
    Charles Millbanks, Resp’t, v. Solomon Coonley, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 3, 1888.)
    Justice op the Peace—Decision as to amount involved in suit can be REVIEWED ON APPEAL.
    The decision of a justice of the peace as to whether the amount involved in an action tried before him, exceeds or not, the limit fixed by statute, is not conclusive, in the sense that it cannot be reviewed. The judgment can be reversed in the appellate court on this ground, if the justice was in error.
    Appeal from a judgment of the Albany county court, affirming the judgment of a justice of the peace, rendered upon the verdict of a jury in favor of the plaintiff, in an action tried in a justice’s court of the town of Coeymans, in the county of Albany.
    
      W. S. Hevenor, for app’lt; Augustus Sherman, for resp’t.
   Learned, P. J.

This action was commenced in justices’ court. To the plaintiff’s complaint was attached a bill of particulars marked X. To the defendant’s answer a bill of particulars marked V. On the trial it was stipulated by parties and counsel that these two bills of particulars were admitted and received in evidence subject to the right to cross-examine; that the bills should be considered as respectively testified and sworn to by respective parties. (This is the fair understanding of the case, although in one place it speaks as if plaintiff were also to testify to defend- - ant’s bill.)

How, plaintiff’s bill of particulars X, amounts, in the total, to $281.29. He adds to his bill, charges of defendant against him, not payments, amounting to $92.06.

Plaintiff’s bill of particulars amounts to $221.11, and he testifies to its correctness.

The total amount, therefore, was $502.40. And as the respective bills were taken as testified to by the parties, we have an aggregate of items given in evidence of $502.40. It is quite possible that the items attached to plaintiff’s bill of particulars, amounting to $92.06; may be the same with a part of defendant’s bill of particulars. Assuming this to be so, still the aggregate of accounts would not be charged.

The_ charges of defendant against plaintiff, attached to plaintiff’s bill, are not payments, unless an item called “cash for pressing” may be so considered. The argument of plaintiff is that as the plaintiff attached to his bill of particulars a bill of defendant’s supposed counterclaim, that is to be considered as a payment. But we think not. It expressly shows work done, etc., items which would give the defendant a cause of action against plaintiff. Of course a payment can never constitute a cause of action.

. There are _ many of the items in defendant’s bill of particulars which appear to be identical with some of those stated in the bill of credits annexed to plaintiff’s complaint, marked Z. But many we cannot identify. The plaintiff gave in evidence, the complaint and a bill of items attached thereto,_ in an action commenced by this defendant against this plaintiff before a justice of the peace, and afterwards discontinued. And he urges that because in that complaint defendant averred that “ the defendant has paid in offset, and, as set forth in bill of items,” a certain amount, therefore that amount must be treated as payment and thus must reduce the aggregate of defendant’s items. But this is not so. The bill plainly shows that it was not accurately a payment, but a set-off. And so the complaint stated it.

The plaintiff further insists that the decision of the justice is conclusive.

The law on this point is well stated in White v. Place (40 Hun, 481). It is to the effect that as the justice must decide whether the sum total of the accounts exceeds $400 an_ incorrect decision is error, but not fatal to jurisdiction. It is to be corrected like any other error. In that case the general term examined the case and found that the evidence did not show that the sum total exceeded $400, and on that ground reversed the county court. But the court did not hold that the decision of the justice was conclusive, in the sense that it could not be reviewed; only that the judgment would not be void. Certainly a justice cannot, against the evidence, render a judgment which may not be reversed. If, therefore, it clearly appears from the evidence that the sum total of the accounts did exceed $400, the justice was in error and the judgment should be reversed.

The plaintiff further insists that by attaching bill Z. to his complaint he was allowed $92.06 of defendant’s claim, and thus reduced by so much the sum total of accounts. But on comparing the two bills we find, sometimes, different prices where we can identify the charges.

We do not see, therefore, how this can be an admission of defendant’s items, even if an admission of these items should be held to reduce the sum total. The pleadings of the parties seem to have put everything at issue.

The judgment should be reversed, with costs.

Landon and Ingalls, JJ., concur.  