
    Armstrong v. Sanford.
    
      (Supreme Court, General Term, Fifth Department.
    
    June 2, 1891.)
    County Court—Power to Rehear—Appeal from Justice.
    Where the county court, on appeal from a justice of the peace, reverses the judgment of the justice, excluding evidence offered by defendant under the answer, it cannot afterwards rehear the case on affidavits that such answer and offer of evidence were sham, and reverse its former judgment, and affirm the judgment of the justice.
    Appeal from Niagara county court.
    Action by William Armstrong against Harvey Sanford. From a judgment setting aside a previous decision and judgment of the court, and affirming a judgment of a justice of the peace, defendant appeals.
    Argued before Dwight, P. J., and Macomber, J.
    
      C. W. Johnson, (Adalbert Moot, of counsel,) for appellant. George Wing, for respondent.
   Macomber, J.

This action was originally brought before a justice of the peace to recover the sum of 75 cents, being the amount of 3 trips, at 25 cents each, taken by the defendant in a vehicle owned by the plaintiff, who claimed to be a common carrier between the railroad station on the Borne, Watertown & Ogdensburg Bailroad in Lewiston and the village of Lewiston, in Niagara county. The answer consists of a general denial, and an allegation to the effect that the defendant “brought a cause of action against this plaintiff to recover damages upon or for breach of a contract; that this plaintiff then neglected to interpose any counter-claim, and no counter-claim was in fact pleaded to said cause of action.” Upon the trial, proof was offered to the effect that in the month of July, 1888, a year after the alleged indebtedness accrued to the plaintiff, a summons was issued in favor of this defendant against this plaintiff, and that the same was served; but, under objection made by the plaintiff’s counsel, each proposition was excluded, and the offer of proof seems to have gone no further. Whether this answer so made, and such offer of proof, would justify the county court in reversing the judgment, is not before us; for, upon appeal by the defendant to that tribunal, such judgment was reversed. Upon a rehearing, which appears to have been had upon affidavits tending to show that the answer and offer of evidence in the justice’s court was not sincere, but a sham, the learned county judge has reversed bis former judgment, and affirmed the judgment of the justice of the peace. In our opinion, the county judge had no power, in disposing of the questions before him, to hear and act upon affidavits explaining away and defeating the purpose for which the evidence before the justice of the peace was offered. Accordingly, the argument addressed to us by the learned counsel for the respondent, to the effect that the answer and the proofs offered thereunder before the magistrate were not competent, cannot be taken into the account. Had the present respondent appealed from the original judgment of the county court, reversing the determination of the justice of the peace, this argument would be entitled to much consideration, and would require an expression of our views thereon; but at the present time we do not deem it opportune, and therefore content ourselves with determining the question solely as to the power of the county judge, having once reversed the justice of the peace by a judgment duly entered in the county court, to open the same upon affidavits relating to the legal questions involved, and denying the existence of that power. The judgment appealed from should be reversed, but without prejudice to any appeal which the plaintiff may prosecute from the original judgment of the county court, provided the same may yet be timely taken.  