Kilmer v. Messling , 70 Hun 582 ( 1893 )

HERRICK, J.

From an examination of the testimony in this case, I am satisfied that there is sufficient evidence to justify the justice in holding the defendant Messling liable to the plaintiff. The plaintiff was entitled to interest upon his claim. It may be, however, that the justice has made an error in the computation of the amount. The error, however, is so small in amount that I do not think that substantial justice would be done by reversing the judgment of the justice for that reason. Code Civil Proc. §' 3063, says: “The appellate court must render judgment according to the justice of the case, without regard to technical errors, or defects which do not affect the merits.” I do not think that parties should be encouraged to appeal, where the error in amount is trivial, and incur the expense of the appeal themselves, or subject their adversaries to such expense. When substantial justice has been done between the parties the judgment should not be disturbed. The judgment of the county court should be reversed, and that of the justice affirmed, with costs.

MAYHAM, P. J., concurs. PUTNAM, J., not acting.