Van Curen v. Switzer — 33 N.Y. St. Rep. 733

Majority

p. 733

Josiah Van Curen, App’lt, v. Frank Switzer, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1890.)

Headnote

Justices’ court—Pleading—Evidence.

In an action for conversion in justices’ court the answer was a denial, hut it was afterwards amended toy setting up matters in justification. The plaintiff gave evidence tending to show a conversion, but defendant’s evidence in answer thereto was excluded on the ground that the amended answer did not contain a specific denial. . Held, error; that pleadings in justices’ courts are to be liberally construed; that the amended portion of the answer was intended to be in addition to the denial, and that evidence as to all matters constituting a defense should have been admitted.

Appeal by the plaintiff from a judgment of the county court of Steuben county, reversing the judgment in favor of the plaintiff rendered in a justices’ court.

Monroe Wheeler, for app’lt; J. F. Parkhursi, for resp’t.

The action was originally commenced before a justice of the peace in trover for the conversion of a horse. The defendant denied the complaint, and afterwards he amended his answer by setting up various matters in justification. A trial was had and the plaintiff gave evidence tending to show ownership of the horse, a conversion, and the value. The defendant offered evidence for the purpose of establishing his defense, which was objected to and excluded mainly upon the ground that the amended answer not containing a specific denial admitted everything the plaintiff alleged in his complaint. Judgment was rendered for the plaintiff. The county court reversed this judgment without writing an opinion or stating the grounds upon which the reversal was based. The papers tend to show that this horse had been previously sold on an execution; also, that he had been taken on a requisition issued by a justice of the peace in replevin proceedings.

Pleadings in justices’ courts are to he liberally construed. The plaintiff looked upon his cause of action as not admitted, for he gave evidence tending to prove it, and then succeeded in excluding the defendant’s evidence upon the ground that the amended answer superseded the original answer, and that the allegations in the complaint were fully admitted. It is .very clear that the amended portion of the answer was intended by the pleader to be in addition to the denial, and all the matters which might constitute a defense under the original and amended answer should have been admitted. The question as to whether there was a defect in the proofs offered by the defendant is not clearly before this court, as all the previous proceedings do not appear in the case; but so far as can be gathered from the case and briefs, the proofs of all the matters alleged by the defendant would have constituted a defense.

It also appears in this case that the defendant was a constable, and that the taking by him was under a requisition in replevin, regular and valid upon its face. This process was a perfect protection to the defendant, being issued to him as an er.vutive

p. 734

officer by a court having general jurisdiction of the subject-matter. Woolsey v. Morris, 96 N. Y., 315 .

The decision of the county court seems to have been correct, and the judgment must be affirmed.

Dwight, P. J., and Macomber, J., concur.