#### THOMPSON v. SHERIDAN et al.

(Supreme Court, General Term, Fourth Department.

July, 1894.)

Justices op the Peace—Appearance by Dependant.

Where a defendant appears before a justice of the peace on the return day of the summons, after the hour limited for his appearance, and after plaintiff has given his evidence, but while plaintiff is still present, but before judgment has been entered, it is error for the justice to refuse to allow defendant to appeal' and answer.

Appeal from Cortland county court.

Action by C. Fred Thompson against Kate Sheridan and another for goods sold and delivered. There was a judgment in favor of plaintiff, and defendant Sheridan appeals.

Reversed.

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

J. & T. E. Courtney, for appellant.

E. E. Mellon, for respondent.

MARTIN, J.

This action was commenced before Dorr C. Smith, Esq., one of the justices of the peace of the town of Cortlandville, N. Y., to recover $64.70, and interest, for goods, wares, and merchandise sold and delivered to the defendant. The summons was issued May 3, 1893, and made returnable on the 12th of the same month, at 1 o’clock p. m. It was personally served on both of the defendants May 5th. Upon the day the summons was returnable, the justice rendered a judgment in favor of the plaintiff for $67.97.

*869The appellant claims that, before such judgment was rendered, the defendant, Kate Sheridan, appeared before the justice by counsel, and asked to be allowed to appear and answer. This was refused, and, from the judgment entered by the justice, Kate Sheridan appealed to the Cortland county court. That court affirmed the judgment of the justice, with costs. One of the principal and most important questions in this case is whether the court properly declined to allow the defendant to appear and answer. Upon the hearing of the appeal in the county court, affidavits were read, both upon the part of the appellant and upon the part of the respondent, as to what occurred at the time the appellant appeared before the justice. These affidavits are in direct conflict. We, however, concur in the suggestion of the respondent’s counsel that the facts stated in the justice’s return could not be controverted by affidavits, but that the return is conclusive as to the facts contained in it, and that in determining this question the return of the justice must alone be considered. In Barber v. Stettheimer, 13 Hun, 198,. it was held that, upon an appeal to the county court from a judgment of a justice of the peace, the truthfulness of the justice’s return, if it be fully responsive to the notice of appeal, cannot be questioned nor controverted by affidavits, nor can a further return be required as to the truth of matters in respect to which the original return is controverted by affidavits. If the return be false, the remedy of the party aggrieved thereby is by an action against the justice. In Fitzgerald v. Fitzgerald, 25 Hun, 319, and Collier v. Van Hoesen, 6 Wkly. Dig. 49, the same doctrine was held. On appeal, affidavits in support of allegations of error in fact cannot, be read, when they relate to any matter within the knowledge of the justice. The facts must appear by the return. Gibbons v. Van Alstyne (Sup.) 9 N. Y. Supp. 156.

In the justice’s return in this case, it was stated :

> “May 12. Case duly called at 1 p. m. Plaintiff appeared in person, and made oral complaint herein, demanding judgment against the defendants for the sum of $64.70, and interest thereon from January 18, 1893, and costs, for goods, wares, and merchandise sold and delivered to the defendants, at their request, and on their promise to pay therefor, to the amount, value, and agreed price of $64.70, with interest as above. Neither of the defendants appeared, and, after waiting one hora, neither of the defendants appearing, and the plaintiff being ready, I proceeded to the trial of this action. The plaintiff was sworn as a witness in his own behalf. No other evidence offered, and evidence closed. After the plaintiff had rested, and the evidence was closed, and five minutes after two o’clock p. m., T. E. Courtney, Esq., came into my office and asked to be allowed to appear and answer for the defendant Mrs. William Sheridan, swore to his authority to appear for her, and offered to pay plaintiff’s costs herein made on this, the return day of the summons. The plaintiff was present, and objected, and refused to allow Mr. Courtney to so appear and answer, and asked that judgment be rendered and entered herein, to which the defendant excepted. Whereupon, I did immediately, and on this 12th day of May, 1893, render and enter judgment herein in favor of the plaintiff, and against the defendants, for the sum of $67.97, to wit: Damages, $65.67; costs, $2.30; judgment, $67.97. All of

> which is respectfully returned.

> “Dated, Cortlandville, N. Y., June 20, 1893.

> “Dorr C. Smith, Justice of the Peace.

> Indorsed: “Filed June 27, 1893. S. K. Jones, Clerk.”

*870Thus by the return it plainly appears that before the judgment was entered, and while the plaintiff was present, the defendant appeared and asked to be allowed to appear and answer, and that, upon the objection of the plaintiff, this request was denied, and judgment was subsequently entered. Thus the question presented is whether, where a defendant appears before a justice of the peace on the return day, while the plaintiff is present, and asks to appear and answer, the justice can properly refuse to permit him to do so. In Atwood v. Austin, 16 Johns. 180, it was held that where a defendant in a justice’s court is ready in court to prove his defense, at the time that the plaintiff closes his case, he ought to be allowed to enter into it, although he was not present when the trial commenced. In that case the judgment was reversed because the justice declined to permit the defendant to prove his defense. That case was before the Revised Statutes went into effect, which, so far as they affect this question, were in all their essential particulars like the provisions of section 2934 of the Code of Civil Procedure. After the Revised Statutes, this question arose in the case of Pickert v. Dexter, 12 Wend. 150, where, upon the return of a summons in a justice’s court, after waiting 1 hour and 20 minutes, the plaintiff exhibited his declaration, proceeded to the proof of his demand by examining two witnesses, and then (1-1 hours after the time specified in the summons for appearance) the defendant appeared, and asked leave to plead, offering to pay all costs, and the justice refused such leave, only permitting him to cross-examine the plaintiff’s witnesses. It was held that the refusal of the justice was error, and a judgment of the common pleas, reversing the justice’s judgment, was affirmed by the supreme court. In delivering the opinion in that case, Nelson, J., referring to the case of Atwood v. Austin, said:

> “The case of Atwood v. Austin I think unexceptionable, and am of opinion it should be observed in proceedings under the Revised Statutes.”

We have been cited to no recent case where this question has been decided, nor have we found any. We are unable, however, to see any good reason why the doctrine of the cases cited should not be applied under the statute as it now stands, as well as under the Revised Statutes, and are of the opinion that where a defendant appears before a justice of the peace on the return day, before a judgment is rendered, while the plaintiff is still present, and asks to be permitted to appear and defend, it is error for the court to refuse. We agree with the respondent’s counsel that parties should not be encouraged to appeal from judgments in justices’ courts where the error complained of is trivial or technical, not affecting the merits, and where substantial justice has been done. But, where a defendant is erroneously deprived of his right to appear and defend an action, we think the error is neither trivial nor technical, and cannot be disregarded upon the ground that it did not affect the merits, or that substantial justice has been done. We think the judgment of the county court should be reversed. Judgment of the county court and of the justice’s court reversed, with costs of this appeal and costs in the county court to the appellant. All concur.