John H. Pitkin and Walter J. Pitkin, Appellants, v. Matthew Clifford, Respondent.
Third Department,
March 13, 1907.
Justice’s Court—when return of justice of peace maybe amended.
When on a motion to amend the return of a justice of the peace it appears by the affidavit of the justice that a judgment rendered on the defendant’s default was made on the oral evidence of the plaintiff reduced to writing instead of upon a verified complaint as erroneously stated in the return, the return should he amended to show the true facts.
(Per Cochrane, J.): Although there are authorities to the effect that the return of a justice of the peace may not he contradicted by an amended return, they do not apply to a case where the justice admits a mistake and seeks to correct it. On the same principle a mistake admitted by the justice may be corrected on motion of a party.
Appeal "by the plaintiffs, John H. Pitkin and another, from an order of the County Court of Saratoga county, entered in the office of the clerk of said county on the 26th day of December, 1906, denying the plaintiffs’ motion to require the justice before whom this cause was originally tried to make a further and amended return.
Hiram G. Todd [ James A. Leary of counsel], for the appellants.
Willard J. Miner, for the respondent.
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 *510took 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.
Coohea.nb, J. (concurring):
It has been held that a return of a justice may not'be contradicted by an amended return. (Barber v. Stettheimer, 13 ITun, 198; Fitzgerald v. Fitzgerald, 25 id. 319; Bennett- v. Taylor, 10 id. 51; Thompson- v. Sheridan, 8Ó id. 33.) Those cases probably express the general rule. But such rule should, not be extended beyond the facts to which it has been -applied. If - a justice makes a mistake in his original return it certainly should not be held that he is foreclosed from correcting his own .mistake. In Wait’s Law and Practice (Yol. 3 [5th ed.], p. 962) it is said: If a return is defective on account of some mistake made by the justice, either in omitting or in erroneously, stating material matters, he may apply to the County Court for leave to correct or amend his return.” The author cites no authority in support of his proposition. But in Simpson v. Carter (5 Johns. 350) a justice was permitted on his own motion to correct .his return where he had been imposed on by the fraud of one of the parties. No good reason exists why the same privilege should not be accorded to him in case of a mistake. On the contrary, every argument is in favor of the correction of mistakes. The denial of such a privilege would be manifestly unfair not only to the justice, but to the party against whom the mistake is made. The motion in this case is in form made by *511one of the parties, but it is based on an affidavit of the justice showing that an erroneous return has been made by him as a result either of his inadvertence or misinformation. If on this affidavit the justice himself were asking for leave to correct his return no authority of which I am aware holds that his request should be denied. This motion, although made by the plaintiffs, should be considered from the standpoint of the justice based as it is on his affidavit, and should be treated as though it were in fact made by him. Thus considered, the motion should have been granted. The opposing affidavits show that the return already filed is correct, and that the proposed amendment would pervert the facts. If the justice makes a false amended return the defendant will have his remedy, but. the justice should be at liberty to have his return state what he claims'to have been the facts.
Order reversed, with ten dollars costs and disbursements, and motion for amended return granted, without costs.