Thompson v. Pine — 12 N.Y. Sup. Ct. 647

Majority

p. 647

GEORGE W. THOMPSON, Respondent, v. HARVEY PINE, Appellant.

Headnote

Code,% 352 — power of Oounty Court to strikeout answer on appeal from Justice's Court.

Although, under section 352 of the Code, making the right to a new trial depend on the amount of the claim of the parties, the defendant may take an undue advantage by setting up a claim fictitious in amount, yet the Oounty Court has no right to strike out the answer, or a part of the answer, when the action has been tried in a Justice’s Court. . (Fuller v. Brierley, 36 How., 47 .)

The pleadings must stand as they were in the court below, because upon them depend certain rights of the parties in the County Court.

p. 648

Appeal from an order of the County Court of Rensselaer county, striking out a counter-claim interposed by the defendant in this action, commenced in a Justice’s Court.

H. B. Stiles, for appellant. Samuel Foster, for respondent.

Opinion

Present — Leaened, P. J., BoaedMan and Bocees, JJ.

Order reversed with ten dollars costs and printing disbursements, and motion denied with five dollars costs.