon a written contract, which the plaintiff, upon the direct examination of his witnesses, sought to introduce in evidence. The contract was produced, signatures identified, and then offered in evidence by the plaintiff. Defendant’s counsel objected to it upon the ground that the whole contract was not before the court, that certain plans and specifications were a part of the contract, and that such supplemental papers must be produced with the contract, or their absence accounted for. This was clearly a proper objection, and the court sustained it, and thereupon dismissed the cause of action under the contract. Evidence was then taken as to the extra work. During the progress of this testimony defendant’s counsel, in his cross-examination of the architect who prepared the plans, asked:

“Q. What kind of a closet did the specifications require to be put in under the contract? A. Trojan. Q. Was the closet which was required under the contract installed? A. No. Q. Can you now tell what would have to be done to conform to the plans and specifications? A. The closet would have to be taken out, the floor would have to be changed, and the closet would have to be installed. * * * Q. You recall the plans and specifications? I ask you, further, do you remember under the contract of plans and specifications a provision that if anything was unsatisfactory Mr. Carter was to get 24 hours’ notice to take it out? AVas there such a provision there? A. Yes.”

It thus appears that, having caused the contract to be excluded upon the direct examination, the defendant still interrogated witnesses concerning its terms upon "cross-examination. The contract was in court, and was the best evidence of its contents; and, as it had not been introduced in evidence, no secondary testimony concerning its contents should have been given. This clearly operated to the prejudice of the plaintiff, as it put before the justice the witness’ idea of the contract and its terms, while the contract itself was kept from the record.

There were other errors in the admission or rejection of testimony, but they are not necessary to be considered in view of the foregoing conclusion. Excluding from the record the testimony erroneously received, and the judgment is contrary to and against the weight of the evidence, for which reason the same is reversed, and a new trial directed before Herbert R. Van Kleeck, Esq., justice of the peace of the town of Waterford, Saratoga county, N. Y., on January 31, 1908, at 10 o’clock a. m. of that day, or at such other time to which said case may be adjourned by said justice, with actual disbursements of the appeal, to be paid to the appellant by the respondent, to be taxed, if not agreed upon. Let an order be entered in accordance herewith

Judgment reversed, and new trial ordered.  