Bookman-Faye Contractors Co. v. Neu , 15 Misc. 2d 598 ( 1959 )

Henry Tasker, J.

Plaintiff appeals from a judgment of the Justices’ Court, Town of Babylon, in his favor in the amount of $200, rendered by J. Stanley Pease, Justice of the Peace, after trial without a jury. The Justice’s return contains the summons, plaintiff’s bill of particulars setting forth two causes of action, defendant’s notice of appearance, auxiliary papers and a truncated statement of the Justice’s findings. The return fails to indicate upon which of the two causes of action the Justice found for plaintiff; defendant’s alleged oral pleadings are not set forth, nor are the Justice’s minutes appended. The return is insufficient and wholly fails to inform this court of the proceedings below. (Justice Court Act, § 438; Marsh v. Peckham, 245 App. Div. 14.)

Since neither appellant nor respondent have seen fit to move for a further return, and have submitted the appeal upon the record as presently constituted, this court would ordinarily be constrained to affirm the judgment. (Lees v. Sanford, 268 App. Div. 186; Mayo v. Sherwood, 13 N. Y. S. 2d 899.)

In the instant case, however, the inexplicable failure of the Justice to include his minutes and any record of the proceedings had before him, forecloses not only review but also comprehension of the judgment below. (Warner v. Drezelo, 156 Misc. 82.)

Judgment reversed, without costs, and a new trial ordered before Honorable Charles A. Woehning, Justice of the Peace of the Town of Babylon.