Pugsley v. . Kisselburgh

By the Court, Johnson, J.

In Brotherson vs. Wright (15 Wend. 257), and The People vs. The Albany Com. Pleas (19 Wend. 123), it appears not to be necessary that the record should show the identity of the suit in the Common Pleas with that begun in the Justice’s Court; for although it did not in those cases appear from the record, yet the suits were regarded as continuations of those commenced in the Justices’ Courts. If this be so, then unless we are prepared to reject the authority of Brown vs. Brown (6 How. Pr. R. 320), in this court, we must look into the motion papers to see whether the suits are thereby shown to have been commenced in Justices’ Courts. If they appear to be so situated, that in the Supreme Court the plaintiffs, on recovering less than $50, would be entitled to full costs against the defendants, even if title did not there come in question, then I think under the case of Brown vs. Brown, we must hold them to have originated in a Justice’s Court. In this case it plainly appears from the affidavits that the cause did, in the sense of the rule, originate in a Justice’s Court,, and therefore the appeal must he dismissed. Motion granted, with ten dollars costs.