#### Merritt Knight, App’lt, *v.*Fowler Willson, Jr., Resp’t.

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

*Filed February 15, 1890.)*

Justice’s court—Justice presumed to have complied with statute as TO WAITING ONE HOUR.

Where the return of the justice does not state affirmatively that he waited one hour after the time specified in the summons, no presumption arises that he did not so wait; if such was the fact, the appellant should procure an amended return plainly showing such failure.

Appeal from judgment of Oneida county court.

*M. N.*Willson, for app’lt; *Willson &■ Powers,*for resp’t

Martin, J.

This is an appeal from a judgment of the Oneida county court reversing a judgment rendered by a justice of the peace. The judgment was reversed on the sole ground that the justice erred in not waiting one hour after the time specified in the summons for its return, as required by § 2893 of the Code of Civil Procedure.

The justice’s return, upon which the appeal was heard, states: *“*At the time and place mentioned in the summons for. the return thereof I called the names of the parties. The plaintiff appeared. The defendant did not appear. The plaintiff complains orally that the defendant is indebted,” etc. There was no further statement in the return bearing upon the question of whether the justice waited an hour as required by the statute. The learned county judge was of the opinion that the return should have shown affirmatively that the justice waited the required time, and that, in the absence of any statement in the return showing that fact, it was to be presumed that the justice did not comply with the statute, and on that ground the judgment was reversed.

“ It has been the uniform practice of the courts in reviewing the proceedings had before justices of the peace, to regard them with marked indulgence and liberality in the furtherance of the ends of justice, and, if possible, sustain them by every reasonable and warrantable intendment.” *Schoonmaker*v. *Spencer,*54 N. Y., 370; *Beecher*v. *Kendall,*14 Hun, 329.

In *Stafford*v. *Williams,*4 Denio, 182, it was held that on a *certiorari*to review a justice’s judgment, where the defendant did not appear before the justice, it will be intended that he waited an ■ hour after the time mentioned in the summons before proceeding with the cause, unless the contrary expressly appear. In delivering the opinion in that case Bronson, Oh. J., said: *“*The legal presumption is in favor of the proper discharge of official duty, and we must intend that the proceedings were regular until the contrary plainly appears.”

We think the doctrine of the cases cited is decisive of the question involved in this case. There is nothing in the return to show that the justice did not wait the required time, and we cannot think that the respondent was bound to show affirmatively that this provision of the statute was complied with, but are of the opinion that the burden of showing error in that respect was upon the appellant,. *420who should have obtained an amended return, showing plainly that the justice failed to wait an hour, if such was the fact.

Judgment of the county court reversed, with costs, and judgment of the justice’s court affirmed.

Hardin, P. J., and Merwin, J., concur.