
    Isaac Kilmer, App’lt, v. Peter Messling, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 8, 1893.)
    
    Justice’s court—Judgment should not be reversed because of trivial, ERRORS WHERE SUBSTANTIAL JUSTICE IS DONE.
    Where substantial justice has been done between the parties, a justice’s judgment should not be disturbed because of a trivial error in computing, the amount.
    Appeal from judgment of the Rensselaer county court, reversing a judgment of a justice’s court in favor of plaintiff for thirty-one dollars damages.
    Action to recover of defendants the sum of forty dollars for-work, labor and services performed by plaintiff!
    The facts sufficiently appear in the opinion of the county judge,, as follows:
    Griffith, J. Without considering the multiplicity of objections raised upon the trial of this action before the justice, I am inclined to the belief that the judgment is unsupported by the evidence. In the testimony of Isaac Kilmer I find that, among other things, he "swears that the price for the plaintiff’s labor was agreed upon at two dollars per day and board. The plaintiff was. unable to tell from memory how many days he had worked," or how much the defendants were indebted to him therefor, but upon looking at his book he found the defendants owed him $27.53.
    
      That is all the evidence given as to the indebtedness or the ■amount claimed to be due the plaintiff from the defendants. The justice rendered a judgment in favor of the plaintiff and against the defendant, Messling, for $31.00 damages and $9.15 costs. There is some further testimony that the plaintiff sold the defendants four pounds of butter at eighteen cents per pound. If the justice had found for the plaintiff on this point, and added the price of the butter to the labor account, it then only amounted to $28.25. I am unable to discover from the return where the .justice found the additional sum of $2.75, which went to make up the amount of thirty-one dollars, and for which he gave the plaintiff judgment.
    The amount of the damages could only have been determined by conjecture, and is not based upon any calculation warranted by the testimony. Upon the argument, the respondent’s attorney urged that the justice might have included interest. If he did, there is no evidence to show from what time it was computed or upon what principle the computation was made. An unliquidated account for work, labor and services does not bear interest. Rensselaer Glass Factory v. Reid, 5 Cowen, 588; Doyle v. St. James Church, 7 Wend., 178.
    If the conversation sworn to by the plaintiff and the witness, Burrows, as having taken place between Kilmer and Messling, at which the book was shown and the account agreed upon, was accepted by the justice as evidence of a settlement or liquidation between the parties, then interest ■ might be charged from that date, June, 1890. But even in this view the amount of the judgment, thirty-one dollars, could not be reached. Such- a judgment cannot stand, and is without sufficient evidence to support it. Dander v. Lasher, 5 Bans., 335.
    The judgment of the justice must be reversed, with costs.
    
      Nelson Webster, for app’lt; Frederick A. Chew, for resp’t.
   Herrick J.

From an examination of the testimony in this case I am satisfied that there is sufficient evidence to justify the justice in holding the defendant Messling liable to the plaintiff.

The plaintiff was entitled to interest upon his claim ; it may be, however, that the justice has made an error in the computation of the amount. The error, however, is so small in amount, that I do not think that substantial justice would be done by reversing the judgment of the justice fer that reason. The Code, § 3063, says : “ The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits.”

I do not think that parties should be encouraged to appeal where the error in amount is trivial, and incur the expense of the appeal themselves, or subject their adversaries to such expense.

When substantial justice has been done between the parties, the judgment should not be. disturbed.

The judgment of the county court should be reversed and that of the justice affirmed, with costs.

Maye AM, P. J., concurs; Putnam, J., not acting.  