Fox v. . the Erie Preserving Company

Earl, J. This action was commenced by the plaintiff as commissioner of highways, in a justice’s court, to recover a penalty for obstructing an alleged highway. The defendant pleaded title and then this action was commenced in the Supreme Court. The complaint in the justice’s court contained no allegation that the defendant was a corporation. The complaint served in the Supreme Court was identical with that before served, except that it contained the allegation “ That the defendant is a corporation duly incorporated under the laws of the State of blew York.” The defendant moved at the Special Term to strike out this allegation, and the motion was granted. The plaintiff then appealed to the General Term, and there the order of the Special Term was reversed, and then it appealed to this court. The Code (§ 2957) provides as follows: “In the new action to be brought after an action before a justice is discontinued by the delivery of an answer and an undertaking, as prescribed in the last six sections of this act, 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.” This section prohibits the plaintiff from alleging in- the Supreme Court a new cause of action, or one different from that alleged before the justice; but it does not prohibit him from making the cause of action upon which he there relied perfect by such new allegations as are needed for the purpose. (Wiggins v. Tallmadge, 7 How. Pr. 405; Tuthill v. Clark, 12 Wend. 207; The People, ex rel. Proctor, v. Albany Com. Pleas, 19 id. 123.) Here the cause of action relied on before *57 the justice was the penalty incurred by the obstruction of the highway, and that is the cause of action alleged in the Supreme Court. The allegation that the defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant. The order should be affirmed, with costs. All concur. Order affirmed.