#### Henry McCarthy, Pl’ff and Resp’t, *v.*Mary Crowley, Def't and App'lt.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Justices court—Appearance.

Where the defendant on the return day of the summons in a justice’s court, was merely sitting in the room, when the case was called, waiting for the return of her son, who had gone out to get an attorney, there was, in contemplation of law no appearance by the defendant on the return day.

2. Same—Appeal—When judgment may be set aside—Code Civ.

Pro., § 3064.

Whether this amounted to an appearance or not, there being an adjournment for an hour to expire (under section 2893 of the Code), the defendant did not appear when the default was actually taken and judgment rendered, and so she came within section 3064 of the Code, which provides “ If the appeal is taken by a defendant who failed to appear before the justice, either upon the return of the summons, or at the time to which the trial of the action is adjourned * * * the appellate court in its discretion may set aside the judgment, etc.”

3. Same—County court—Power to permit amendment of notice of

appeal—Code Civ. Pro., § 3049.

The county court has the power on appeal from a justices’ judgment to permit an amendment of the notice of appeal, under section 3049 of the Code, and the refusal of the county court to exercise such discretion in the case at bar, when the power existed, was error sufficient to justify a reversal of the judgment. '

4. Same—Request for adjournment—When should be granted.

The request of defendant to the justice for an adjournment, to give her an opportunity to get a lawyer, was reasonable and should have been granted.

Appeal from an order of the county court of Westchester county, refusing a motion by defendant’s counsel to amend his notice of appeal from the justices’ judgment, by striking out the demand for a new trial, and to change the same to *816an appeal to open a default, and for a new trial t>efore the j ustice, on the ground that the county court has no power to permit the amendment; and granting the plaintiff’s motion dismissing the appeal.

The defendant was duly served with the summons and a verified complaint. On the return day she went before the justice and asked for an adjournment, which was refused. Her son went through the village looking for counsel, but was not successful, and before he returned to the court, the justice had given judgment against her, from which she appealed to the county court. In her notice of appeal, her attorney by mistake asked for a new trial in the county court, when it turned out that she was not entitled to it, under section 3068 of the Code, because issue had not been joined before the justice.

The respondent then made his motion to dismiss the appeal, because the appellant had asked for a new trial. Upon the hearing of that motion, counsel for the defendant read affidavits .and asked an order of the court to permit him to amend the said notice of appeal. The court refused the motion to amend the appeal, on the ground that the court had no power to permit the amendment of the appeal, regarding the case of *Thorn*v. *Roods*(14 H. Y. State Rep., 345) as a controlling authority, and dismissed the appeal.

*J. S. Millard,*for app’lt; *Wm. H. H. Ely,*for resp’t.

Pratt, J.

If there is no remedy against such practice as appears in this case, it is high time for an amendment to the law regulating procedure in justice’s courts.

The request the defendant made to the justice to wait until she could obtain a lawyer, or adjourn the hearing, was reasonable and should have been granted. There was, in contemplation of law, no appearance by the defendant on the return day; merely sitting by, waiting for her son’s return, was not an appearance. But, however this may be, there was as much of an adjournment for the hour to expire as there was of an appearance, and defendant certainly did not appear when default was taken and judgment rendered. Hence she came within section 3064 of the Code of Civil Procedure, which is as follows:

Section 3064. *“*If the appeal is taken by a defendant who failed to appear before the justice either upon the return of the summons or at the time to which the trial of the action is adjourned. * * * The appellate court, in its dis-

cretion, may set aside the judgment, etc.”

I think it clear, within the authorities, that the defendant did not appear on the return of the summons. 2 Wait’s Pr., 217; 5 Don, 5862.'

We also think it was within the power of the county court to permit an amendment of the notice of appeal under section 3049 of Code of Civil Procedure.

The default had been satisfactorily excused, and it seems manifest that injustice had been done, and the proper course would seem to have been for the county court to have directed a new trial; at all events, a refusal to exercise dis*817cretion upon the matter was error sufficient to permit a reversal *of*the judgment, without costs to either party.

All concur.