Appellate Division of the Supreme Court of New York, Third DepartmentMar 1, 1898
27 App. Div. 452 (N.Y. App. Div. 1898)
27 App. Div. 45250 N.Y.S. 353

March Term, 1898.

John P. Roosa, Jr., for the appellant.

William L. Thornton, for the respondent.

We are of opinion that the provisions of section 820 of the Code of Civil Procedure are not applicable to an action originally commenced in a Justice's Court, and afterwards, on a plea of title, transferred to the County Court. Such an action, when thus transferred, although in the County Court a new summons and complaint is served, is regarded as "an action originally commenced in a court of a justice of the peace." ( Cook v. Nellis, 18 N.Y. 126.)

Under the provisions of the Code of Civil Procedure (§§ 2951-2958) the action in the County Court must be deemed the same action originally commenced before the justice and transferred to the County Court. The undertaking served with the answer in the Justice's Court must provide that if the plaintiff within twenty days deposit with the justice a summons and complaint in the proper court for the same cause of action, the defendant will give a written admission of the service thereof. The party succeeding in the County Court is entitled to recover the costs paid by him on the discontinuance of the action by him before the justice; and section 2957 of the Code of Civil Procedure provides that "in the new action to be brought after an action before a justice is discontinued by the delivery of an answer and an undertaking * * * the plaintiff must complain for the same cause of action only upon which he relied before the justice, and the defendant's answer must set up the same defense only which he made before the justice."

Under the provisions of this section it has been held that, although the court to which such an action has been transferred may allow an amendment to the pleading in matters of form, it is not authorized to allow an amendment thereof in matters of substance. ( McGinnis v. Murphy, 23 Wkly. Dig. 215; People ex rel. Proctor v. Albany C.P., 19 Wend. 123.) And if the pleadings in the court to which the action is transferred do not conform in substance to those interposed in the Justice's Court, the party injured may move to strike out the objectionable pleading. ( Tuthill v. Clark, 11 Wend. 642.)

In this case the plaintiff having served a summons and complaint for the same cause of action for which he sought to recover before the justice under the provisions of section 2957 ( supra), the defendant was bound to serve an answer containing the same defense asserted by him in the court below. Had he served an answer containing any other defense than that interposed before the justice, the answer, or the objectionable part thereof, on motion of the plaintiff, would have been stricken out. Had he moved in the County Court for leave to serve an answer containing any other defense, the court would not have been authorized to grant the motion.

But the defendant, in the motion made in the court below, asked for more than a mere amendment to a pleading. He sought to be relieved from the service of an answer; for leave to bring in a new party defendant, and for a discontinuance of the action as to himself.

As the action must be deemed one originally commenced in a court of a justice of the peace, transferred from that court to the County Court, where, under the provisions of the statute, it must be tried under the pleadings setting up the same cause of action and defense only asserted in the Justice's Court, it is evident that it must be continued between the same parties.

As the County Court could not by order allow a change in substance of the pleadings, it must be held that, under the provisions of the Code of Civil Procedure, it had no authority to allow a more important change — the substitution of a new defendant, the withdrawal of the defendant from the action, permission to omit the service of an answer, and the service of a new and original answer by the substituted defendant.

We are also inclined to believe that the motion was properly denied by the court below, for the reason that the answer interposed before the justice did not aver any defense to the action. (See McGiffin v. Baird, 62 N.Y. 329.)

The order should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.