Argersinger v. Levor , 61 N.Y. Sup. Ct. 613 ( 1889 )

Landon, J.

The complaint in the justice’s court charged an assault upon the plaintiff “by the defendant and his dog.” No objection was taken upon the trial to the jurisdiction of the justice. The evidence tended to show that the defendant’s dog bit the plaintiff, and that the dog was vicious, and known to be so by the defendant. There was no evidence of any assault by the defendant. Upon appeal to the county court, upon the law only, the county court, upon motion of the plaintiff, permitted the complaint to be amended seas to charge that the defendant’s dog, being vicious and known to the defendant to be so, bit the plaintiff. We think the judgment and order of the county court can be upheld. The justice’s court had no jurisdiction of an action of assault and battery. Code Civil Proc. § 2863. But no such action was tried. That such a cause of action was stated in the complaint did not deprive the justice of jurisdiction of the cause of action which he did try. The latter cause of action was so far set forth in the complaint as to induce the parties to try it, and, when the county court permitted the complaint to be amended, it did not permit a change of the cause of action actually tried, but simply conformed the complaint to it. The amendment did • not change the “claim” in litigation. Id. §§ 723, 3347, subd. 6. Substantial justice was thus promoted. As the justice did not in fact exceed his jurisdiction, it was proper that the record should be kept within it. Judgment affirmed, with costs.