
    Leslie S. Royce, App’lt, v. Chauncey C. Gibbons, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 20, 1888.)
    
    County count—Justice of the peace—Appeal—Code Civ. Pro., § 3068— When party cannot avail himself of section authorizing new TRIAL.
    When in an action before a justice'of the peace, a defendant alleges in his answer that he was damaged more than $50, hut does not demand payment or set up a counter-claim, it will he treated as a defense merely, and defendant cannot avail himself of the provisions of s.-ction 3068, authorizing a new trial in the county court, where the amount of the judgment demanded hy either party exceeds $50
    Appeal from an order of the St. Lawrence county court, denying plaintiff’s 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.”
    
      John C. Keeler, for app’lt; H. D. Ellsworth, for resp’t.
   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 plaint-tiff hired for seven months at twenty-three dollars 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 sixteen dollars per month; that defendant was damaged in consequence of plaintiff’s leaving him in the sum of sixty-four dollars.”

It will be seen that the answer made no demand for judgment. The plaintiff recovered $22.33 and costs. Section 3068 Code' Civil Procedure 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 fifty dollars, 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 ten dollars costs and printing disbursements, and the motion granted.

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