Plaintiff moves for an order striking the note of issue and statement of readiness in the above matter and the notice of appeal and dismissing the same. Plaintiff obtained a judgment in the Justice’s Court of the Town of Greenburgh. in the amount of $172; the complaint sought damages of $203.93. In the court below the defendant counterclaimed for an unspecified amount.
Defendant, by notice of appeal, dated April 6, 1965, appealed to this court for a trial de novo. Section 442 of the Justice Court Act provides that where an issue of fact or law was joined before the Justice below and the sum for which judgment was demanded by either party exceeds $250 the appellant may demand in his notice of appeal a trial de novo.
The appellant urges that the total amount demanded by both the complaint and counterclaim exceeds the sum of $250. Section 442 clearly provides that in order to appeal for a new trial either party must have demanded a sum greater than $250 in the court below. It was unclear in that the counterclaim does not specify the amount of damages involved. It is clear in his papers in opposition to the motion that he demands $200 and did on the trial below. Since neither party demanded judgment in excess of $250, there is no right to demand a new trial.
The only question remaining is whether the appeal should be dismissed or whether it may be construed as an appeal pursuant to section 428 of the Justice Court Act. The appeal should not be dismissed. (Harding v. Pratt, 37 Misc. 243; Risley v. Van Delinder, 17 Misc. 661.) The only matters reviewable by this court are the questions of law involved herein. (Lefebvre v. Poirier, 57 N. Y. S. 2d 629.) Defendant should proceed accordingly.