Majority
p. 530Platner against Best. NEW YORK, October, 1814.
Headnote
An action cantaíneáe to*™ omi tted? Sby uMofánother ajudgmentwaa plaintiff” but not for the amount due to him.IN ERROR, on certiorari, from a justice’s court. Best brought an action on the case against Plainer, and declared against him, in substance, that he, B,, had sued P., on a former suit, and that one of the items of his demand, amounting to 7 dollars, was confessed by the defendant, and the other disputed; and that the justice, by mistake in giving his judgment; omitted to allow the 7 dollars. The suit below was to recover that . . . item, but what it was is not stated m the return. The defendant pleaded the general issue and a set-off. Upon the trial, the plaintiff proved his declaration, by the justice who tried the-former cause, The defendant did not prove any set-off, but objected to the plaintiff’s recovery, on the ground of the former trial. The objection was overruled, and a verdict was found for the plaintiff below, on which the justice gave judgment.
The substantial justice of this case would appear to be with the judgment. But it cannot be supported, without a violation of a settled rule of law. The cause of action has once been tried, and it would be a dangerous principle to allow a judgment to be opened and the cause of action again tried, by another justice, on the ground of a mistake in the former trial. If such mistake was made, it cannot be corrected in this way. The judgment must accordingly be reversed.
Judgment reversed.