Wilgus v. Wilkinson

Headnote

Wilgus v. Wilkinson, 50 App. Div. 1 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, made March 27, 1900, reversing an order denying a motion to strike out the answer, entered upon a decision of the court at a Trial Term without a jury, and granting the motion.

The following questions were certified:

First. Did the plaintiff herein complain in the Supreme Court for the same cause of action only upon which he relied before the justice of the peace within the meaning of section 2957 of the Code of Civil Procedure%

Second. If the plaintiff did not complain for the same cause of action only in the Supreme Court as he did in the Justice Court, could the defendant set up a different defense in his answer in the Supreme Court from that interposed in Justice Court ?

„ Third. Under the Code of Civil Procedure, section 2957, providing that on removal of an action involving the title to real property from a Justice’s Court to the Supreme Court, the plaintiff must complain for the same cause of action as that set up in the complaint before the justice, if the complaint in the Supreme Court fails to conform to the complaint in the Justice’s Court, is the defendant’s only remedy a motion to strike out the complaint, or can he consider the service of such a complaint the commencement of a new action, and serve a different answer than that relied upon before the justice %