
    Charles Shaw et al., App’lts, v. Frank A. Roberts, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 21, 1891.)
    
    
      1. Justice’s court—Jurisdiction—Accounts exceeding $400.
    In an action where a question arose as to the jurisdiction of a justice, because, as alleged, the accounts of both parties exceeded $400, it appeared that defendant had been plaintiffs’ clerk and that upon monies advanced him by plaintiffs he had repaid part in cash and had charged other sums against himself in their books. Field, that it was a question of fact for the justice to find whether these sums were payments upon the defendant’s services; that if he so found and the accounts thus reduced were within the statutory limit, the justice had jurisdiction.
    2. Same—Affirmative defence must be proved by the defendant.
    The defendant alleged in his answer that he was to have a share in the profits of the business. He gave no evidence to show profits. The plaintiffs gave evidence that there were no profits. This evidence was objected to as incompetent. Field, that it was for the defendant to show that there were profits and having failed to do so he was not injured, although the plaintiffs’ evidence was improper.
    
      Appeal from a judgment of the Warren county court, reversing a judgment of $194.53 and costs in favor of the plaintiffs.
    
      Adam Armstrong, for app’lts; H. A. Howard, for resp’t.
   Landon, J.

The question is whether “ the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars.” Code Civ. Pro., § 2863. The defendant had been in the service of the plaintiffs, and his services were proved to amount.to $561. Apparently the amount of the accounts of the plaintiffs was $1,005.53 after deducting an error of $15.35 in what was termed the Braley and Noxon item. The apparent amount of the defendant’s accounts was $811, after deducting the same $15.35 charged therein to counterbalance the error in the plaintiffs’ account. Of the plaintiffs’ account more than $729.26 were cash items received by the defendant from them. The defendant testified and was not contradicted that he had returned to the plaintiffs $250 upon the amount received from them, and had charged himself in their books with $479.26. It was for the justice to find as a fact whether the $250 returned to plaintiffs was as a payment upon their advances, and whether the $479.26 which defendant charged to himself in their books was a payment to himself upon his services. The justice manifestly so found, and as it was a fair inference of fact from the testimony we must accept his finding. These payments extinguished pro tanto the sum total of the accounts. The defendant’s account therefore was for his services $561, less $479.26 paid thereon leaving it $81.74. The plaintiffs’ account of $1,005.-53 was reduced by the $250 repayment and the $479.26 applied in payment of defendant’s services, leaving it $276.27, making the sum total of both accounts $358.01, and thus within the jurisdiction of the justice, and making the difference $194.53, for which he rendered judgment against the defendant..

The complaint was to recover $200, for money, services and merchandise, for which the defendant, who “ has been in the employ of the plaintiffs,” was indebted to them “ in excess of the ■amount of the services.”

The answer contained a general denial, claimed $600 for services, alleged a contract by which, in addition to $1,200 per year, the defendant, was to receive two and one half per centum of the profits, and claimed $1,300 damages because of his premature and unjust discharge from service.

Error is alleged with respect to testimony given by one of the plaintiffs tending to show that there were no profits. . No testimony was given by the defendant tending to show that there were .any profits.

Grant that plaintiffs’ testimony was. incompetent and should have been excluded, its exclusion would not help the defendant. The case would then be barren of all evidence upon this point, and without evidence the defendant’s claim would have to be rejected. If there was anything of it, it was an affirmative claim for the defendant to plead and prove. The defendant did set it forth in his answer. The form of the complaint cast no burden on the plaintiffs to disprove it; for if it can be said that the complaint implied that some amount was due the defendant for his services, in the absence of all proof, a nominal sum, not exceeding six cents, would fully satisfy the legal implication.

The defendant complains of some rulings upon the admission and exclusion of evidence. We do not think the defendant was prejudiced by any of them. The defendant did not dispute in his-testimony any of the items the plaintiffs adduced, and clearly he must have had full knowledge respecting their validity.

Judgment of the county court reversed, with costs.

Learned, P. J., and Mayham, J., concur.  