Dennis v. . Crittenden

Earl, Ch. J. The plaintiff was appointed receiver of the property of the original defendant, Louis Baron, in proceedings supplementary to execution and commenced this .action in Justice’s Court to recover possession of a piano. The plaintiff, to lay the foundation for his action, presented an affidavit in which all that was stated as to the value of the piano, is as follows : “ That the actual value of said property, according to this deponent’s best judgment and belief, is $100.” Before answering in Justice’s Court, the defendant took the objection, that the affidavit was defective in not stating that the value of the piano “ did not exceed the sum of $100.” The defendant in his answer stated that the piano was worth $300, and that the justice, therefore, did not have jurisdiction of the subject-matter of the action. The plaintiff recovered a judgment in Justice’s Court. His own evidence showed the value of the piano to be $180, at which sum the jury assessed its value. The defendant appealed to the Monroe County Court, where the cause was retried. The defendant again objected to the jurisdiction of the court and the sufficiency of the affidavit, on account of the value of the property. The court overruled the objection and the jury again found for the ulaintiff, assessing the value of the property at $200. From the judgment of the County Court the defendant appealed to the Supreme Court, and it reversed the judgment of the County Court and of the justice, and ordered restitution of the piano. From the judgment of the *545 Supreme Court at General Term, the plaintiff has by permission appealed to this court. Since the appeal to this court, Baron died, and the defendant was substituted in his place as his administratrix. Section 53 of the Code provides that justices of the peace shall have civil jurisdiction in the actions specified in ten subdivisions of that section, the tenth of which is as follows: “ An action to recover the possession of personal property claimed, the value of which as stated in the affidavit of the plaintiff, his agent or attorney, shall not exceed the sum of $100.” It is then provided, in the same subdivision, that before any process shall be issued in such action, the plaintiff shall make proof by affidavit, showing, among other things, “ the actual value ” of the property claimed. The true construction of this section, so far as the question under consideration is concerned, seems to me quite clear. All that is required in the affidavit, as to value, is that the actual value be stated, and if the value as thus stated does not exceed $100, then it presents a case within the jurisdiction of the justice. It is not required of the affidavit that it shall in terms state that the value of the property does “ not exceed the sum of $100.” This language does not appear in that portion of the section which specifies what shall be shown by the affidavit, but in that portion of the section conferring the jurisdiction in this class of actions. The object was to confer jurisdiction where the value of the property did not exceed $100, and this fact must appear in the affidavit. Where an affidavit states “ the actual value ” under the requirements of this section, it is not a fair criticism, that it may be worth much more, and that all the affiant means is, that it is worth as much as the sum which he names as the actual value. When a witness under oath is called upon to state the actual value of property, he can be indicted for perjury, if he know-' ingly and corruptly over-states or under-states its value. Hence, I am of the opinion that the affidavit was sufficient. But the action should have been dismissed for the want of jurisdiction, upon the ground that it appeared upon the trial *546 that the piano exceeded. $100 in value. If a plaintiff should swear ignorantly, innocently or corruptly, that the property claimed ivas worth not to exceed $100, and it should appear upon the trial to be worth $500, it would be a case beyond the jurisdiction of the justice, and he would be bound to dismiss it; and this he could do at any stage of the trial, either when it so appeared upon the evidence or when the jury found it. In this case it appeared, by the undisputed evidence on both trials, and by the findings of the juries, that the piano was worth more than $100, and for this reason the plaintiff should have been defeated. Baron had been divorced from a former wife, who was still living, on account of his adultery, and he was forbidden to marry again during her life. For several years before the trial, he had lived and cohabited with Matilda Fisher, had children by her, and called her his wife; but there was no direct or express proof that they were married. The defendant, in his answer, alleged that the piano belonged to her, and 'on the trial he offered her as a witness in his behalf. She was objected to by plaintiff, and excluded by the court, on the ground, that while- she was not the lawful wife of Baron, her relations to him were such as to bring her within the principle excluding the wife. In this, I thinlc, the County Court erred. As Baron conld not contract a legal marriage (2 R. S., 141, § 49), his intercourse with the -woman Fisher was adulterous and their children were illegitimate. She was in no sense recognized by the law as his wife. The exclusion of the wife, as a witness for or against her husband, depended, before the recent law, upon reasons of public policy, applicable solely to cases where the lawful relation of husband and wife existed. (Hasbrouck v. Vandervoort, 5 Seld., 153; People v. Mercien, 8 Paige, 50; Batsthews v. Golindo, 15 Eng. Com. Law., 88.) The rule was, that the witness Aras not to be excluded unless de jure the Avife of the party. I therefore reach the conclusion, upon both grounds, that there was error in the County Court, and that the judgment of the General Term must be affirmed. *547 Sutherland, J., concurred with Earl, Ch, J. Lott, J., thought that, if the affidavit properly stated the property to he worth but $100, the justice was not ousted of jurisdiction by its appearing that the property was in fact worth more than $100. He thought the statute made the jurisdiction of the justice depend exclusively upon the statement of value in the affidavit. He was, therefore, for an affirmance of the order of General Term, reversing the judgment of the County Court; but for modifying it, by ordering a new trial in the County Court. Foster, Hunt, Geover and Ingalls, JJ., concurring with Lott that there should be a new trial in the County Court. Judgment of the General Term affirmed, with the modification that there should be a new trial in the County Court. Smith, J., did not sit.