Hepp v. Tyler — 151 N.Y.S. 591

Majority

p. 591

(88 Misc. Rep. 121)

HEPP v. TYLER.

(Onondaga County Court.

December, 1914.)

Headnote

1. Justices of the Peace (§ 107^[1] ) — Continuance—Denial—Discretion.

The action of a justice of the peace in denying a motion made by defendant’s attorney for an adjournment for substantially 90 days, to enable defendant, who was out of the state, and a material witness, to be . present at the trial, was not an abuse of discretion.

[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 351-361; Dec. Dig. § 107.*]

2. Justices of the Peace (§ 99*) — -Pleading—Bill of Particulars — Discretion.

Under the express provisions of Code Civ. Proc. § 2942, a justice of the peace may, in his discretion, require that a party exhibit his account on demand, and, in case of default therein, may preclude him from giving evidence.

[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 334 ; Dec. Dig. § 99.*]

3. Justices of the Peace (§ 99*) — Pleading—Bill of Particulars — Sci-enter.

In an action brought in justice's court for the wrongful killing of plaintiff’s geese by defendant’s dog, defendant was not entitled to a bill of particulars of plaintiff’s evidence as to scienter; the only matters which plaintiff could have been required to show in his bill of particulars, under the strictest construction of Code Civ. Proc. § 2942, relative to the bill of particulars, being the claim made as to the number and value of the geese killed and the date.

[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 334; Dec. Dig. § 99.*]

Appeal from Justice Court.

Action William Hepp against Charles Tyler. From a judgment for plaintiff, defendant appeals.

Affirmed.

Waldo Weston, of Syracuse, for appellant.

James K. Kennedy, of Syracuse, for respondent.

^[1] The appellant claims that the justice of the peace committed reversible errors upon the trial of the case. One of his claims is the refusal to give the defendant an adjournment for substantially 90 days to enable his client, who was out of the state, and a material witness, to return and be present at the trial. I do not think that there was any abuse of the discretion possessed by the justice of the peace in this regard in refusing the defendant the adjournment; this in view of the fact that the material witness was a party, and- the length of the adjournment desired. Had the defendant sought a brief adjournment, its refusal undoubtedly would have been erroneous, but a party who absents himself from the trial of a case in Justice’s Court, in which he is a party, for the maximum statutory period for which an adjournment can'be granted, is not entitled to an adjournment, but at best such adjournment is a privilege which rests in the discretion of the justice. And also quaere whether the defendant should not have taken out a commission for the examination of his client.

p. 592

[2, 3] The appellant also, claims that the justice committed error in allowing evidence after the omission of the appellant to furnish a bill of particulars, which had been demanded. In this connection it is interesting to note the difference in the language in section 2942, which relates to actions in Justices’ Courts, and section'531, applicable to a demand for a bill of particulars in courts of record. In the former section the matter seems to rest entirely in the discretion of the justice of the peace. He may, upon the request of either party, require the adverse party to exhibit his account, on demand,, and in case of the default of the party to do so he may preclude him from giving evidence. While in section 531; relating to courts of record, upon demand of a party the adverse party must deliver, etc., and in the event of his failure he is precluded from giving evidence of the account. "And in case of default the court shall preclude him from giving evidence, etc.” In other words, the provision relative to giving a bill of particulars in Justice’s Court is in harmony with the informal nature of the proceedings in that court. In point of fact the parties frequently are neighbors, and except in the case of a running account, involving many items, the specific claim sued on is frequently as well known to one party as the other. But, in addition to this, in the case under consideration the plaintiff was required to show the killing of the geese, that the dog belonged to the defendant, 'and a scienter; and the only matters which the plaintiff could have been required to indicate in his bill of particulars, under the strictest construction, would have been the claim that he made as to the number and value of the geese killed, and the date. The number and the value of the geese killed are specifically set forth in the complaint. The date is stated to be on or about the 27th day of October, 1912, and the plaintiff testified that he followed the dog to Tyler’s home and got Mr. Tyler up and told him about his dog killing the witness’ geese, and that the defendant and his son came over in the morning, and that he showed them the geese, so that the defendant was fully informed as to the claim of the plaintiff in this regard. The learned counsel for the appellant seems to think that he was entitled to a bill of particulars of the plaintiff’s evidence relative to a scienter. This he was not entitled to under any rule of evidence. This was the plaintiff’s evidence to prove his case.

But in addition to the foregoing, while it is not necessary to determine the matter, I have serious doubts as to whéther section 2942, requiring items of the plaintiff’s claim in Justice’s Court be exhibited, relates to actions of tort. The real issue in this case was the question of the ownership of the dog that killed the plaintiff’s geese. This question of fact was passed upon by a jury of men, practically neighbors of both parties, and their verdict is based upon sufficient evidence to sustain their finding. It is the policy of the law to quiet litigation of this .sort. The parties have had their day in court, and the law relative to procedure in Justice’s Court must be liberally interpreted to sustain a judgment, especially when the amount involved is small and when the result arrived at does not shock our sense of justice.

Judgment affirmed, with costs.