Majority
p. 379Grant against Button. NEW-YORK, October, 1817.
Headnote
In an action to recover the ’£d®ah°f„rw°¡¡g {¡5c™theamount °Lo'vefy!immay ^0°r” ^ mdVa1™1?mMatte?whfch Rredra8ieaydemer action and rejected, cannot !>« made the suhject of a new suit-IN ERROR on certiorari to a iustice’s court.
The defendant in error brought an action against the plainiiffs in error, in "the court below, for not doing some work as a •carpenter, faithfully, and in a workmanlike manner. The defendant below pleaded the general issue, and a former action by him, as plaintiff for his pay for the same work. It appeared tliat the defendant below had worked for the plaintiff 25 days, and had recovered from him 1 dollar 25 cents per day. Considerable evidence was produced on the part of the plaintiff, A x 1 that the defendant was not a good workman, and did not earn ° * 1 dollar 25 cents per day. It also appeared, on the part of the defendant, that he was absent, for some time, from the plaintiff’s work, who came after him a second time, and was anxious to have him return. The justice, before whom the former trial was had, testified that the plaintiff defended that suit, and offered evidence to show, that the defendant’s work was not worth the wages which he claimed, and which it appeared that the plaintiff had agreed to give, for the purpose of reducing the amount of his recovery ; but the justice stated, that he considered the plaintiff bound by his agreement, and did not allow any deduction. A verdict and judgment were given in this cause for the plaintiff below, the defendant in error.
The plaintiff’s right to recover any thing upon the merits, in this case, independently of the question in relation to the former trial, is extremely doubtful; hut he is, at all events, barred by that trial. The same matter was there properly given in evidence, and the justice erred in not allowing a de-
p. 380
duction on that account, if sufficiently proved.(a.) It does not appear, with certainty, whether the former trial was by jury or not; but it is fairly to be intended from the justice’s evidence that it was not. The justice says, that the plaintiff on the trial before him attempted, by some of the same witnesses examined in this cause, to reduce the price of the defendant’s labour, but he considered the plaintiff below bound by a special contract, and he accordingly allowed the defendant below a dollar and a quarter per day, according to the contract. The evidence, it would seem, therefore, was heard by the justice. If it was inadmissible, it should have been rejected, otherwise the parties could-not know on what ground thq justice decided. If he erred in receiving or rejecting the evidence, the party aggrieved would have had a remedy; but as the case now stands, the matter must be deemed to have been once tried, and the judgment must be reversed.(b.)
Judgment reversed.
Footnotes
- (a) (a) Vide Beecker and Beecker v. Vrooman, 13 Johns. Rep. 302 . Jones v. Scriven, 8 Johns. Rep. 453
- (b) (b) Vide Jones v. Scriven, 8 Johns. Rep 453 . White v. Ward & Aylesworth, 9 Johns Rep. 232 Canfield v. Monger & Adams, 12 Johns. Rep. 347 .