Huested v. Bliss — 42 N.Y. St. Rep. 78

Majority

p. 78

Charles E. Huested and Frank W. Clark, Resp’ts, v. Willard D. Bliss, App’lt.

(Supreme Court, General Term, Third Department,

Filed December 8, 1891.)

Headnote

Justice’s court—Modification of judgment on appeal.

Plaintiff recovered judgment for fifty dollars in justice’s court for a. balance claimed on sale of goods. In arriving at that sum credits were allowed, but not for two items of hay, the amounts of which were not carried out. Held, that there was no data from which the county court could modify the judgment on appeal; that if defendant sought such modification he should have appealed for a new trial.

Appeal from the Rensselaer county court, affirming the judgment of a justice’s court in favor of the plaintiff.

George McClellan, for app’lt; Nelson Webster, for resp’ts.

The return of the justice of the peace before-whom this action was tried, and which constitutes the record on which this appeal was heard in the county court, and the record on this appeal shows that the plaintiffs, in their complaint, demanded judgment for seventy-five dollars. The answer was a general denial. On the trial the plaintiffs presented a bill of items-of merchandise, amounting in the aggregate to $103.71, with credits endorsed thereon of $47.19, leaving a balance as struck on such bill of $56.52.

Charles E. Huested, one of the plaintiffs, was sworn as a witness on the trial, and testified that the plaintiffs sold goods as set out in the bill, amounting in the aggregate to $103.71. He also testified to credits of $47.19. This evidence was received without objection. The defendant offered no evidence. The bill contains one credit in this form: “ 1734 hay,” with no other description or designation, and with no amount carried out as to value, and one of “ 1890 hay,” with no other designation and no price or value attached. Ho other evidence was given or offered as to these credits.

On this evidence the jury rendered a verdict in favor of the plaintiff for $56.52, and the plaintiff remitted the $6.52, and the

p. 79

justice thereupon entered a judgment in favor of the plaintiff for §50, and costs. There was no error committed by the justice for which this judgment should be reversed. But the appellant now insists that as it was quite apparent that the defendant got no credit for the hay mentioned in the bill, the county court should under the provisions of § 3066 of the Code have modified the judgment so as to give credit for the hay or sent the case back for a new trial before the justice.

We cannot agree with the appellant in this contention. The county court had no data from which it could have modified the judgment, and as the defendant might have appealed for a new trial, and thus secured a more favorable judgment, if entitled to such a result,, it is his own fault that he sought to redress his ■supposed wrong by an appeal upon questions of law, and not for a new trial. The judgment must be affirmed.

Judgment affirmed, with costs.

Learned, P. J., and Kellogg, J., concur.