Pitkin v. Clifford

Kellogg, J.: The return of the justice shows the appearance of the plaintiffs and that the defendant did not appear; that the plaintiffs complained by verified complaint and that, after waiting an hour, the defendant not appearing, lie rendered judgment upon the verified complaint. The alleged complaint purports to be sworn to by one of the plaintiffs before the justice on the day judgment was rendered. The moving papers tend to show, by the affidavit of one of the plaintiffs, the justice and the attorney who appeared for the plaintiffs, that the complaint was oral, that the plaintiff was sworn and orally gave evidence which was reduced to writing and which constitutes the alleged verified complaint. By the amended return the plaintiffs seek to have returned a statement of what actually [510] took place before the justice. The important circumstance sought to be returned is that what is called tlie verified complaint by the justice was in fact an abstract of the oral testimony. If the plaintiffs produced evidence before the justice and the justice in his return has called that evidence a verified complaint, it would be a miscarriage of justice that plaintiffs should now be defeated on account of such an error by the magistrate. If plaintiffs’ oral evidence was taken in court it is not, perhaps, very material what the justice called it. The court wants the facts, and the mistake of the justice in calling the plaintiffs’ testimony a verified complaint cannot • vitiate the proceedings. ■ - ■ The order of the County Court should be reversed, with costs, and the motion for an amended return granted, without costs. All concurred.