Lougrill v. Downey — 27 N.Y. St. Rep. 51

Majority

p. 51

John A. Lougrill, Resp’t, v. John Downey, App’lt.

(Superior Court of Buffalo, General Term,

Filed November 19, 1889.)

Headnote

1. Appeal—Pleadings cannot be amended on appeal so as to give a BIGHT TO A NEW TBIAL.

On appeal from the municipal court, the superior court of Buffalo has no power to amend the answer so as to entitle the defendant to a new trial. The right to a new trial is fixed by the pleadings as they were in the court below.

2. Costs—Secubitt fob—Cannot be bequibed in courts not of record.

The municipal court of Buffalo being a court not of record, a nonresident plaintiff cannot be required to give security for costs in an action in that court.

Appeal from judgment of the municipal court of Buffalo, in favor of the plaintiff.

O. C. De Witt, for app’lt; J. M. Chipman, for resp’t.

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-fifty dollars, to enable him to have a new trial in this court. We do not think the court has the power to allow an amendment to his answer demanding judgment for more than fifty dolh.rs, 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. § 3068, Code Civil Pro.; Kimball v. Rich, 20 N. Y. State Rep., 158.

Although he 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

p. 52

it within § 3268 of the Code, we do not think the legislature so intended it.

The judgment must, therefore, he affirmed, with costs.

Beckwith, Ch. J., Hatch and Titus, JJ., concur.