Lord & Austin v. Ostrander

By the Court,

Morgan, J.

Under the provisions of the revised statutes relating to pleading and set-offs in justices’ courts, the plaintiffs, who were first sued by the defendant before a justice of the peace, were required to plead or give notice of their claim in this action and avail themselves of it before the justice, or be forever precluded from maintaining any action to recover the same, or any part thereof. (2 R. S. 233, 236, § 57.) The pendency of the suit before the justice would therefore be a bar to this action. (Douglas v. Hoag, 1 John. 283. Townsend v. Chase, 1 Cowen, 115.) But its effect as a har would be obviated by the discontinuance of the prior action before answer in this action. (10 How. P. R. 85. S. C. 10 N. Y. Rep. 500.) It is however claimed by the appellants’ counsel that the erroneous dismissal of the suit before the justice against the remonstrance of this defendant is not equivalent to a voluntary discontinuance of the action by him. It certainly puts an end to the suit, as effectually as though it was dismissed upon the respondent’s motion, so that it is no longer pending, unless it is kept alive by the defendant’s appeal to the county court, from the judgment of dismissal.

But it is obvious that the original action, although erroneously dismissed by the justice, can not be restored. If the county court should reverse the judgment, the suit is no longer available for any purpose whatever, either to sustain a demand or to defeat a set-off. The county court has no jurisdiction to award a new trial, in which the plaintiffs here could avail themselves of their set-off. If, however, it was a case where the county court could award a new trial, either before the justice, or in the appellate court, there are substantial grounds upon which it could be argued that the original action, notwithstanding its dismissal by the justice, was still pending as to any matter in issue or which is required to be put in issue in such action. But this is not such a case. The defendant’s action before the justice is forever gone, and is no longer available as a bar to a pew action commenced against him by the plaintiffs. This was the opinion of the learned referee, and I think he was right, and that the judgment should be affirmed.

[Onondaga General Term, October 4, 1864.

Judgment affirmed.

Morgan, Bacon and Foster, Justices.]