Pugsley v. Kisselburgh — 10 N.Y. 420

Majority

p. 420

Pugsley against Kisselburgh.

Headnote

Where the defendant, in an action brought before a justice of the peace for trespass upon lands interposes a plea of title, and an action for the same matter is thereupon commenced in the supreme court, it seems that no reference need be made in the pleadings to the proceedings before the justice.

An appeal does not lie to the court of appeals from the judgment of the supreme court in such action.

Where the record does not show that the action was originally commenced in a justices’ court, that fact, on a motion to dismiss the appeal, may be shown by affidavit.

The plaintiff commenced a suit in October, 1848, against the defendants before a justice of the peace of Columbia county, and complained against them for breaking and destroying his fences and entering upon and injuring his lands, and crops growing thereon. The defendants in their answer justified the entry, alleging that they were commissioners of highways of the town where the premises entered upon were situated, that the premises were of right a public highway, but had been enclosed and the highway obstructed by the plaintiff, and that the acts complained of were done by them in removing such obstructions, and repairing the highway. The plaintiff replied, denying the facts alleged in the answer. The defendants delivered to the justice, with

p. 421

their answer, an undertaking, such as is required by the statute where the title to lands is put in issue before a justice of the peace, which was approved by the justice; and thereupon a suit was commenced by the plaintiff against the defendants in the supreme court for the same cause of action, and issue was joined upon pleadings similar to those which were filed with the justice. The issues were tried in June, 1849, at the Columbia circuit, where the plaintiff obtained a verdict for $25, upon which judgment was subsequently entered. A motion for a new trial was denied by the supreme court, and the defendants appealed to this court. The record set forth in the return, and in the printed case before this court contained no reference to the proceedings before the justice.

K. Miller, for the respondent,

on affidavit showing the foregoing facts, moved to dismiss the appeal.

J. H. Reynolds, for the appellants,

opposed the motion.

From the cases of Brotherton v. Wright ( 15 Wend., 237 ), and The People v. the Albany Common Pleas ( 19 Wend., 123 ), it appears not to be necessary that the record should show the identity of the suit in the common pleas with that begun in the justices’ court; for although it did not in those cases appear from the record the suits were regarded as continuations of those commenced in the justices’ courts. If this be so, then unless we are prepared to reject the authority of Brown v. Brown ( 6 How. Pr. Rep., 320 ,) in this court, we must look into the motion papers to see whether the suits are thereby shown to have been commenced in justices’ courts. If they appear to be so situated that in the supreme court the plaintiff on recovering less than $50 would be entitled to full costs against the defendants, even if title did not there come in question, then, I think, under the case of Brown v. Brown, we must hold

p. 422

them to have originated in a justices’ court In this case it plainly appears from the affidavits that the cause did, in the sense of the rule, originate in a justices’ court, and therefore the appeal must be dismissed.

Motion granted, with $10 costs.