(90 Hun, 462.)

#### SHERMAN et al. v. GREEN.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

Appeal from Justice’s Court—Transcript—Amendment.

Code Civ. Proc. § 2990, relating to trials in justice courts, provides that, unless a jury trial be demanded at the time.of the joining of issue, the right to trial by jury shall be deemed waived. *Held,*that where, on appeal from a justice’s judgment, the entries in the justice’s transcript leave it uncertain as to whether a jury was demanded on the day of joinder of issue, or on a subsequent day, to which the trial was adjourned, it is error for the county court to deny a motion to require the justice to amend his return so as to show exactly when the demand for a jury was made.

Appeal from Washington county court.

Action by Grace Blanchard Sherman and another against Joseph Green, commenced in justice’s court, and taken on appeal by defendant to the county court. From an order denying a motion by plaintiffs for an amended return of the justice, and from an order reversing the judgment of the justice, plaintiffs appeal.

Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Frederick W. Sherman, for appellants.

J. B. McCormick, for respondent.

HERRICK, J.

The plaintiffs recovered a judgment in a justice’s court against the defendant. The defendant appealed therefrom to the county court. The justice, in his return, under the record of proceedings at the joining of issue, has these words: “Defendant appeared in person and by counsel, and filed an answer in writing, and demanded a jury, and stated that they were ready for trial.” The words “and demanded a jury” had a line drawn through them in the return, as filed, and upon the margin of the return appeared these words: “Defendant asks for a trial by jury, and asked that a venire be issued in the usual form required by the Code.” On the return of the second day’s proceedings, these words appeared: “The defendant insists upon a trial by jury, and asks that the venire be issued in the usual form. That a jury was demanded by the defendant at the joinder of issue of the trial. Defendant objects to proceeding to trial in this issue without a jury, and now tenders therefor $1.75 for such jury. Plaintiffs object to the allowance of the jury, on the ground that the defendant joined issue and took an adjournment without making any demand therefor.” It does not appear whether the demand for a jury by the defendant, which appeared upon the margin of the return, was intended as a record of the proceedings of the day of the joinder of issue, or the proceedings upon the adjourned day. The plaintiffs insist that that refers to the demand made at the adjourned day. The defendant claims that it was the demand made at the joinder of issue. The plaintiffs made a motion to the county court for a further or amended return, which should show when this demand for a jury was made; claiming that the demand made at the joinder of issue had been waived by the defendant, and the demand set forth in the margin referred to the demand *54made by Mm upon the adjourned day. The motion for a further return was denied, and the judgment reversed upon the ground that the defendant had been improperly deprived of a trial by jury of the issue in the action. The motion for an amended return was denied upon the ground that there was no power in the court to compel the justice to make an amended return which would contradict the original return.

Section 2990 of the Code of Civil Procedure provides that, unless a jury trial is demanded at the time of the joining of issue, the right to trial by jury shall be deemed waived. It will be seen, therefore, that it is important to have returned to the court the fact whether such demand for a trial by jury was made by the defendant at the time of joining of issue, and, if so, whether it was waived. The entry in the margin of the justice’s return leaves these questions unsettled. From the position of the entry upon the record, .it leaves it uncertain as to whether it refers to the day of the joinder of issue, or to the proceedings had upon the day to which the trial was adjourned. To ask the justice to make a return which will clear up this uncertainty is not to ask him to contradict or falsify his original return, but to cure it of all uncertainty; and it therefore does not come within the principle of the cases cited to us, that a justice cannot be asked to make an amended return which will falsify or contradict the one originally made by him.

The order of the county judge denying the further amended return should therefore be reversed, and an order made requiring such further or amended return as asked for in the plaintiffs’ notice of motion therefor; and the judgment of the county judge reversing the judgment should be reversed, with directions to the county, court to hear the appeal upon the return of the justice as amended and corrected. Let an order be entered accordingly, with costs and disbursements of this appeal. All concur.