#### McALEER v. WARREN et al.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Appeal—Harmless Error—Modifying Judgment.

In an action in a justice’s court by an assignee a verdict was rendered in favor of the assignor, and judgment was entered thereon. The record showed the assignee as plaintiff, and there was no change of parties. *Held,*that an order of the county court, on appeal taken by plaintiff, modifying the judgment so as to read in favor of plaintiff instead of the assignor, did not prejudice defendant, as plaintiff was entitled to such modification on appeal.

Appeal from Rensselaer county court.

Action by Edward J. McAleer against Willis H. Warren and William H. Buckley to recover on a claim in favor of Thomas Godson & Son against defendants, and assigned to plaintiff. The case was tried before a justice and a jury. The jury found a verdict as follows: “We find in favor of Godson & Son, for their damages, and against the defendants, for $30.” On appeal by plaintiff to the county court the judgment entered on such verdict was amended so as to read in favor of plaintiff, instead of Godson & Son, and defendants appeal. Affirmed.

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

*1001Emmet N. Akin, for appellants.

James G. Patton, for respondent.

PUTNAM, J.

It seems to have been assumed by both parties that the judgment rendered in this action in the justice’s court was not one in favor of plaintiff, but was in favor of Godson & Son, his assignors. In this assumption, we think, the parties were mistaken. The trial before the justice was in an action in which Edward J. McAleer was plaintiff, and Willis H. Warren and William H. Buckley were defendants. The record starts with the title of the cause, and gives a history of the proceedings, and a statement of the testimony given on the trial, and states that the jury rendered a verdict in favor of Godson & Son, instead of plaintiff, and then follows the judgment for $30 damages and $5.25 costs,—in all, $35.25. Mo change of parties was made by the justice. The record discloses no change of the title of the action. The suit on trial, and tried, was one in which Edward J. McAleer was plaintiff. At the end of the trial, judgment was entered as above. Such judgment must be deemed to have been one in favor of plaintiff, and against defendants.- It is difficult to see how it could be regarded as a judgment in favor of Godson & Son, who are not parties to the action, had never appeared therein, and were not before the .court. Of course, the plaintiff, on the trial, on the reception of the verdict, should have requested the justice to direct the jury to correct the evident mistake they made in their verdict, in rendering it in favor of plaintiff’s assignors, instead of plaintiff. But, failing to do so, the verdict remained in favor of Godson & Son, and the judgment in favor of plaintiff.

The defendants, probably, could have successfully appealed from the judgment on the ground that it was unsupported by any verdict. But they have not taken an appeal from the judgment rendered by the. justice, and, such being the case, it should be allowed to stand. It appears, therefore, that it was not necessary for the plaintiff to take an appeal. The judgment rendered was one in his favor. Mor was it necessary for the county court to modify the judgment. But it was modified, without costs; and as it assumes to change the judgment from one in favor of Godson & Son to one in favor of plaintiff, although the judgment was in fact rendered by the justice in favor of plaintiff, defendants were not injured in any manner by the order of the county court. Under the peculiar circumstances of the case,—the defendants not being injured by an order which does not in any way change the situation of the parties,—we think that a proper disposition of the case is to affirm the order or judgment of the county court, without costs. All concur.