Argersinger v. Levor — 28 N.Y. St. Rep. 212

Majority

p. 212

Jacob Argersinger, Resp’t, v. Gustave Levor, App’lt.

(Supreme Court, General Term, Third Department,

Filed December 11, 1889).

Headnote

Pleading—Amendment—Assault—Animals.

A complaint in justice’s court charged an assault upon plaintiff “by the .defendant and his dog.” No objection to the jurisdiction was made there. The trial showed that defendant’s dog was vicious and bit plaintiff. It did not show any assault by defendant upon plaintiff. Upon appeal, upon the law, to the county court, that court allowed plaintiff to amend his complaint so as to allege only that the dog bit plaintiff, that it was vicious and known to be so by defendant. Held, that the amendment did .- < not change the “claim” in litigation and was.properly allowed.

Appeal from the judgment of the Fulton county court affirming a judgment in favor of the plaintiff rendered upon trial in ■a justice’s court.

E. A. Spencer, for app’lt; A. J. Nellis, for resp’t.

The complaint in the justice’s court charged an assault upon the plaintiff “ by the defendant'and his dog.” No objection was taken upon the trial to the jurisdiction of the justice. Thé evidence tended to show that the defendant’s dog bit the plaintiff, and that the dog was vicious and known to be so .by the defendant. There was no evidence of any assault by the defendant. Upon appeal to the county court, upon the law only, the county court, upon motion of the plaintiff, permitted the complaint to be amended so as to charge that the defendant’s dog, being vicious and known to the defendant to be so, bit the plaintiff. We thirik the judgment and order of the county court can be upheld.

The justice’s court had no jurisdiction of an action of assault and battery. Code Civ. Pro., § 2863. But no .such action was tried. That such a cause of action was stated in the complaint did not deprive the justice of jurisdiction of the cause of action which he did try. The latter cause of action was so far set forth in the complaint as to induce the parties to try it, and when the county-court permitted the complaint to be amended, it did not permit a change of the cause of action actually tried, but simply conformed the complaint to it. The amendment did not change the “claim” in litigation. Code Civ. Pro., §§ 723, 3347, sub. 6. Substantial justice was thus promoted. As the justice did not in. fact exceed his jurisdiction it was proper that the record should be kept within it.

Judgment affirmed, with costs.

Learned, P. J., and Fish, J., concur.