Kilmer v. Messling — 24 N.Y.S. 343

Majority

p. 343

(70 Hun, 582.)

KILMER v. MESSLING et al.

(Supreme Court, General Term, Third Department.

July 8, 1893.)

Headnote

Appeal prom Justice’s Court—Error in Amount op Judgment—When Disregarded.

Under Civil Code Proe. § 3063, relating to appeals from justice’s court in civil actions, which provides that the appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits, it is error for the county court to reverse a judgment of a justice of the peace because the justice -allowed plaintiff a small amount more interest than he may have been entitled to, since parties should not be encouraged to appeal where the error in amount is trivial, and substantial justice has been done.

Appeal from Rensselaer county court.

Action by Isaac Kilmer against Peter Messling, impleaded with Joseph Acker, on an account, commenced in a justice’s court, and taken, on appeal by defendant Messling, to the county court. From a judgment reversing the judgment of the justice, plaintiff appeals.

Reversed, and judgment of the justice of the peace affirmed.

The action was brought to recover the sum of $40, alleged by plaintiff to be due him for services performed for defendants as partners. There was no service on, or appearance by, defendant Acker. The justice rendered judgment in favor of plaintiff, against defendant Messling, for $31.19 and costs. The services were rendered in 1889, under a contract of employment by the day, without any stipulation as to time of payment. There was evidence that after the work was done there was a settlement, at which it was agreed that there was a balance due plaintiff of $27.53, on which 50 cents was afterwards paid. There was no evidence as to interest, or as to the exact time of the settlement. The date of the judgment by the justice was February 22, 1892.

p. 344

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Nelson Webster, for appellant.

Frederick A. Chew, for respondents.

From an examination of the testimony in this case, I am satisfied that there is sufficient evidence to justify the justice in holding the defendant Messling liable to the plaintiff. The plaintiff was entitled to interest upon his claim. It may be, however, that the justice has made an error in the computation of the amount. The error, however, is so small in amount that I do not think that substantial justice would be done by reversing the judgment of the justice for that reason. Code Civil Proc. §' 3063, says: “The appellate court must render judgment according to the justice of the case, without regard to technical errors, or defects which do not affect the merits.” I do not think that parties should be encouraged to appeal, where the error in amount is trivial, and incur the expense of the appeal themselves, or subject their adversaries to such expense. When substantial justice has been done between the parties the judgment should not be disturbed. The judgment of the county court should be reversed, and that of the justice affirmed, with costs.

MAYHAM, P. J., concurs. PUTNAM, J., not acting.