#### HELMICK v. CHURCHILL.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

Justices of the Peace—Discharging Jury on Default of Party.

Where defendant, in an action in a justice’s court, demanded a jury trial, but failed to appear on the day set for trial, the justice may discharge the jury and hear plaintiff’s proofs.

Appeal from Chautauqua county court.

*1029Action by Frank J. Helmick against Lester Churchill for work done and for breach of contract. From a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before LEWIS, BEADLET, WARD, and ADAMS, JJ.

James L. Weeks, for appellant.

Dewitt C. Rielly, for respondent.

WARD, J.

Upon the return day of the summons issued by the justice, the plaintiff complained in an action on contract, and sought to recover for work and labor done for the defendant, and for damages by reason of a breach of contract to remove for defendant certain buildings and tools, and demanded judgment for §30 and costs. The defendant answered, denying each and every allegation contained in the complaint, and demanded a jury for a trial of the issue. A jury was drawn, sworn, and the trial was had before them; but they were unable to agree, and were discharged. The parties agreed that another jury should be drawn for an adjourned day that was fixed. A venire was issued by the justice for the adjourned day, and upon that day a jury appeared, but were not sworn. The plaintiff appeared, but the defendant did not; and the justice, after waiting 1 hour and 20 minutes, dismissed the jury, and proceeded to try the cause, and heard the proofs and allegations of the plaintiff, and rendered a judgment for him for §29 damages and costs. The appellant alleges, as errors, that the justice had no jurisdiction to try the cause, but should have impaneled and sworn the jury, and had the evidence submitted to them, and taken their verdict; also, that the evidence was insufficient to justify the judgment, and the justice adopted a wrong measure of damages.

Although the defendant had demanded a jury, he could waive such jury by consent in open court (Hosford v. Carter, 10 Abb. Prac. 452); and he could also waive the jury by his neglect to appear on adjourn day, and the justice could proceed to hear ti?e cause without jury (Kilpatrick v. Carr, 3 Abb. Prac. 117). Code Civ. Proc. § 2995, provides for the drawing of the jury, and if a person whose name is drawn is challenged and set aside, or is excused, another ballot must be drawn, and so on successively until the required number of jurors is obtained, and that the parties might elect to try the cause by a less number than six jurors, etc. The Code contemplates the presence of both parties when the jury is to be selected. If the plaintiff abandons the case, it is dismissed, and the jury is discharged. If the defendant fails to appear, the plaintiff is not turned out of court, but may proceed without a jury. The appellant cites section 28G1 of the Code of Civil Procedure, which provides that a justice of the peace has such jurisdiction in civil actions as is specially conferred upon him by statute, and no other, and then cites section 2989 of the Code, which provides that, where an issue of fact has been joined, if neither party demands a trial by jury, the justice must try the issue, and. hear the allegations and proofs of the parties. These sections must be construed in connection with the other provisions of the Code upon the subject, and considered in *1030the light of the purpose of the statute providing for trials in justice court. That purpose, manifestly, is to confer upon a party the right to a jury trial where he continued in the contest to the end, but not where he is in default, and abandons the action and the court in which it is pending. We are of the opinion that there was no error in the proceeding of the justice in this regard.

As to the other question raised by this appeal, we have examined the evidence, and while it is not very full or conclusive, it is sufficient, uncontradicted, if credited by the justice, to sustain his judgment. The appellate courts will not be astute to discover errors in proceedings of a justice of the peace in cases of default, where a defendant, refusing to attend upon a trial, awaits his chance of finding some error by which the judgment can be reversed; and the rule is well stated in Schoonmaker v. Spencer, 54 N. Y. 366, that it is the uniform practice of the courts, in reviewing proceedings had before a justice of the peace, if possible, to sustain them by every reasonable and warrantable intendment.

The judgment appealed from should be affirmed, with costs. All concur.