
    WILLIAM H. DENNISTON, as Overseer of the Poor, etc., Respondent, v. DAVID TRIMMER, Appellant.
    
      Action to recover a penalty for a violation of the excise law — that money was loaned by the defendant to the plaintiff, as overseer of the poor, cannot be set up as' a counter-claim — An improper pleading used in a Justices' Court cannot be made the basis of a demand for a new trial on appeal in the County Court.
    
    Appeal from an order and .judgment of the County Court of Monroe county, affirming with costs the judgment of a Justices’ Court.
    The action was brought to recover a penalty of fifty dollars for selling liquor without a. license, contrary to the excise laws of the State.
    The answer set up a general denial, also a counter-claim against the plaintiff as overseer of the poor of the town of Parma, for money loaned and advanced by the defendant to the plaintiff in the sum of $118.
    The case was tried before Russell C. Bates, Esq., a justice of the, peace of the town of Parma, on the 24th day of October, 18Y8, and a judgment rendered in favor of the plaintiff and against the defendant for fifty dollars, with costs.
    A demurrer interposed by the plaintiff to the counter-claim set up by the defendant was overruled.
    An appeal was taken from the judgment of the Justicos’ Court to the County Court of Monroe county, for a new trial in that court.
    When the case was reached on the calendar in the County Court, on motion of the respondent’s attorney, the court ordered that all that part of the defendant’s answer which sets up a counterclaim be stricken out, and that the cause be transferred to the law calendar of said County Court, and that the appeal be argued on the justice’s return.
    The court, after hearing the argument upon the return, affirmed the judgment of the Justices’ Court, with costs.
    The court at General Term said: “No statute is cited and we know of none which authorizes the overseers of poop of towns to borrow money, and the off-set or counter-claim therefor in a penal action, and the attempt of the defendant to set up a claim for money loaned to plaintiff as overseer of the poor, against a demand for a penalty for violation of the excise law, is without precedent and sanction of any statute, and the justice erred in overruling the demurrer interposed in the Justices’ Court to that portion of the answer.
    “ When the cause was moved in the County Court, it was properly held by that court, that an improper pleading cannot be made the basis of a demand for a new trial in that court, under section 352 of the Code of Procedure.
    
      “ Such ruling the authorities sustain. (Houghton v. Kenyon, 38 How., 107; Johnson v. How, 11 Alb. L. J., 128; Nash v. White's Bank, 13 Weekly Dig., Ml; Smith v. Rail, 67 N. Y., 48 ; Pittman v. Ma/yor, 3 Hun, 370.) Hence the order made by the County Court was right.”
    
      George E. Bvpsom, for the-1 appellant.
    
      John M. Da/oy, for the respondent.
   Opinion by

Hardin, J.;

Smith, P. J., and Haight, J., concurred.

Judgment and order affirmed.  