Waggaman v. Randall ( 1883 )

1. An appeal lies to the General Term from an order of the Circuit Court striking out a plea of title in a landlord and tenant case and remanding the same to the justice of the peace for trial on the merits.

2. When a defective plea of title is strciken out by the Circuit Court and the cause remanded to the justice of the peace the defendant may there file a new or amended plea of title.

Statement oe the Case and Decision oe the Court.

The justice certified the case to the Circuit Court, where the plaintiff moved to strike out the plea of title and remand the cause to the justice for trial on the merits. This motion was sustained, and the cause thereafter coming on for trial before the justice, the defendant filed a perfected plea, averring that he claimed under said Mary E. Stone, in whom he pleaded title. The case being again certified to the Circuit Court for trial on this plea, the plaintiff again moved to strike it out and to remand the cause to the justice for the following reasons :

2d. Because the said defendant Randall elected to stand upon his former plea of title, and cannot file a second plea •or amend his former plea ; and because no amendment to a plea of title or additional plea can lawfully be made.

This motion being sustained, the defendant appealed to the General Term, where the judgment was reversed and the •cause remanded to the Circuit Court for trial upon the plea •of title as amended.