Dunn v. O'Keefe — 31 N.Y. St. Rep. 311

Majority

p. 311

James Dunn, Resp’t, v. John O’Keefe, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 26, 1890.)

Headnote

1. Justice’s court—Practice.

The summons was returnable at nine a. m. The justice called the case at 9:45, but waited until ten before proceeding. Held, a compliance with the statute as to waiting one hour.

2. Negligence—Damages.

Plaintiff’s wagon was broken by defendant’s alleged negligence. After the accident defendant told plaintiff to have it repaired and he would pay the cost. Held, a substantial confession of negligence and agreement as to the measure* of damage.

Appeal from the judgment of the Washington county court, affirming a judgment of a justice of the peace.

C. B. Patterson, for app’lt; F. A. Pratt, for resp’t.

The defendant did not appear in the justice’s court. The summons was returnable at nine A. M. The justice called the case at 9:45 A. M., but waited until ten before proceeding with it. This was a compliance with the statute which requires the justice to wait one hour. Code Civ. Pro., § 2893.

The plaintiff’s testimony tended to prove his case. The circumstances detailed justified the inference that the plaintiff was free from negligence and that his wagon was broken by means of the defendant’s negligence. The defendant, in his subsequent conversation with plaintiff, requested him to have the wagon repaired and promised to pay the cost thereof.

This was a substantial confession of his negligence and an agree

p. 312

ment as. Jto the measure of damages. The plaintiff acted upon it. Substantial justice was done.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.