#### UTTER v. NELLIGAN.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

Appeal prom Justice op the Peace—Retrial—Pleading and Proof.

Reply not being necessary in an action before a justice of the peace, and such action, on appeal to the county court, being triable anew on the issues formed by the pleadings in the justice court, payment of a counterclaim subsequent to such an appeal may be shown on retrial in the county court, without amendment of the pleadings.

Appeal from Tompkins county court.

Action by Edward H. Utter against James D. Nelligan. Judgment was entered in favor of plaintiff, and defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Halliday & Denton, for appellant.

Newman & Blood, for respondent.

PER CURIAM.

This is an appeal from a judgment of the Tompkins county court in favor of the plaintiff, and from an order denying a new trial, made upon the minutes of the trial judge. The action was originally commenced in a justice’s court to recover rent for the use of a house and lot owned by the plaintiff. The trial in justice’s court resulted in a judgment for the plaintiff for $19.50 and costs. The defendant appealed to the county court for a new trial, which resulted in a direction of a verdict for the plaintiff for the same amount, with costs. The defendant rented the plaintiff’s house of Joseph Utter and A. J. G-lanister, who were the plaintiff’s *592agents, for 7-¡- months, at $3 per month. He never paid the plaintiff or his agents any portion of the rent, but claimed to have made repairs upon the premises of the value of $112, under an alleged agreement with the plaintiff’s agents to pay him therefor. The agents denied that there was any such agreement except for the allowance of one month’s rent for some slight repairs that he was permitted to make. On September 4, 1894, the defendant brought suit against the plaintiff’s agents to recover for such repairs. The agents set up a general denial, payment, and offset for one month’s rent, and upon the trial in justice’s court, on September 24, 1894, a verdict was rendered for the defendant therein. On the 26th of the same month, this action was brought in justice’s court to recover for 6£ months’ rent. The defendant set up a general denial, payment, and a counterclaim for the same repairs as those upon which he brought action against the plaintiff’s agents. Judgment was. rendered for the plaintiff. In October, 1894, the defendant appealed both of said actions to the Tompkins county court. The action against the plaintiff’s agents was first tried in that court, and. resulted in a verdict of $30 for the plaintiff therein, which sum,, with costs, was paid by the plaintiff in this action on March 9,1895.. In the following May, this action came on for trial before the county court. On the trial the plaintiff proved his claim, and rested. The-defendant then proposed to prove his counterclaim, when it was. conceded that it was the same claim as that upon which the defendant recovered against the plaintiff’s agents, and which was paid by the plaintiff. The defendant, however, objected to the plaintiff’s, proving such payment, upon the ground that there was no supplemental pleading which gave notice of that defense to the counterclaim. This objection was overruled, and the defendant excepted. The plaintiff then proved that the action against his agents was tried, and resulted in a verdict for the plaintiff in that action, who was the defendant in this, and that it was paid by the plaintiff in this action to the defendant’s attorney. After this proof was admitted, the defendant offered proof of his counterclaim, which was. objected to by the plaintiff, and excluded by the court. The court thereupon directed a verdict for the plaintiff for $19.50.

It seems that, upon a new trial in county court on an appeal from a justice’s judgment, the case should be tried upon the issues formed by the pleadings in the justice’s court. Becker v. Barnum, 19 Wkly. Dig. 94; Longrill v. Downey (Super. Buff.) 7 N. *Y.*Supp. 503; Thompson v. Pine, 5 Hun, 647; Hayes v. Kedzie, 11 Hun, 577; Reno v. Millspaugh, 14 Hun, 229. Moreover, it was but just that the parties , upon a retrial should be allowed to introduce the same proof in the county court under the pleadings as they would have been allowed to introduce upon the trial in a justice’s court. If the last trial had been in a justice’s court, no reply being necessary, the plaintiff would have been entitled to prove that the defendant’s counterclaim had been paid. We think the same rule should apply upon a retrial of an action in the county court commenced in a justiceis court. In other words, we think that the samé proof, under the pleadings, should be admissible in the county court as would have • *593been admissible in a justice’s court, and that, under the Code, a party is not required to amend his pleadings in the county court where the proof offered would have been admissible in a justice’s court under the pleadings as they stood. Hence, our conclusion is that, under the pleadings, the plaintiff was entitled to prove that the counterclaim set up by the defendant had been paid; that, under the circumstances of this case, it was not reversible error to reject the defendant’s evidence as to such counterclaim; and that the court properly directed a verdict for the plaintiff.

Judgment and order affirmed, with costs.