
    George Hinkley, Appl’t, v. The Troy and Albia Horse R. R. Company, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1886.)
    
    1. New Trial—Appeal prom justice’s court to county court—Code Civ. Pro., § 3068.
    On the return of a summons in a justice’s court the parties appeared, and plaintiff complained for a wrongful injury to his horse by defendant’s horse, claiming $200. Defendant answered by a general denial. Subsequently plaintiff amended his complaint by some amplification, and claimed forty-nine dollars damages and costs. Defendant interposed an amended answer, admitting its incorporation, denying all other allegations of the amended complaint, and adding a counter-claim for sixty dollars damages, alleging that at the time and place mentioned in the complaint defendant, through plaintiff’s negligence, sustained an injury to that amount, and demanded payment therefor. Upon the trial plaintiff recovered forty-nine dollars and costs. Defendant appealed to the county court, demanding in his notice of appeal a new trial in the appellate court. Plaintiff moved to have the case put upon the law calendar of that court, on the ground that the case was not one entitling defendant to a new trial as demanded, which motion was denied. Held, that the right of an appellant to a new trial in the appellate court on an appeal from a justice’s judgment depended on Code Civ. Pro., § 3068, which provided that where an issue is joined before a justice, and the sum for which judgment is demanded by either party in his pleading exceeds fifty dollars, the appellant may have a new trial in the appellate court by so demanding in his notice of appeal.
    2. Counter-claim—What not admissible as—Code Civ. Pro., §§ 2945, 501, 502.
    
      Held, that the complaint admitted of no counter-claim, especially not a, counter-claim in tort; certainly not, unless the alleged counter-claim arose out of or was connected with the transaction set forth in the complaint as the foundation of plaintiff’s claim, and that defendant’s counter-claim not being so pleaded, was inadmissible, and could not be made the basis of a new trial in the appellate court. See Code Civ. Pro., §§ 2945, 501, 502.
    3. Pleading — Amended pleading supersedes original — Is contemplated by Code Civ. Pro. § 3068.
    
      Held, that the amended pleading superseded the original which was no longer to be treated as a pleading in the action, and that the issue of fact referred to in Code Civil Procedure, § 3068, was limited to the issue made before the justice for trial and on which the trial proceeded.
    
      4. New trial—On appeal prom justice’s court to county court—When NOT ALLOWED.
    
      Held, that after the amendments were allowed and made, and after the exclusion of defendant’s inadmissible counter-claim, there being no demand by either party for a recovery exceeding fifty dollars, the appellant was not entitled to a new trial in the appellate court.
    
      B. C. Strait, for app’lt; B. E. De Croot, for resp’t.
   Bookes, J.

This is an appeal from an order of the county court denying a motion made by the plaintiff to have the case, pending in that court on appeal from justice’s court, put on the law calendar for hearing as an appeal on the law.

The plaintiff is fortified in his practice by the decision in Harvey v. Van Dyke (66 How., 396).

The papers before the court on this appeal show the following facts, with some others unimportant-to be noted: That on the return of the summons the parties appeared before the justice, where the plaintiff complained for a wrongful injury to his horse by the defendant’s horse, and demanded judgment for $200. The defendant answered by general denial; thereupon an adjournment was had to a future day. On the adjourned day the plaintiff amended his complaint by some amplification of it, and claimed to recover as damages, forty-nine dollars and costs. The defendant then interposed an amended answer, admitting its incorporation, and, as before, putting in a general denial as to all other matters charged in the complaint, and adding a counter-claim as follows: Defendant further alleges and states for a cause of action, and claim herein that at the time and place mentioned in the complaint herein, defendant, through the carelessness, recklessness and negligence of plaintiff in driving his, a vicious and unruly horse, run into and collided with ahorse belonging to the defendant, and that defendant there by sustained damage in the sum of sixty dollars for which sum it demands judgment. The parties went to trial on their pleadings; and the plaintiff recovered forty-nine dollars, with costs of suit. The defendant appealed to the county court, and in the notice of appeal demanded a new trial in the appellate court. Thereupon the return of the justice having been made, containing the proceedings and evidence before him, the plaintiff made a motion in the county court to have the case put on the law calendar of that court for hearing upon the law, on the ground that the case was not one entitling the defendant to a new trial in the appellate court, as demanded in the notice of appeal, which motion was denied. In this ruling we are of the opinion, the county court was in error. The right of an appellant to a new trial in the appellate court on an appeal from justice’s judgment is made to depend on section 3068 of the Code of Civil Procedure, which provid'es, that where an issue is joined before a justice “and the sum for which judgment is demanded by either party in his pleading exceeds fifty dollars,” the appellant may have a new trial in the appellate court by so demanding in his notice of appeal. Now in this case the plaintiff demanded judgment in and by his complaint on which the trial was had for but forty-nine dollars as damages; and the defendant’s counterclaim on which it demanded judgment in its favor for sixty dollars was inadmissible as a counterclaim in the action. The alleged right of action stated in the plaintiff’s complaint was in tort; as was also the defendant’s alleged counterclaim. The complaint admitted of no counterclaim, especially not a counterclaim in tort; certainly not unless the alleged counterclaim arose out of or was connected with the transaction set forth in the complaint as the foundation of the plaintiff’s claim. Code of Civ. Pro., §§ 2945, 501, 502. But the defendant’s counterclaim was not so pleaded. The fact was not so averred. As stated, non constat but that the alleged counterclaim grew out of another and distinct transaction from that counted on in the complaint. Indeed it is so pleaded, and might be sustained by proof of an entirely different occurrence. To make it admissible in any possible view of the subject as a counterclaim in this action, the fact should have been averred, that it grew out of or was connected with the transaction set forth in the complaint as the foundation of the plaintiff’s claim. The counterclaim then being inadmissible as a pleading in the case, could, not be made the basis of a demand for a new trial in the appellate court. Harvey v. Van Dyke (66 How., 395), and cases there cited.

