Longrill v. Downey — 7 N.Y.S. 503

Majority

p. 503

Longrill v. Downey.

(Superior Court of Buffalo, General Term.

November 19, 1889.)

Headnote

1. Appeals from Justices—Amendment—Trial De Novo.

On an appeal from a justice of the peace the court cannot allow an amendment demanding judgment for more than §50, so as to entitle appellant to a new trial,

p. 504

as allowed by Code Civil Proo. N. Y. § 3068, where more than that sum is demanded by the pleadings of either party, as the case must be disposed of on the pleadings as they left the trial court.

3. Security for Costs—Municipal Court of Buffalo.

As the municipal court of Buffalo is not a court of record, it cannot, under Code Civil Proc. N. Y. § 3268, require non-resident plaintiffs to give security for costs.

Appeal from municipal court.

John A. Longrill brought an action and recovered judgment against John Downey, in the municipal court of Buffalo, for $25. The latter appealed, and moved the superior court to allow him to amend his answer to claim judgment for a sum exceeding $50, that he might have a trial de nova, as provided in cases of appeals from justices, by Code Civil Proc. H. Y. § 3068. Acts H. Y. 1880, c. 344, § 6, makes the practice in justices’ courts applicable to the municipal court of Buffalo.

Argued before Beckwith, C. J., and Titus and Hatch, JJ.

• O. O. Be Witt, for appellant. John M. Chipman, for respondent.

In the court below the plaintiff demanded in his complaint, and obtained a judgment for, $33.48 damages. In his notice of appeal the defendant demands a new trial in this court, and on the argument asks to be allowed to amend his answer by setting up a demand for judgment-for a sum exceeding $50, to enable him to have a new trial in this court. We do not think this court has the power to allow an amendment to his answer, demanding judgment for more than $50, so as to entitle him to a new trial here. His right to a new trial depends upon the demand for judgment in the court below, and was fixed by the pleadings as they left that court. Section 3068, Code Civil Proc.; Kimball v. Rich, 3 N. Y. Supp. 248 .

Although be is not entitled to a new trial, we may look at the return to see if any error was committed for which the judgment should be set aside. Kimball v. Rich, supra.

The only question raised by the defendant on the argument is that the municipal court should have ordered the plaintiff, who is a non-resident, to give security for costs. It is not the law, in courts not of record, to require the plaintiff in such cases to give security for costs. The counsel refers to no authority in support of his claim, and in the absence of any statutory provision declaring the municipal court a court of record, so as to bring it within section 3268 of the Code, we do not think the legislature so intended it. The judgment must therefore be affirmed, with costs.