#### William Armstrong, Resp’t, *v.*Harvey Sanford, App’lt.

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

*Filed June 2, 1891.)*

Justice’s court—Appeal — County court cannot open reversal on AFFIDAVITS.

The county court has no power after having reversed the judgment of a justice of the peace, by a judgment duly entered, to open the same upon affidavits relating to the legal questions involved.

Appeal from a judgment of the county court of Niagara county, entered December 81, 1889, setting aside its previous decision and judgment, and affirming a judgment of a justice of the peace.

*Adelbert Moot,*for app’lt; *George Wing,*for resp’t.

Macomber, J.

This action was originally brought before a .justice of the peace to recover the sum of seventy-five cents, being the amount of three trips at twenty-five cents each, taken by the defendant in a vehicle owned by the plaintiff, who claimed to be a common carrier, between the railroad station on the Rome, Watertown & Ogdensburg railroad, in Lewiston, and the village of Lewiston in Niagara county.

The answer consists of a general denial and an allegation to the effect that the defendant “ brought a cause of action against this plaintiff to recover damages upon or for breach of a contract; that this plaintiff then neglected to interpose any counterclaim and no counterclaim was, in fact, pleaded to said cause of action.”

Upon the trial proof was offered to the effect that in the month cf July, 1888, a year after the alleged indebtedness accrued to the plaintiff, a summons was issued in favor of this defendant *320against this plaintiff, and that the same was served, but under objection made by the plaintiff’s counsel each proposition was excluded, and the offer of proof seems to have gone no farther.

Whether this answer so made and such offer of proof would justify the county court in reversing the judgment, is not before-us, for upon appeal by the defendant to that tribunal such judgment was reversed. Upon a rehearing, which appears to have been had upon affidavits tending to show that the answer and offer of evidence in the justice’s court was not sincere, but a sham, the learned county judge has reversed his former judgment and affirmed the judgment of the justice of the peace.

In our opinion the county judge had no power, in disposing of the questions before him, to hear and act upon affidavits explaining away and defeating the purpose for which t\e evidence before the justice of the peace was offered. Accordingly, the argument addressed to us by the learned counsel for the respondent to the effect that the answer and the proofs offered thereunder, before the magistrate, were not competent, cannot be taken into the account. Had the present respondent appealed from the original judgment of the county court reversing the determination of the j ustice of the peace, this argument would be entitled to much consideration, and would require an. expression of our views thereon; but at the present time we do not deem it opportune, and therefore content ourselves with de.termining the question solely as to the power of the county judge, having once reversed the justice of the peace by a judgment duly entered in the county court, to open the same upon affidavits relating to the legal questions involved, and denying the existence of that power.

The judgment appealed from should be reversed, but without prejudice to any appeal which the plaintiff may prosecute from the original judgment of the county court, provided the same may yet be timely taken.

Dwight, P. J., concurs.