Bradner v. . Howard

Andrews, J. The docket of the justice contains all the particulars necessary to constitute a valid judgment of discontinuance for want of jurisdiction. It shows the service of the summons, the appearance of the parties, the issue, a motion for discontinuance made by the defendant on the ground that the accounts between the parties exceeded $400, the granting of the motion upon the ground upon which it was put, and the items of costs in the action. It also recites that it satisfactorily appeared to the justice from the proof offered, that the accounts of the parties exceeded the sum named. It does not in terms award judgment of discontinuance with costs against the plaintiff, but this is the necessary consequence of the facts stated.. The docket is informal, but technical precision in matters of form is not required in proceedings in justices’ courts, and the rendition of judgment of discontinuance on the .ground stated was we think estab *420 lishecl by tile docket. (Hall v. Tuttle, 6 Hill, 38; Stephens v. Santee, 49 N. Y., 35.) Upon the facts recited., it was the imperative duty of the justice to render judgment of discontinuance against the plaintiff with costs (2 R. S., 236, § 54) and if the contested accounts of both parties, exceeded the sum of $400, the right of the plaintiff to costs in the action afterwards brought for the same cause in the Supreme Court, although the recovery was less than fifty dollars, cannot be questioned. (Code, subd. 3, § 54.) It is claimed however that in fact no proof was made on the trial from which it could appear to the justice that the case was not within his jurisdiction, and it is probably true that the only ground upon which the justice acted in determining the fact, was the assertion by the defendant on moving for a discontinuance, that the accounts of the parties exceeded $400. It is not necessary to decide whether the defendant1 would be concluded by the judgment of discontinuance from questioning the fact and ground upon wdiich it proceeded if the justice had on his own motion, and without the defendant’s intervention, dismissed the case. But we are of opinion that the defendant is precluded from denying that the case was not within the jurisdiction of the justice by the fact recited in the docket, and which though controverted, is sustained by the preponderance of the evidence that the discontinuance was upon his motion, and upon his assertion that the accounts of both parties exceeded the sum named. The defendant against the objection of the plaintiff procured the discontinuance upon this ground, and subjected the plaintiff to a judgment for the costs of the action, and rendered .it necessary for him either to seek his remedy by action in the Supreme Court, or to procure a reversal of the judgment. The plaintiff had a right to repose upon the decision of the justice, and having recovered in the action in the Supreme Court, it is not open to the defendant, in answer to the plaintiff’s claim for costs, to say that the case was in fact within the jurisdiction of the justice, or that the decision of the justice procured on his motion was erroneous. The *421 defendant availed himself of the decision in his favor, and is estopped from questioning it. (Bailey v. Stone, 41 How., 346; Glackin v. Zeller, 52 Barb., 147; Kirk v. Blashfield, 6 N. Y. S. C. R [T. & C.], 509.) The order of the General Term should be affirmed. All concur. Order affirmed.