Papenmeyer v. Roddy — 129 N.Y.S. 868

Majority

p. 868

PAPENMEYER v. RODDY.

(Supreme Court, Appellate Division, Second Department.

June 9, 1911.)

Headnote

Justices of tbce Peace (§ 1S9^[1] )—Appeal—New Trial.

Under Code Civ. Proc. § 3063, the power of the County Court to direct a new trial on reversal of the judgment of a justice, where appellant did not demand a new trial in the County Court, is limited to cases where the reversal is contrary to the evidence, and does not authorize the same on dismissal of plaintiff’s complaint before the justice.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§" 727-733; Dec. Dig. § 189.^[1] ]

p. 869

Appeal from Nassau County Court.

Action by Gustav H. Papenmeyer against Edward U. Roddy. From a judgment of the County Court, reversing a judgment of the Justice’s Court, and granting a new trial, defendant appeals.

Modified and affirmed.

Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.

Lincoln B. Haskin, for appellant.

Theophilus Parsons, for respondent.

The single question for our consideration is whether, upon reversing a judgment of a justice of the peace upon the ground that the complaint was erroneously dismissed, the County Court may direct a new trial before the same justice, at a time and place fixed in the order.

The plaintiff sued the defendant to recover commissions on the sale of defendant’s automobile, and at the close of the evidence the defendant’s motion to dismiss the complaint upon the ground that the plaintiff had failed to prove a cause of action was granted. The County Court held that this was error, reversed the judgment, and directed a new trial before the same justice at a time and place fixed in the order of reversal.

The error for which the judgment of the justice was reversed was an error of law. The power of the County Court to direct a new trial, upon reversal of a judgment of a justice of the peace, where, as in this case, the appellant did not demand a new trial in the County Court, is provided by section 3063 of the Code of Civil Procedure, and is limited to cases where the reversal is because the judgment is contrary to or against the weight of the evidence.

We agree with the learned County Court in his conclusion that the justice of the peace erred in dismissing plaintiff’s complaint, and that the judgment was properly reversed; but we are of the opinion that it had no authority to direct a new trial.

The order is modified, by striking out its provisions directing a new trial, and, as modified, affirmed, without costs to either party in this court.. All concur.