
    Vallen v. McGuire.
    
      (Supreme Court, General Term, Fifth Department.
    
    October, 1888.)
    Appeals—From Interior Courts—Hearing—Affidavits.
    Code Civil Proc. N. Y. § 3057, relating to appeals from justices’ courts, which provides that “where an appeal is founded upon an error of fact in the proceedings-not affecting the merits of the action, and not within the knowledge of the justice, the court .may determine the matter upon affidavits, ” etc., does not authorize the-use of affidavits on appeal to show alleged misconduct of the justice after the case was submitted to him for decision; inasmuch as the matters alleged in such affidavits, if they existed, must have been wholly within the knowledge of the justice.
    Appeal from Cattaraugus county court.
    This is an appeal by James H. McGuire from a judgment in the county court reversing the j udgment of a justice’s court, in an action brought against appellant by Oscar W. Vallen.
    
      C. V. Reynolds, for appellant. Coxe & Whipple, for respondent.
   Dwight, J.

The record does not show' on what ground this judgment was reversed by the county court. There seems to have been a fair conflict of evidence on the'question both of the amount and the value of the work done for which the plaintiff brought his action. In the points submitted by the respondent here, the statement'is made that the appellant below “appealed to the county court assigning errors of fact,” (although the notice of appeal is silent in respect to the grounds of error;) and the record-contains affidavits presented to the county court by the appellant below, with a notice to the effect that such affidavits would be read on the argument of the appeal in the county court, to show errors of fact comrditted by the justice’s court. These affidavits relate to the alleged misconduct of the justice after the case was submitted to him for decision; and it is chiefly upon the-effect of these affidavits that the respondent here seems to rely to sustain the action of the county court in reversing the judgment of the justice. The practice-seems to be without sanction of law. The only case in which affidavits may be used on appeal from a justice’s judgment are those prescribed by sections 3056, 3057, 3064, Code Civil Proc. The first of these sections provides for the substitution of .affidavits in place of a return, when the justice, by death, lunacy, or removal from the state, becomes unable to make a return. Section 3064 applies only to the case of an appeal taken by a defendant who failed to appear before the justice. Section ¿5057 reads: “Where an appeal is founded upon an error of fact in the proceedings not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the matter upon affidavits; or, in its discretion, upon the examination of witnesses; or in both methods.” It must have been in supposed conformity to the provisions of the section last quoted that the plaintiff, appellant below, read affidavits on the hearing of his appeal. But the case was clearly not within the scope of those provisions. The matters alleged in the affidavits, if they existed, were 'wholly within the knowledge of the justice, and were therefore not subject to presentation by affidavit. If they constituted ground of error at all, it was -only by means of a return that they could be brought to the knowledge of the appellate court. All the allegations of the matters referred to were fully met by answering affidavits, and it is difficult to see how the county court could have held them established by a preponderance of proof. But there was no .authority for the employment of affidavits in the case; and, as the judgment of reversal was apparently based upon the affidavits, it cannot be sustained. The judgment of the county court must be reversed, and that of the justice, .affirmed. So ordered. All concur.  