
    EDWARD RYAN, Respondent, v. WILLIAM H. LEWIS, Appellant.
    The plaintiff brought an action in the Justice’s Court, for injuries sustained by his wagon, in a collision with the wagon of the defendant. The defendant denied the complaint. On the adjourned day the defendant asked to amend his answer, by adding thereto, as a defense, that, since issue was joined, an action had been tried in which the present plaintiff was defendant, and this defendant plaintiff, for injury done to the defendant’s wagon, in the same collision, and in that action the present plaintiff had set up, by way of counter-claim, the damages sustained by him in such collision, which were the same damages sought to be recovered in the present action. The justice refused to allow the amendment.
    
      Held, that the setting up of the new matter was not in the discretion of the justice, but the right so to do was absolute, and the justice had no discretion about it.
    Evidence that plaintiff paid ten dollars to repair his wagon, and that then it was not worth by fifteen dollars as much as before the injury, held, incompetent as a measure of damages.
    Appeal from a judgment of the Monroe County Court, affirming a judgment of a justice of the peace, in favor of the plaintiff.
    
      A. J. Willem, for the appellant.
    
      A. P. Butts, for the respondent.
   Mullin, P. J.:

This action was commenced in a Justice’s Court, to recover of the defendant the damages sustained by him, by reason of the defendant’s running against plaintiff’s wagon and breaking it with his (defendant’s) buggy while they were passing each other on the highway, in the night of the 19th June, 1812.

On the return day of the summons, the defendant denied the complaint, and the cause was then adjourned. On the adjourned day the parties appeared, and defendant asked leave to amend his answer by adding thereto as a defense, that since issue was joined in this action, an action had been tried, in which the present defendant was plaintiff, and the present plaintiff was defendant, in which the present defendant complained against the present plaintiff for injury done to the buggy of the present defendant, in the same collision referred to in the complaint of the present plaintiff, in which action the present plaintiff set up, by way of counter-claim, the damages sustained by him in such collision, and which are the same damages sought to be recovered for in this action; that the present plaintiff gave evidence in support of such counter-claim, and the same was submitted to and passed upon by the jury. The plaintiff’s counsel objected to the amendment of the answer, and the same was refused by the court. The parties then proceeded to trial, and judgment was entered against the defendant for twenty-five dollars damages, besides costs.

Both the plaintiff and defendant could not recover damages for injuries sustained by the collision of the buggies. The one who was free from fault, could alone recover. If both were in fault, neither could recover. The damages sustained by the defendant in the first suit (the plaintiff in this), were not a proper subject of counter-claim in the first aetion. The defense offered to be put in by way of amendment, alleges that the plaintiff in this suit set up his damages by way of recoupment ; that evidence was given in support of it, and it was submitted to, and passed upon by the jury. The allegation proved, the plaintiff could not maintain an action for such damages, although if objected to, the counter-claim would have been stricken out of the answer, as not being a proper subject of counter-claim. The truth of the matters set forth in the amendment to the answer, was not denied, and being true, it appeared that the trial in the former action was had since the joinder of issue in this, and the defendant had no opportunity to amend his answer at an earlier day than that on which the application for leave to amend was made. It was as much a legal right to set up the new matter by way of amendment, as it would have been at the joining of issue. Had he been refused leave to set it up then, there could be no doubt but the court on appeal would reverse the judgment-The justice had no discretion about it. It was matter of strict legal right. But, assuming that the allowance of an amendment rests in the discretion of the court, yet the refusal in this case was

a gross abuse of the discretion, and the only remedy of the party is by appeal. A judicial officer who should refuse leave to a party to amend, when it is apparent that the application is made in good faith, and is absolutely necessary for the protection of his rights, ought to be indicted or removed from office.

The plaintiff proved that he paid ten dollars for repairs to the buggy, and that it was not then worth as much as before the injury by fifteen dollars. This evidence was objected to, and the objection was overruled, and defendant’s counsel excepted. The measure of damages which the plaintiff was entitled to recover, if he recovered anything, was the amount the buggy was lessened in value by reason of the injury. The plaintiff could not cause repairs to be made upon it which did not make it as good as it was before the injury, and then recover in addition, the amount the repairs fell short of making it as valuable as before. There might be a controversy as to the manner in which the work was done, and as to the quality of the materials used. If either was defective, the defendant would» be obliged to pay more than the amount that would compensate plaintiff for the injury.

The judgment must be reversed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment of County Court, and that of the justice, reversed. 
      
       Schnaderbeck v. Worth, 8 Abb. Pr., 37.
     
      
       Askins v. Hearns, 3 Abb. Pr., 187; Barhyte v. Hughes, 33 Barb., 320.
     
      
       1 Wait’s L. & P., 945.
     
      
       Plato v. Kelly, 16 Abb., 188.
     