The point is taken, however, that the plaintiff in and by his original complaint demanded judgment for $200, and that thereby the defendant’s right to demand and have a new trial in the appellate court became fixed and was secured to it, notwithstanding the amendment of the pleading thereafter made. This is put on the ground that the “issue of fact” referred to in section 3068, above cited, means, and is limited to, that made on the original joining of issue before the justice, to the exclusion of what may be stated and demanded in amendments of the pleadings thereafter made. This is manifestly a mistaken view of the subject. The issue joined before the justice there spoken of is the issue made before the justice for trial, and on which the trial proceeds. An amended pleading super-cedes the original—takes its place—is a substitute for the original, which is no longer treated as a pleading in the action. 2 Wait’s Prac., 505, and cases there cited. It would be strange, indeed, if a superseded pleading—a pleading expunged from the record—could be allowed to influence and control a further proceeding in the action. Section 3068 defines and limits the cases in which a new trial may be had in the appellate court, and the limitation is there made to cases where an issue was joined before the justice on pleadings wherein judgment was demanded by either party, exceeding fifty dollars, in contradistinction to cases where no issue had been there joined. Now here, after the amendments were allowed and made, and on excluding the defendant’s inadmissible counterclaim, there was no demand by either party for a recovery exceeding fifty dollars as damages. The appellant was not, therefore, entitled to a new trial in the appellate court. It follows that the plaintiff’s motion to have the case put on the law calendar should have been granted.

The charge of fraud and bad faith made by the parties, each against the other, in framing their respective pleadings, has no significance on the motion. "What was done by them in that respect, they had the legal right to do, and fraud and bad faith cannot be well asserted for doing that which the law permits to be done.

The order appealed from must be reversed, and the motion below granted, with ten dollars costs of appeal and disbursements for printing, but without costs of motion.

Landón, J.

I concur. If by a liberal construction, it could be held that the alleged counter-claim was admissible because stating a cause of action arising- out of the transaction set forth in the complaint, it then should be held to be either sham, because no evidence was offered to support it, or to be an answer upon which the defendant, as appears .from the like reason, voluntarily suffered default, and he should not be accorded a “new” trial upon it, until he had had a trial in the first instance in the'forum appointed for the purpose. But I entirely concur upon the grounds assigned by my Brother Bockes.

Learned, P. J.

(dissenting).—I am still of the opinion, which I expressed in Harvey v. Van Dyke (66 How., 396), that this appeal does not lie. An appeal to this court from an order of the county court can only be taken in a matter affecting a substantial right. The order appealed from denies a motion to transfer the case from the trial calendar to the law calendar. I think the county court has control of its calendars, whether they be called law calendars or trial calendars. When the case shall come on to be heard before the county court, if the court shall hear new evidence and conduct a new trial, when it ought to decide on the justice’s return only, or if it shall refuse to hear new evidence and to have a new trial, and insist on hearing the case on the justice’s return, when it ought to do the contrary, then there will be error, which we can review. But putting a cause on one calendar or another is only an intimation of what the county court thinks the rights of the party will be when the case shall come on to be heard. I think we should not undertake to regulate the calendars of other courts, and indeed, that we have no jurisdiction of such matters.

Therefore, I think the appeal should be dismissed.  